Nos. 02-241, 02-516
	
IN THE
Supreme Court of the United States
——————
Barbara Grutter,
Petitioner,
v.
Lee Bollinger, et al.,
Respondent.
Jennifer Gratz and Patrick Hamacher,
Petitioners,
v.
Lee Bollinger, et al.,
Respondents.
——————
On Writs of Certiorari to the
United States Court of Appeals for the Sixth Circuit
——————
BRIEF OF AMICI CURIAE 
MASSACHUSETTS INSTITUTE OF TECHNOLOGY,
LELAND STANFORD JUNIOR UNIVERSITY, 
E.I. DU PONT DE NEMOURS AND COMPANY, 
INTERNATIONAL BUSINESS MACHINES CORP.,
 NATIONAL ACADEMY OF SCIENCES, 
NATIONAL ACADEMY OF ENGINEERING, 
NATIONAL ACTION COUNCIL FOR 
MINORITIES IN ENGINEERING, INC., 
IN SUPPORT OF RESPONDENTS
——————
Jamie Lewis Keith
Senior Counsel
Massachusetts Institute of Technology
77 Massachusetts Avenue - #7-206
Cambridge, MA 02139

Debra L. Zumwalt
Vice President & General Counsel
Leland Stanford Junior University
Building 170 – 3d Floor
Stanford, CA 94305	Donald B. Ayer
  Counsel of Record
Elizabeth Rees
Dominick V. Freda
Jessica K. Lowe*
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
(202) 879-3939
*Admitted in Virginia, 
D.C. admission pending	
[Additional Amici Inside Cover]	

Stacey J. Mobley
Sr. Vice President & Chief Admin. Officer & General Counsel
E.I. Du Pont De Nemours and Company
DuPont Building
1077 Market Street
Wilmington, DE 19898

Edward M. Lineen
Sr. Vice President & General Counsel
International Business Machines Corporation
New Orchard Road
Armonk, NY 10504

Audrey Byrd Mosley
Deputy General Counsel
National Academy of  Sciences
National Academy of  Engineering
2101 Constitution Avenue, N.W.
Washington, D.C. 20418

National Action Council for Minorities in Engineering, Inc.
350 5th Avenue, Suite 2212
New York, NY 10118		

	QUESTIONS PRESENTED
	
Case No. 02-241

1.	Does the University of Michigan Law School’s use of racial preferences in student admissions violate the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d), or 42 U.S.C. § 1981?
2.	Should an appellate court required to apply strict scrutiny to governmental race-based preferences review de novo the district court’s findings because the fact issues are “constitutional”?
Case No. 02-516
1.	Does the University of Michigan’s use of racial preferences in undergraduate admissions violate the Equal Protection Clause of the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d), or 42 U.S.C. § 1981?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED	i
TABLE OF AUTHORITIES	iv
STATEMENT OF INTEREST	1
	A.	MIT		1
	B.	Stanford	3
	C.	DuPont	4
	D.	IBM		5
	E.	National Academy of Sciences;
	National Academy of Engineering	6
	F.	National Action Council for Minorities
	in Engineering, Inc.	7
ARGUMENT		9
I.	The Educational Benefits of Achieving
	A Diverse Population Of Students In
	The Fields of Science and Engineering
	Are Compelling	9
	A.	Many Justifications Commonly Offered
	For a Broadly Diverse Student Body Are
	No Less Applicable to Study in the Areas
	of Science and Engineering	9
	B.	In a Number of Critical Respects, the
	Importance of Diversity Is Heightened in
	the Fields of Science and Engineering	11
		1.	Collaboration with diverse individuals
			is a critical part of science and
			engineering	12

TABLE OF CONTENTS
(continued)
Page
		2.	Diversity leads to increased creativity,
			productivity, and success in the 
			science and engineering fields	13
		3.	Diversity within science and
			engineering is vital to this country’s
			economic growth	14
		4.	American businesses operating in the
			areas of science and engineering
			depend on institutions of higher
			education to produce a diverse pool of
			scientists and engineers	18
II.	Race-Conscious Recruiting And Selection
	Processes Are Essential To Achieve Racial
	Diversity At Selective Colleges And
	Universities, Especially In The Fields Of
	Science And Engineering	20
	A.	Selective Universities, Such as Stanford
		and MIT, Consider Race as One of Many
		Factors in Their Admissions Processes	20
	B.	Minorities Would Be Even More Under-
		represented in the Fields of Science and
		Engineering If Race and National Origin
		Were Not Considered in the Admissions
		Processes	25
	C.	The Use of Race as One of Many Factors
		in the Admissions Process Has Been
		Successful at Increasing the Diversity in
		Science and Engineering Academic
		Programs	28

TABLE OF AUTHORITIES
Cases
Page
Keyishian v. Bd. of Regents, 385 U.S. 589 (1967)	24
Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)	10, 24, 25
Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214 (1985)	24, 25
Shelton v. Tucker, 364 U.S. 479 (1960)	25
Sweezy v. New Hampshire, 354 U.S. 234 (1957)	25
Rules
Supreme Court Rule 37	1

