The United States Supreme Court
The University of Michigan Admissions Lawsuits

Gratz v. Bollinger
11 a.m., April 1, 2003

Kirk O. Kolbo, Esq., in behalf of Jennifer Gratz & Patrick Hamacher
Theodore B. Olson, United States Solicitor General, supporting Gratz & Hamacher John Payton, Esq., in behalf of the Michigan University College of Literature, Science and the Arts
Chief Justice William H. Rehnquist, then Justices Sandra Day O'Connor, John Paul Stevens, Ruth Bader Ginsburg, Steven G. Breyer, Antonin Scalia, Anthony M. Kennedy, David H. Souter, and Clarence Thomas

Comments indented in italics by Curtis Crawford*


CHIEF JUSTICE REHNQUIST: We will hear argument next in No. 02-516, Jennifer Gratz and Patrick Hamacher v. Lee Bollinger. Mr. Kolbo.


MR. KOLBO: Mr. Chief Justice, and may it please the Court: Jennifer Gratz and Patrick Hamacher were denied admission to the University of Michigan's flagship undergraduate institution, the College of Literature and Science and the Arts under an admissions -- under admissions policies that facially and flagrantly discriminated on the basis of race. The history of their case and of the University's defense of its discriminatory admissions policies is a powerful argument about the perils of entrusting to the discretionary judgments of educators the protection of *the Constitution's guarantee of equality to all individuals.* For nearly five years, the University vigorously defended in the district court and the court of appeals the admissions systems that were in place when petitioners Gratz and Hamacher applied. These systems featured separate admissions guidelines for different races, protected or reserved seats in the class for select minorities, that is blacks, Hispanics and Native Americans, racially-segregated wait-lists, and a policy of never automatically rejecting students from their preferred -- from the preferred minority groups while doing so for others.

  * The Constitution guarantees "equality to all individuals" in certain respects: e.g., an equal right not to be racially discriminated against. However, there is no constitutional "guarantee of equality" in other respects, such as educational, professional, economic or political achievement.

JUSTICE O'CONNOR: Mr. -- Mr. Kolbo, as a preliminary matter, would you address the question of whether the named plaintiff Patrick Hamacher has standing in this. He was denied admission, I think, in 1997?

MR. KOLBO: Correct, Your Honor.

JUSTICE O'CONNOR: And he claimed that he intended to apply to transfer to the University of Michigan, from wherever he was going to school, and yet the transfer admissions policy, I guess isn't before us.

MR. KOLBO: The transfer admissions policy itself is not before you -- the Court, Your Honor. But the policy is essentially the same with respect to the consideration of race and the Court did -- we did certify a class in this case, with respect to Mr. Hamacher, and I believe it was December of 1998. We moved for class certification and the district court granted that certification. And as a result of that, of course, anything with respect -- anything that's happened with respect to Mr. Hamacher subsequent to that time it seems to us is not irrelevant to the consideration of standing.

JUSTICE STEVENS: Are you sure that the transfer policy is the same as the admissions policy for new freshmen?

MR. KOLBO: Well, it's not exactly the --

JUSTICE STEVENS: We didn't find any such finding. There was some little material in the record that gave me a different thought about it.

MR. KOLBO: The transfer policy considers race, Your Honor.

JUSTICE STEVENS: I know it considered race, but not in precisely the same way as this --

MR. KOLBO: Not in precisely the same way, and the Court -- there -- there is nothing -- it may be, perhaps included in parts of the appendix materials, but the district court did not address the issue of the transfer policy when it -- in Mr. Hamacher's potential for transferring under the policy.

JUSTICE REHNQUIST: Well, there's nothing, I take it -- if Mr. Hamacher prevails on the transfer -- there is nothing in his prevailing that would hurt any other class member.

MR. KOLBO: Nothing at all, Mr. Chief Justice. No. If Mr. Hamacher prevails, then the rights of many thousands of others will have been vindicated and they will be able to compete under a nondiscriminatory system.

JUSTICE STEVENS: Of course that would be true even if he doesn't have standing. (Laughter.)

