390
Kennedy, J., dissenting
The District Court relied on this uncontested fact to draw an inference that the Law School's pursuit of critical mass mutated into the equivalent of a quota. 137 F. Supp. 2d 821, 851 (ED Mich. 2001). Admittedly, there were greater fluctuations among enrolled minorities in the preceding years, 1987-1994, by as much as 5% or 6%. The percentage of minority offers, however, at no point fell below 12%, historically defined by the Law School as the bottom of its critical mass range. The greater variance during the earlier years, in any event, does not dispel suspicion that the school engaged in racial balancing. The data would be consistent with an inference that the Law School modified its target only twice, in 1991 (from 13% to 19%), and then again in 1995 (back from 20% to 13%). The intervening year, 1993, when the percentage dropped to 14.5%, could be an aberration, caused by the school's miscalculation as to how many applicants with offers would accept or by its redefinition, made in April 1992, of which minority groups were entitled to race-based preference. See Brief for Respondent Bollinger et al. 49, n. 79.
| Year | Percentage of enrolled minority students |
| 1987 | 12.3% |
| 1988 | 13.6% |
| 1989 | 14.4% |
| 1990 | 13.4% |
| 1991 | 19.1% |
| 1992 | 19.8% |
| 1993 | 14.5% |
| 1994 | 20.1% |
| 1995 | 13.5% |
| 1996 | 13.8% |
| 1997 | 13.6% |
| 1998 | 13.8% |
The narrow fluctuation band raises an inference that the Law School subverted individual determination, and strict
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