Miscellaneous
American Education Research Association & American Psychological Association, National Council for Measurement in Education, Standards for Educational and Psychological Tests (1999)	20
Anthony Lising Antonio et al., The Effects of Racial Diversity on Cognitive Complexity in College Students (2003), available at
http://www.stanford.edu/group/diversity	10
T.K. Bikson & S.A. Law, Rand Report on Global Preparedness and Human Resources: College and Corporate Perspectives (1994)	10, 11
Derek Bok, The Uncertain Future of Race-Sensitive Admissions (forthcoming article) available at http://www.nacua.org/documents/Unceratin _Future_of_Race_Sensitive_Admissions_Revised.pdf.	19
M. Bordonaro et al., Land of Plenty: Diversity as America’s Competitive Edge in Science, Engineering, and Technology, Report of the Congressional Commission on the Advancement of Women and Minorities in Science, Engineering, and Technology Development, Opportunities in Science and Engineering (2000) 	17
William G. Bowen & Derek Bok, The Shape of the River: Long Term Consequences of Considering Race in College and University Admissions (2d ed. 2000)	10, 11, 13, 25, 26, 27, 28, 29
William G. Bowen & Neil L. Rudenstine, Race-Sensitive Admissions: Back to Basics, The Chron. of Higher Educ., Feb. 7, 2003	27, 29
California Department of Education, Educational Demographics Unit, available at http://data1.cde.ca.gov/dataquest/Cbeds1.asp?Enroll=on&PctBlack=on&PctAm=on&PctAsian=on&
PctFil=onPctHisp=on&PctPac=on&PctWhite=on&PctMult=on&Grads=on&cChoice+StatProfl&cYear=2001-02&cLevel=State&submit1=Submit	16
P.B Campbell et al., Upping the Numbers: Using Research-Based Decision Making to Increase Diversity in the Quantitative Disciplines – A Report Commissioned by the GE Fund (2002)	17
Lee Cronbach, A Valedictory:  Reflections on 60 Years in Educational Testing (1995)	21
DuPont:  Diverse and Global, available at http:// www1.dupont.com/dupontglobal/corp/careers/working_diversity.html	19
Patricia Gurin et al., Diversity and Higher Education: Theory and Impact on Educational Outcomes, 72 Harvard Educ. Rev. 330 (2002)	11
Charles O. Holliday, Jr., DuPont Celebrates its Employees Transforming a Science Company Through Diversity, available at http://www.mcca.com/site/data/magazine/ coverstory/DuPont1102.htm;	14, 20
IBM – Diversity as a “Strategic Imperative,” available at http://www.diversityatwork.com/ articles/IBM-Diversity.htm	19
Shirley Ann Jackson, The Quiet Crisis: Falling Short in Producing American Scientific and Technical Talent (Building Engineering and Science Talent, 2002), available at http://bestwork force.org	18
Neal Lane, Increasing Diversity in the Engineering Workforce, 29 The Bridge, No. 2, Summer 1999	13
Helen Lippman, Variety is the spice of a great workforce, Bus. and Health Archive, May 1, 2000	14, 20
Glenn C. Loury, Foreword to William G. Bowen & Derek Bok, The Shape of the River:  Long Term Consequences of Considering Race in College and University Admissions (2d ed. 2000)	29
Gary S. May & Daryl E. Chubin, A Retrospective on Undergraduate Engineering Success for Underrepresented Minority Students, 92 J. of Eng’g Educ., Jan. 2003	18
Massachusetts Institute of Technology, In the Public Interest:  Report of the Ad Hoc Faculty Committee on Access to and Disclosure of Scientific Information	12, 15
MIT’s Mission Statement, available at http://web.mit.edu/facts/ mission.html)	2
National Research Council, National Academy Press, Ability Testing of Handicapped People:  Dilemma for Government, Science, and the Public (1982)	21
National Research Council, National Academy Press, Ability Testing:  Uses, Consequences, and Controversies (1982)	21
National Research Council, National Academy Press, Educating One and All (1997)	21
National Research Council, National Academy Press, Embedding Questions (1999)	21
National Research Council, National Academy Press, Evaluating and Improving Undergraduate Teaching in Science, Technology, Engineering, and Mathematics (2003)	21
National Research Council, National Academy Press, Fairness in Employment Testing (1989)	21
National Research Council, National Academy Press, Grading the Nation’s Report Card (1999)	21
National Research Council, National Academy Press, High Stakes: Testing for Tracking, Promotion, and Graduation (1999)	21
National Research Council, National Academy Press, Knowing What Students Know (2001)	21
National Research Council, National Academy Press, Myths and Tradeoffs:  The Role of Tests in Undergraduate Admissions (1999) 	21
National Research Council, National Academy Press, Performance Assessment for the Workplace (1991)	21
National Research Council, National Academy Press, Scientific Research in Education (2002)	21
National Research Council, National Academy Press, Testing, Teaching, and Learning (1999)	21
National Research Council, National Academy Press, Uncommon Measures (1999)	21
National Science Foundation, 1 Science and Engineering Indicators 2002 
	(2002)	9, 12, 13, 15, 16, 17, 18, 26, 29
National Science Foundation, 2 Science and Engineering Indicators 2002 (2002) (Appendix Tables)	16, 17
National Science Foundation, Women, Minorities and Persons with Disabilities in Science and Engineering: 2000 (2000)	13, 16, 17
Charlan J. Nemeth, Differential Contributions of Majority and Minority Influence, 93 Psych. Rev. 23 (1986)	13
Note, An Evidentiary Framework for Diversity As a Compelling Interest in Higher Education, 109 Harv. L. Rev. 1357 (1996)	10
John Brooks Slaughter & Daryl E. Chubin, NACME, Engineering, and “Generation Next,” presented at the Pan-Organizational Summit on the U.S. Science and Engineering Workforce, Government-University-Industry-Research-Roundtable, Washington, D.C., Nov. 11-12 2002	8, 17
Jane Stanford, 1902 speech, quoted in Gerhard Casper, Statement on Affirmative Action at Stanford University (Oct. 4, 1995), available at http://stanford.edu/dept/ pres-provost/president/ speeches/951004affaction.html	3
Stanford University, School of Engineering, 2000-2001 Annual Report, available at http://soe.stanford.edu/AR00-01/letter_ dean.html	12
Claude M. Steele & J. Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. of Personality & Social Psychol. 797 (1995)	27
Claude M. Steele, A Threat in the Air:  How Stereotypes Shape Intellectual Identity and Performance, 52 Am. Psychologist 613 (1997)	27
The Committee of Associated Institutions of Science and Arts, Objects and Plan of an
Institution of Technology (2d ed. 1861)	1
The Evolving MIT Campus: Shaping the Future, available at http://web.mit.edu/evolving/ shaping.html	12
The Evolving MIT Campus: Student Life and Learning, available at http://web.mit.edu/ evolving/student. html 	12
Together: At IBM, diversity is just good business, available at http://www.ibm.com/ news/ls/2000/01/diversity_intro/phtml	19
U.S. Census Bureau, Dynamic Diversity:  Projected Changes in U.S. Race and Ethnic Composition 1995 to 2050 (1999)	16
U.S. Department of Commerce, Minority Business Development Agency, Minority Population Growth: 1995 to 2050 (1999)	16
Clarence G. Williams, Technology and the Dream: Reflections on the Black Experience at MIT, 1941-1999 (2001)	11, 26, 28
William A. Wulf, Diversity in Engineering, 28 The Bridge, No. 4, Winter 1998 (National Academy of Engineering)	13, 14