MR. KOLBO: That's true. Well, Your Honor they would not be able to compete under a nondiscriminatory system unless this particular system is struck down.

JUSTICE STEVENS: I understand if it's struck down, but that -- that begs the question of whether the named plaintiff has standing to represent a class of people who want to get into the freshman class. He wants to get in as a transferring student. I mean, it -- maybe there's standing, but the mere fact that if he wins everybody will benefit certainly doesn't speak to the question whether he has standing.

MR. KOLBO: No, Your Honor, but we -- we do believe that because the -- the transfer policy and the original admissions policy are fundamentally the same in the respect that they both consider race in the admissions process in a way that is discriminatory and we believe that's --

JUSTICE STEVENS: And therefore if you're right that any consideration of a race is enough to condemn the program, then he would have standing, but if it -- if it requires analysis of the particular components of the policy, then we ought to know whether the transfer policy is the same as the original policy.

MR. KOLBO: That would be true, Your Honor, if the case were decided strictly on the issue of narrow tailoring, but my understanding is that the University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the law would be the same with respect to the transfer policy as with respect to the original admissions policy, Your Honor.

JUSTICE SCALIA: Oh, he has standing to challenge. That's -- that seems clear, but the -- depending on the rationale that the court adopts if it finds -- if it finds the program unacceptable, he may not be entitled to relief.

MR. KOLBO: He would be -- it seems to me, perhaps, Your Honor, entitled for relief for damages. He's -- he's not at this point seeking to be admitted to the University. He's graduated with the passage of time, it's been five-plus years since this suit was filed, Mr. Hamacher has attended and graduated elsewhere. It seems to me he would be entitled to damages.

JUSTICE GINSBURG: And the court agreed with him as far as the program that was in place when he applied. The court, I thought, held that program unconstitutional.

MR. KOLBO: It did, Your Honor.

JUSTICE GINSBURG: And -- but upheld the program that came into being after his application, and he hasn't reapplied under the new -- but he -- but there was a class certified, so I suppose you could substitute another plaintiff, someone who is applying under the current system.

MR. KOLBO: Well -- well, our position, Your Honor, is that because the class was certified with respect to Mr. Hamacher, that that's sufficient; that if the -- if the system is found unconstitutional, he is an adequate class representative. Sure. Certainly.

  Hamacher's standing in this case remains unclear, despite the fact that it has occupied much of the time apportioned to Kolbo for oral argument.

One of the critical things that is demonstrated in this case is how easy it is for one system to be disguised as another. What has happened in this case is that for five years again, the University defended the system with its facially separate admission guidelines, with its reserved seats, and then in -- two years into this case, in fact, was still using some of these particular forms in its admissions policy. It is an indication, I think, of how difficult it is to conclude that what we have here is a system that, for example, comports with what Justice Powell indicated he was -- he approved of in the -- in the Bakke case. What we have here is a system that was -- is not narrowly tailored to achieve any governmental interest, any compelling governmental interest.

I would like, if I may, to return to the issue of *diversity and the diversity issue* as a -- as a compelling state interest. The fundamental problem with the *diversity rationale* is that it depends upon the standardless discretion of educators. It is a discretion that would be exercised in a number of different respects. And we need to be clear about this. The University and its amicus have all made it clear that in their judgment they ought to be entitled to use race as much as necessary in their educational discretion.

  * Kolbo needs to say how "diversity" is defined in the "diversity rationale" that he attacks. Since he complains of its "standardless" character, he needs to expose the amorphousness and confusion in the concept as used by its proponents. If it means many different things to different people, it could not as a compelling interest provide clear limits to the amount of racial discrimination it required.

If that is the rule that we end up accepting, then universities are free in their discretion to choose which races are discriminated against, which are favored. We can have one institution that discriminates against one group of individuals, and another against another. We can have with the -- with shifting fashions and -- and preferences and time, the preferences for the races can shift. An example of that is found in comparing the facts of this case to the Bakke case, where in Bakke, Asian Americans were included in the preference, and under the University of Michigan's systems, they are excluded.