	statement of INTEREST
Amici include two leading institutions of higher education in the fields of science and engineering, two of America’s largest industrial companies, which are major employers of scientists and engineers, the National Academy of Sciences, the National Academy of Engineering, and the National Action Council for Minorities in Engineering, Inc.  These parties submit this brief to address (1) the important role that diversity, including racial and ethnic diversity, plays in achieving the broad educational missions of institutions of higher education, with particular focus on the fields of science and engineering; and (2) why consideration of race and ethnic origin as one among many factors in recruiting and admission of students to selective programs in science and engineering is essential if the important goal of diversity is to be achieved.
A.	MIT
The Massachusetts Institute of Technology was founded in 1861 by natural scientist William Barton Rogers to be a new kind of private educational institution relevant to an increasingly industrialized America.  Rogers, who pioneered the development of the teaching laboratory, believed that professional competence is best fostered by focusing attention on real-world problems.  He envisioned an institution that would exist for the betterment of humankind and would provide for “the intelligent guidance of enterprise and labor . . . step by step, with the advances of scientific and practical discovery.”  In keeping with Rogers’ vision, MIT remains committed to bringing “knowledge to bear on the world’s great challenges.”
MIT enrolls over 10,000 undergraduate and graduate students, in 27 academic departments within five schools, with many interdepartmental programs, laboratories, and centers whose work extends beyond traditional departmental boundaries.  Though the university is widely known for its strength in science, engineering, and technology, MIT also offers degrees in the humanities, business administration, city planning, and other fields.  Its undergraduate admissions process is highly competitive, and the school receives applications from many more qualified students than it can accommodate.  From the well-qualified applicants among this group, MIT seeks to identify individuals with creative talent and high motivation, whose achievements indicate that they not only will succeed at MIT, but also will contribute to the educational experience of all students at MIT and will likely contribute to the betterment of humankind in their careers.
In making this assessment, MIT does not and cannot rely on grades and test scores as the only factors in its admissions decisions.  MIT regularly denies admission to individuals with very high grades and scores who lack the other distinctive qualities it seeks.  MIT considers all aspects of each candidate’s background, including racial and ethnic factors among many others, in the belief that such an individual assessment of each applicant within context is the best way to evaluate a candidate’s talent and potential.  In selecting the students who will be admitted, MIT does not use any quotas, targets, or mathematical formulas.  The educational value MIT offers includes the “intellectual stimulation of a diverse campus community,” and MIT believes that a diverse student body is essential to its mission.  That mission is to serve the nation and prepare its graduates to address challenges in a diverse world that is increasingly driven by science, engineering and technology – creative fields that require effective collaboration among individuals of many races, national origins and backgrounds.
B.	Stanford
The Leland Stanford Junior University was founded in 1891 by Leland and Jane Stanford, in memory of their son.  In the words of Jane Stanford, the moving spirit of the founders was the “love of humanity and a desire to render the greatest possible service to mankind.”  The founders conceived that “[t]he public at large, and not alone the comparatively few students who can attend the University, are the chief and ultimate beneficiaries of the foundation.”  The University’s “chief object” was “the instruction of students with a view to producing leaders and educators in every field of science and industry.”  Consistent with that purpose, Stanford early on adopted inclusive admissions policies, including the admission of women, and, for many years, a policy of charging no tuition, to “keep[] open an avenue whereby the deserving and exceptional may rise through their own efforts from the lowest to the highest station in life.”
Today, Stanford has almost 14,000 students, who are divided nearly equally between the undergraduate, and the graduate and professional schools, and study in virtually all areas of the liberal arts and sciences.  Approximately 30 to 40% of undergraduate degrees and 45 to 50% of graduate degrees are awarded in the fields of engineering, earth sciences, and the natural sciences.
Admission to Stanford is highly selective, and only students who are well-qualified for the challenges of its curriculum are admitted.  In selecting among the well-qualified, Stanford engages in a highly individualized and subjective process that strives to consider each candidate as a complete person.  It uses no quotas, targets, or mathematical formulas of any kind.  In considering the full range of each candidate’s background and accomplishments, Stanford is strongly of the view that race and national origin should no more be entirely ignored than that they should be regarded as dispositive. In context, these factors, among numerous others, may sometimes shed light on the critical questions of a candidate’s ability to deal with adversity and make the most of the opportunities that the University offers.  Sometimes, too, they may bear on what the candidate will bring to the educational experience of others in the academic community.  In addition, Stanford remains highly attentive, as it has been for more than a century, to the roles that its graduates will play in the world.  For many reasons, Stanford’s mission of pursuing “the betterment of mankind” demands that it reach out to train leaders from all backgrounds and races, and this is equally true in the fields of science and engineering.  
C.	DuPont
DuPont is an industrial, science and engineering-based company that operates in 70 countries worldwide.  It has 135 manufacturing plants and approximately 79,000 employees – half of whom work outside the United States.  It was founded by E.I. du Pont in 1802 as a gunpowder manufacturer; a hundred years later, its focus shifted to global chemicals, materials, and energy.  Today DuPont applies science to real-life problems to make life safer, more comfortable, and more efficient.
DuPont believes that diversity is one of its greatest assets and considers it a core value of the company.  DuPont has found that the insights and cultural sensitivities of a diverse workforce lead to new customer bases and market opportunities by offering greater understanding of customers who, themselves, represent many races, cultures, countries and experiences.  Its success in its third century of business is dependent on cultivating a workforce that understands the many needs that DuPont’s products serve.  DuPont is heavily dependent on American institutions of higher education to train the future generations of diverse scientists and engineers who are essential if DuPont is to fulfill its mission of recognizing and meeting real needs throughout the world.
D. IBM
With business in 164 countries worldwide, the International Business Machines Corporation (“IBM”) is the world’s largest information technology company, and also the world leader in business and technology services consulting, hardware, and I/T financing.  IBM has a long history of embracing workforce diversity as a competitive strategy and continues to make diversity of all types a priority of its corporate culture.  IBM has found workforce diversity to be a strategic imperative.
Business globalization and growing diversity in the United States means that IBM customers reflect a variety of racial, ethnic, and other backgrounds.  It is an imperative for IBM to understand and relate to the values of its customers.  A diverse workforce brings perspectives and ideas that a homogenous workforce might miss.  IBM’s success is a direct result of its diverse and talented workforce.  Moreover, a diverse workforce enables IBM to attract and retain employees that better serve the needs of its customers.  For these reasons, IBM has found that diversity is a business imperative.
IBM depends upon American institutions of higher education to train the scientists and engineers whom it employs, and its ability to identify and hire well-qualified candidates to meet its needs is critical to its success.  IBM relies on these institutions to provide a diverse pool of technical talent.  IBM believes that precluding selective private and public universities from considering race as one of many factors in the admissions process will decrease the availability of minority scientists and engineers, and will impede the ability of America’s businesses to maintain the diverse workforce necessary to meet the needs of an increasingly diverse and global customer base.
E.	National Academy of Sciences;
	National Academy of Engineering
The National Academy of Sciences (“NAS”) and the National Academy of Engineering (“NAE”) are part of an umbrella organization of non-profit honorific national societies that work outside the framework of government to ensure independent advice on matters of science, technology and medicine.  Since their inception, the National Academies have been called upon many times by the federal government to inquire into and report upon scientific issues of great moment.  They have advised the Army and the Navy on science-related defense issues, served as key scientific advisers throughout the history of the US space program, and coordinated development of new national science standards for kindergarten through grade 12, along with many other projects.
NAS was created by an act of Congress in 1863, with a mission to “investigate, examine, experiment, and report upon any subject of science or art” “whenever called upon by any department or agency of the government.”  Today it has 2,280 members from 31 scientific disciplines and 39 foreign countries.  NAS publishes a scholarly journal, Proceedings of the National Academy of Sciences, organizes symposia and convenes meetings on issues of national importance and urgency, and participates in the Committee on International Security and Arms Control and the Committee on Human Rights.
NAE was founded in 1964 and operates under the charter of the National Academy of Sciences.  NAE has over 2,000 peer-elected members and foreign associates – senior professionals in business, academia, and government.  These leaders provide guidance for over 100 projects each year that address issues related to engineering, technology, and quality of life.  In 1999, NAE began a “Diversity in Engineering” initiative whose mission is to increase the diversity of the U.S. engineering workforce by developing a strong domestic talent pool.  In addressing this goal, NAE has sought to act as a facilitator, organizer, and catalyst for change by gathering stakeholders, convening summits, and establishing taskforces.  NAE believes that encouraging and sustaining a diverse population of engineers is one of the major challenges facing the profession today.
F.	National Action Council for Minorities in Engineering, Inc.
The National Action Council for Minorities in Engineering, Inc. (“NACME”), was established in 1974 by a group of concerned business leaders to develop strategies for increasing the participation of under-represented minorities in engineering, technology, and math and science-based careers.  Since 1974, NACME has provided leadership and support for the national effort to increase the representation of successful African Americans, Native Americans, and Latinos in these fields.  NACME is the nation’s largest private source of scholarships for minorities in engineering.  Since 1980, more than 17,000 students (nearly 15 percent of all minority engineering graduates) have received NACME support.  NACME also conducts research and analyzes educational trends in engineering enrollment, degree completion, and workforce participation; advances policies and practices that support the development of a diverse corps of world-class technology professionals; and delivers a range of professional development programs to educators and practitioners to ensure that students receive the quality learning and work experiences they need.
Leadership in the global economy depends upon an ever growing, more diverse cadre of world-class engineers, scientists, and technologists.  At present, minorities make up only ten percent of engineering majors, even though they make up one third of the college-age population.  NACME believes that consideration of all factors, including race and national origin, in the admissions process is critical to fostering a diverse technical workforce.  Moreover, it finds that over-emphasis on standardized test scores poses a special danger to this goal.  Misuse of standardized tests – though intended for good – has benefited those already advantaged in the college admission process, while preserving barriers to students from groups historically under-participating in higher education.  As growth in the minority population continues to outpace that of the non-minority population, there exists a critical talent pool from which to draw many of tomorrow’s technology leaders.  NACME believes that it is in America’s collective interest to examine candidates for university admission in such a way as to maximize our ability to identify these potential future participants in the engineering and technology enterprise.
	