The -- the exercise of discretion will extend to who's identified in a particular race. It will be for educators to decide whether someone of a mixed race is someone that is entitled to a preference. You can have the anomalous situation of the University's guidelines for example where someone who is both half-white and half-black --

CHIEF JUSTICE REHNQUIST: How -- how does the University of Michigan decide those things? Do they -- is it just a self-reporting type of system on the application?

MR. KOLBO: That's correct, Mr. Chief Justice, it's a matter essentially of self-identification. So if someone of mixed race who is white and black identifies himself as white, then as far as the University is concerned, they don't bring the diversity that they're looking for. If that person identifies himself as black, then merely from that identification, they have fallen within the diversity that the University seeks.

JUSTICE STEVENS: One thing I don't quite understand. What difference does it make to your client whether they're three or four races or five or six races as long as she's not one of them?

  Is her interest all that is at stake in this case? Has the country no interest in the fairness and reasonableness of state-sponsored racial discrimination?

MR. KOLBO: Well, it seems to me, Your Honor, it -- the problem --

JUSTICE STEVENS: She's equally being discriminated against as a Caucasian, no matter how many other races are preferred.

  Not true. Other things equal, the more races preferred to her, the more individuals move ahead of her in the admission line.

MR. KOLBO: That's true, Your Honor. I -- I raised the point because it -- it indicates how standardless this interest is. It is not defined with respect to any constitutional principle like, for example, an interest based on remedying discrimination. It is entirely discretionary with the University.

JUSTICE BREYER: So is it entirely discretionary when you read a set of exam books, you know, it's highly subjective, which is a little better than its -- Often I'd make a mistake as a professor, so -- so the fact that there aren't written-down standards is -- is -- I'm -- I'm not sure of the Constitutional relevance of that when what you're trying to do is something lawyers don't normally do, which is to select among people individually considered which one is better for this particular slot. Business people do that, lawyers don't except when they're hiring.


JUSTICE BREYER: But -- but I don't -- if you said to a business person, this doesn't have standards, such a thing, I think they might laugh and say my job and experience is to select who's better for this slot, so -- so I'm not sure of the constitutional relevance of what you say, which seems to me to me to grow out of the nature of the problem.

MR. KOLBO: Well, again, Justice Breyer, the constitutional relevance derives from the fact that we're talking about a constitutional right here, the use of race, which is not the same thing as --

JUSTICE BREYER: Yes, yes, but I mean, as Justice Stevens just said, the constitutional problem consists of the injury to your client and that injury is the same irrespective of the precise nature of the standards on the other side. And -- and what I'm sort of struggling for here is I see your point, if you say you cannot use race at all, period. No matter what. That's a -- that's a clear position, which I think is one of your positions. But once you depart from that, now I'm -- I'm interested in the detail. At that point I'm not quite sure of the relevance of what you're saying.

  Has Breyer understood Kolbo's criticism of diversity as a compelling interest: that it sets no limits on the amount and kind of racial discrimination that might be used to further it?

MR. KOLBO: Well, Your Honor, what I'm suggesting is the Court itself has made clear that for an interest to be compelling, one of the considerations that the Court must look at is whether there are standards -- independent, ascertainable standards apart from the discretion exercised by, say, an employer to determine whether the interest is one that's compelling and one that the Court can oversee. That interest, that standard -- that standard exists, for example, when we have an interest in remedying identified discrimination. The Court has made it clear that what can be done in that case is you can measure the extent to which there has been past discrimination, that's not a matter of discretion for the employer to decide, and once you've measured the extent of that discrimination, you can tailor your remedy to that interest.


Kolbo's argument is that "remedying identified discrimination" works as a compelling interest because it provides built-in limits to the problem and thus to the use of race as a remedy. Does his explanation help Breyer to understand his criticism of diversity as a compelling interest? We can't tell, because Ginsburg changes the subject.

More than half of Kolbo's time has elapsed and he has failed to engage the Justices in a discussion of whether the diversity to which Michigan appeals—or the kind described by Powell in Bakke—is a compelling interest. That Michigan treats applicants unequally based on their race is not disputed. To win, Kolbo must persuade the Court that there is no compelling interest for such discrimination, or that it is not narrowly tailored to serve a compelling interest. Presumably, he would prefer the former as a more substantive victory.