ARGUMENT
I.	The Educational Benefits Of Achieving A Diverse Population Of Students In The Fields Of Science And Engineering Are Compelling
MIT and Stanford share the views of other colleges and universities, public and private, about the need for diversity in teaching the humanities and liberal arts and in professional schools.  See Br. of Harvard Univ., et al..  Likewise, DuPont and IBM, as major international corporations, concur with other such businesses concerning the general need for diversity in education in order to prepare future business and technical leaders to deal in a shrinking and diverse world.  See Br. of 38 Leading American Businesses.
But Amici chose to file this brief, instead of joining another, more general one, in order to make a complementary but additional point that is sometimes overlooked.  Amici hope to dispel the view that diversity in science and engineering education is any less important than in the humanities and liberal arts.  Amici assert that diversity (broadly defined and including racial and ethnic diversity) is in fact absolutely essential to the advancement of science and engineering – in part for the same reasons that it is important for higher education generally, but also for a host of other reasons peculiarly related to these fields, and to their critical world role.  And minorities are even more under-represented in science and engineering fields than in others.
A.	Many Justifications Commonly Offered For A Broadly Diverse Student Body Are No Less Applicable To Study In The Areas Of Science And Engineering
Much of what students learn in college comes from experiences studying, living, and working with other students, faculty, and administrators in an academic community that extends beyond the classroom.  This is true in all disciplines, including science and engineering.  For that reason, in the spirit of Justice Powell’s opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), many academic institutions, including Stanford and MIT, regard a diverse student body – broadly defined to include consideration of race, national origin, and gender as well as other demographic characteristics such as geographic background and socioeconomic disadvantage – to be an important aspect of the education they provide their students, and believe that such diversity greatly enhances the experience of all students.
A diverse academic community stimulates critical, reflective, and complex thinking, enhancing students’ problem-solving abilities.  Moreover, racial and ethnic diversity in higher education significantly contributes to students’ ability to live and work together, and to communicate across racial boundaries – skills of great importance in our increasingly heterogeneous world.  The ability to work effectively and live harmoniously with diverse individuals is significantly more likely to be acquired in multi-cultural and multi-racial academic settings.  As one MIT graduate, Kofi A. Annan (SM 1972 (management)), put it:
   I would hope that in the education we give to the young – because we are preparing the leaders of the twenty-first century, they are our future – they will come to understand that the world today is an interdependent world, a global village.  No one . . . can afford to think in purely local terms.  If you do, you are going to be a loser down the line.
B.	In A Number Of Critical Respects, The Importance Of Diversity Is Heightened In The Fields Of Science And Engineering
1.	Collaboration with diverse individuals is a critical part of science and engineering
The advancement of science has become an increasingly collaborative enterprise, and science and engineering have increasingly become global enterprises that cannot be limited by boundaries, backgrounds, races or cultures.  “There is no national science just as there is no national multiplication table.”  “The common laws of nature cross political boundaries, and the international movement of people and knowledge made science global long before ‘globalization’ became a label for the increasing interconnections among the world’s economies.”
As the United States becomes both more racially and ethnically diverse, and increasingly connected with the other nations and peoples of the world, the need for scientists and engineers to work with individuals of other races and ethnicities becomes an inescapable reality.  Consequently, the National Science Foundation’s 1997-to-2003 strategic plan requires the agency “to strive for a diverse, globally oriented workforce of scientists and engineers.”  Collaboration, both nationally and internationally, with people of other races, cultures and ethnic backgrounds, has increased significantly and is of vital importance.
2.	Diversity leads to increased creativity, productivity, and success in the science and engineering fields
Because science and engineering are inherently creative professions, ideas and innovations in these fields are affected by the life experiences of the people involved in their creation.  Diverse work teams create better and more innovative products and ideas than homogeneous teams.  Indeed, multifaceted diversity in a company, including racial and ethnic, as well as gender and other kinds of diversity, “consistently correlates to superior corporate performance.”  As William Wulf, President of the National Academy of Engineering, noted in 1998, there is “a real economic cost” that flows from an absence of racial and cultural diversity in the field of engineering:
[T]he range of design options considered in a team lacking diversity will be smaller. . . .  [T]he constraints on the design will not be properly interpreted. . . .  [T]he product that serves a broader international customer base, or a segment of this nation’s melting pot, or our handicapped, may not be found. . . .  [T]he most elegant solution may never be pursued. . . .  [This cost] is measured in design options not considered, in needs unsatisfied and hence unfulfilled.  It is measured in ‘might have beens,’ and those kinds of costs are very hard to measure.  That doesn’t change the fact that they are very real and very important.
3.	Diversity within science and engineering is vital to this country’s economic growth
“[T]he national and world economies, as well as our national security, increasingly are driven by science, engineering and technology.”  These fields increase productivity and are the sources of discoveries and inventions that enhance everyone’s well-being.  For decades, the United States has enjoyed a leadership role in the development and implementation of cutting-edge research and technology.  As a result, this country has benefited many times over by its investment in science and engineering research in industry, universities, and government laboratories.  It is no exaggeration to say that “[n]ational security, the health of our nation, and the strength of our economy depend heavily on the advancement of science and technology.”
Only a well-educated workforce comprised of people who have learned to work productively and creatively with individuals from a multitude of races and backgrounds can maintain America’s leadership and competitiveness in the increasingly diverse and interconnected world economy.  The increasing racial and ethnic diversity of our population magnifies the importance of educating more minority scientists and engineers.
Demographic studies make this fact undeniable.  Over the next 30 years, the numbers of minorities in this country will grow from their current number (approximately one-fourth of the population) to constitute over one-third of the U.S. population, while the white population will decrease.  African Americans, Hispanics and Native Americans already constitute 30% of the college age population today, and by 2025, the National Science Foundation estimates that they will comprise 38% of the college age population.  It is anticipated that the minority population will actually surpass the non-minority population shortly after 2050. 
While their representation in the population is substantial and increasing, African-Americans, Hispanics, and Native Americans are currently significantly under-represented in the study and practice of science and engineering.  Of the approximately 18% of all bachelor’s degrees that have historically been earned in the natural and physical sciences, mathematics, and engineering fields, these minority groups, who make up 30% of the college population, together account for only 13%.  Unsurprisingly, the low representation of these groups in science and engineering academic programs has led to disproportionately low numbers of minorities in science and engineering occupations.  As minority representation in the population steadily increases, their underrepresentation in science and engineering fields becomes ever more consequential to the ability of American businesses to meet the demands of the marketplace.  
To the extent that the need for technology leadership cannot be met by American business, such leadership will shift to countries with higher “research capacity, scientific output, and innovative capacity.”  Enrollment of students in science and engineering programs in other countries is high and growing relative to the United States.  The American pool of science and engineering students and researchers must be deepened by cultivating the scientific and technical talents of all its citizens, not just those groups that have traditionally worked in science, technology, and engineering fields.
4.	American businesses operating in the areas of science and engineering depend on institutions of higher education to produce a diverse pool of scientists and engineers
In seeking to increase the racial and ethnic diversity of their science and engineering programs, selective private universities, such as MIT and Stanford, as well as public ones, define their educational missions broadly to include service of the nation to meet the great challenges of the times.  Thus, they are motivated in part by the needs of the important professions and occupations in which their students will find employment.  Employers of scientists and engineers seek diverse candidates, and they rely on colleges and universities to provide them with employees who possess the skills necessary to succeed in today’s global and collaborative scientific and technological environment.
The business amici illustrate this need.  DuPont and IBM believe that having a racially and ethnically diverse workforce is critical to their strength and success.  “From Dupont’s perspective, to continue to be globally competitive our company must have an employee base that is as diverse as the customers who buy our products, the shareholders who buy our stock, the vendors who supply us with goods and services, and the communities in which we operate.”  Likewise, diversifying its workforce is part of IBM’s “competitive strategy,” which “has become more important than ever in the face of today’s changing demographics and the rapid globalization of business.”  Not only are diverse work teams more innovative and creative, but they actually are proven to “yield better business solutions – and better bottom-line results.”  These companies, and countless others like them, therefore support the race-conscious admissions processes of selective private and public schools like MIT and Stanford.
II.	Race-Conscious Recruiting And Selection Processes Are Essential To Achieve Racial Diversity At Selective Colleges And Universities, Especially In The Fields Of Science And Engineering
A.		Selective Universities, Such As Stanford And MIT, Consider Race As One Of Many Factors In Their Admissions Processes
For many reasons, MIT, Stanford, and most other competitive universities have long concluded that neither test scores, grades, nor any other single indicator offers a simple solution to the complex question of who should be admitted from a large pool of qualified applicants.  While such indicators provide some measure of ability and/or performance within a particular frame of reference, standing alone they provide a poor basis for making admissions decisions.  Overwhelming empirical evidence supported by over a century of scientific research unrelated to concerns over racial diversity indicates that a university’s complex educational goals and institutional mission cannot be achieved solely by relying on objective criteria such as standardized test scores.  This research, including studies by the National Research Council, has revealed that the use of standardized-test scores as the sole measure of merit is scientifically indefensible and that the claim that a higher score should guarantee one student admission over another is not justifiable on empirical grounds.  Thus, selective private colleges and universities, as well as many public ones, generally seek to advance their objectives by employing admissions processes that take into account a multitude of individual factors.
While no two admissions processes are precisely identical, many institutions utilize a highly individualized and subjective process similar to those employed by MIT and Stanford.  Such processes are very different from the percentage plans used by Texas, California, and Florida, which condition admission on a single criterion, and which, in any event, are utterly useless to national, selective universities.  Omitting many specifics of procedure, sequence, and terminology in which they differ, MIT and Stanford have in common (with each other and many other institutions) the following elements:
Both MIT and Stanford confine in-depth consideration to candidates likely to have strong prospects for academic success at these institutions by first setting a high threshold level of intellectual ability and achievement.  Both schools discern this required minimum level of qualification from a number of indicators, which include grades and test scores and do not include race.  These are the students who, based on these indicators, demonstrate a high level of qualification and the ability to succeed academically. 
Of the large pool of capable candidates, MIT and Stanford have the capacity to admit only a small fraction.  Defining qualification of this capable pool in much broader terms than just grades and test scores, and rejecting many candidates who have very high scores but lack other important qualities, MIT and Stanford employ a subjective process to consider each candidate’s full range of accomplishments, experiences, and potential.  Most fundamentally, in addition to academic achievement and intellectual vitality, experienced admissions officers in both schools search for indicators of a candidate’s talent, creativity, problem-solving orientation, dedication, and determination.  These qualities and others are evaluated in the context of a candidate’s experiences, including culture, advantages enjoyed, disadvantages overcome, potential realized, “distance traveled,” and all other relevant information.
Race, national origin, and ethnicity, along with other considerations, are sometimes relevant in this assessment of an individual because they can provide a social and cultural context in which to understand an individual’s accomplishments and life experience.  They allow a candidate’s achievements to be viewed through the lens of the culture and community in which they were realized.  Arbitrary elimination of race or national origin from the many factors that create the context in which an individual’s talent and motivation can be understood would compromise the integrity of the process and would impair the ability of MIT and Stanford to identify the most promising applicants – that is those applicants who would profit most from and contribute most to an MIT or Stanford education.
Additionally, this individualized assessment of each candidate is guided by critical considerations relating to the universities' missions.  First, both MIT and Stanford define their missions broadly to embrace the education of their student bodies and service to the nation, by, as Jane Stanford expressed it, “render[ing] the greatest possible service to mankind,” and, as MIT Founder William Barton Rogers put it, “secur[ing] . . . great public benefits.” Thus, they train future leaders for work in critical areas, including – primarily, for MIT, and importantly, for Stanford – science and engineering.  Neither MIT nor Stanford makes admission decisions to compensate for past wrongs.  Instead, they seek diversity in part because in order for these science and technology leaders to develop products and services to improve the lives of people in our diverse world, they must be trained in a heterogeneous environment and be responsive to the needs of each segment of the population.  Leaders of science and engineering industry, including DuPont and IBM, confirm what is obvious from the census data – that the global competitiveness of U.S. industry, and the health of the national and world economies, depend on increasing the number of qualified minority engineers and scientists.  MIT and Stanford thus believe that in order to most effectively advance their broader educational purposes, it is essential to be cognizant of many of an applicant’s personal factors, including race and national origin.
Second, MIT and Stanford also pay attention to diversity read broadly, in the make-up of the academic community because such diversity provides important educational benefits.  Both universities recognize that much learning goes on between and among students, faculty, and administrators, often outside the classroom, and that the learning experience for all students is enhanced by the presence of students offering different cultures, life experiences, and areas of accomplishment.  We must not pretend that racial discrimination against minorities is no longer an issue in the United States.  Although one’s race does not dictate one’s views – and this is part of what diversity on campus teaches – race, ethnicity, and national origin do contribute to one’s experiences and opportunities in life, adding relevant perspectives.
B.	Minorities Would Be Even More Under-Represented In The Fields Of Science And Engineering If Race And National Origin Were Not Considered In The Admissions Process
 In the selection process used by MIT and Stanford, which first identifies a group of well-qualified and highly capable applicants and then admits a much smaller number from among them, based on broad evaluation of each individual, consideration of race along with many other factors in making the final decisions is both necessary and entirely appropriate.  To require otherwise would both impair their ability to identify the most promising candidates and produce a less diverse educational environment.
Science and engineering are demanding fields that require a significant measure of pre-college preparation in science and mathematics, and an atmosphere that nurtures such professional aspirations.  It is a shameful but true fact that minorities tend disproportionately to attend lower quality schools, where both the encouragement and the opportunity to prepare oneself for these areas of study are less accessible.  Also, the current, predominantly non-minority make-up of the science and engineering professions means that minorities have few role models and mentors to help guide them to study and pursue careers in these fields.  In addition, nationally, African-Americans have a 50% lower likelihood than Caucasians of graduating in the top 10% of their high school class, and have a 40% lower likelihood of having an A average.  And, according to the College Board, on the SAT test, minorities not only score on average roughly 10% below the mean of all test takers, but they also constitute a disproportionately small segment of those scoring in the top quartile on those tests.  Among all test takers in 2002, scores of 700 or higher were achieved by roughly 5% of those taking the verbal, and 6% of those taking the math portion of the test; for minorities, those respective percentages are around one percent – or fewer than 750 African Americans and 1500 Hispanics nationwide.  Scores above 600 were achieved by 21% of those taking the verbal, and 24% of those taking the math; for African Americans the corresponding percentage is just over 5% on both tests, and for Hispanics, it is about 9% on the verbal and almost 10% on the math.  For these reasons, the pool of minority students who have high enough scores and grades to be seriously considered on a more individualized basis for admission to selective science and engineering programs is disproportionately small.  
MIT’s and Stanford’s ultimate selection of students for admission, from the large group of applicants initially determined to be well qualified and highly capable, is not based only on grades and test scores.  If it were, minorities would be even more significantly under-represented than they already are in the fields of science and engineering.  And this would be profoundly unfair to the individuals affected and deprive the nation of talented graduates who reflect the diversity of America.   
C.	The Use Of Race As One Of Many Factors In The Admissions Process Has Been Successful At Increasing The Diversity In Science And Engineering Academic Programs
By considering race as one of many factors in the admissions process, MIT has been able to increase minority undergraduate enrollment in a gradual but steady manner – from less than 1% in 1968 to 8% in 1980, 15% in 1990, and 19% in 2000.  At Stanford, while diversity in the overall undergraduate student body has increased significantly during this period, undergraduate degrees from the School of Engineering for traditionally underrepresented minorities have increased only slightly.  As Glenn C. Loury wrote in his forward to Shape of the River, race-conscious admissions “must continue if the gains are to be maintained, and . . . administrators at selective colleges and universities, acting as just and responsible stewards, can do no less than stay the course.”  Although progress has been made, the national demographics and limited pool of qualified minority candidates available to MIT and Stanford indicate that more, not less, is needed.
Moreover, the weight of the evidence and the experience of MIT and Stanford demonstrate that attendance at selective universities provides substantial benefits to all students. Students from selective schools have many opportunities after graduation.  Graduation rates for both minority and majority students from MIT and Stanford, and from highly selective schools generally, are very high when compared with national averages and with minority graduation rates at less selective schools.  And most science and engineering graduates, including minority graduates, are finding jobs in their fields.  It has been the experience of MIT and Stanford, borne out by yield data, that candidates – both minority and non-minority – when given the choice between attending a highly selective school and a less selective one, overwhelmingly choose the more selective alternative.
						Respectfully submitted,

Jamie Lewis Keith
Senior Counsel
Massachusetts Institute of Technology
77 Massachusetts Avenue - #7-206
Cambridge, MA 02139
Debra L. Zumwalt
Vice President & General Counsel
Leland Stanford Junior University
Building 170 – 3rd Floor
Stanford, CA  94305
Stacey J. Mobley
Sr. Vice President & Chief Admin. Officer & General Counsel
E.I. Du Pont De Nemours and Company
DuPont Building
1077 Market Street
Wilmington, DE 19898
Edward M. Lineen
Sr. Vice President & General Counsel
International Business Machines Corporation
New Orchard Road
Armonk NY 10504
Audrey Byrd Mosley
Deputy General Counsel
National Academy of  Sciences
National Academy of  Engineering
2101 Constitution Avenue, N.W.
Washington, D.C. 20418
National Action Council for Minorities in Engineering, Inc.
350 5th Avenue, Suite 2212
New York, NY 10118	Donald B. Ayer
  Counsel of Record
Elizabeth Rees
Dominick V. Freda
Jessica K. Lowe*
Jones Day
51 Louisiana Avenue, N.W.
Washington, D.C. 20001
(202) 879-3939
*Admitted in Virginia, D.C. admission pending	

February 18, 2003