JUSTICE GINSBURG: Mr. Kolbo, because you mentioned the employer and the employer's judgment, I gathered from your brief that this case is not simply about public universities. Employment -- because you bring up 1981 and you bring up Title VI -- under Title VI, this case is as much about Harvard as it is about Michigan, isn't that true?

  Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, provides:
  No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
  42 U.S.C. § 1981(a) (2000) provides:
  Statement of Equal Rights: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens . . . .

MR. KOLBO: The same standard would apply, Justice Ginsburg, that's correct.

JUSTICE GINSBURG: And it -- and in the private sector, employment in the private sector, there's 1981. So there, too. So this case is much larger than private -- public -- public universities. It's all colleges and universities, and it's the entire realm of employment if you're right.

MR. KOLBO: Well, Your Honor, I want to be clear about what it is that we're arguing for here today. *We are not suggesting an absolute rule forbidding any use of race under any circumstances.* What we are arguing is that the interest asserted here by the University, this amorphous, ill-defined, unlimited interest in diversity is not a compelling interest. Nothing we argue today and nothing we seek to do today would undo the Court's precedents that have recognized if some –


* Then why has he brought Sec. 1981 into the case? It flatly forbids racial discrimination in the making of (school admission and other) contracts, with no exceptions concerning compelling governmental interests. There is room for the compelling-interest exception in interpreting the Equal Protection Clause of the Constitution, since its restriction on discrimination is not explicit. But to introduce this exception into an explicit nondiscrimination statute would rewrite it. Indeed, this happened in Bakke to Title VI, another statute that petitioners cite. Against the opinion of four Justices (including two now sitting, Stevens and Rehnquist), the Court decided that Title VI does not mean the flat prohibition on discrimination that it explicitly commands.

JUSTICE STEVENS: But I think you are arguing that anything except remedies for past discrimination is impermissible.

MR. KOLBO: Your Honor, that is not a conclusion that we need to follow from this Court's decision.

JUSTICE STEVENS: No, I -- I think that's your position, is it not? That the only permissible use of race is as a remedy for past discrimination?

MR. KOLBO: I would not go that far, Justice Stevens, there may be other reasons. I think they would have to be extraordinary and rare, perhaps, rising to the level of life or limb. We do know that the Court has recognized past identified discrimination.

JUSTICE GINSBURG: What about Weber, to take a specific case? Employment setting, the employer says I don't want to confess to having been a past discriminator, but I'm willing to engage in this voluntary affirmative action. I take it that that would be impermissible if we adopt your view?

MR. KOLBO: Weber, as I understand it, is a Title VII case, Your Honor and it's not implicated by this decision.

JUSTICE GINSBURG: But there's 1981, then -- then the person who was attacking it on grounds that it's racially discriminatory just says my lawsuit is under 1981, which it could be as well as Title VII and then what is the result?

MR. KOLBO: Well, it seems to me, Your Honor, that -- if the Court could resolve the issue consistent with Title VII, which has remedial --

JUSTICE GINSBURG: If the suit is brought under 1981, the Court can decide what the plaintiff's complaint should be?

MR. KOLBO: No, no, if this Court decides this case under Section 1981, the only interest asserted here at least is an interest in diversity that we are asking to strike down. It may be that there are some other interests, including a remedial one, that would be justified under some other statute. But the issue is not presented.

  Whether Michigan's admissions policy violates 1981 is one of the questions propounded in the petition for certiorari and accepted by the Court. Ginsburg is taking the question seriously, but Kolbo seems unprepared to argue it.

JUSTICE GINSBURG: But there was no -- this is a voluntary affirmative action, no admission of prior discrimination. I gather if someone brought a 1981 suit, to stop that, your theory is that that person would prevail?

MR. KOLBO: The use of race to exceed nonremedial objectives, I think would have problems, Your Honor.

  This response implies the view that Sec. 1981 includes an exception to its ban on racial discrimination when the discrimination has a remedial objective. But there is no such language in the statute. Does he assume that if the Court applied 1981 to this case, it would rewrite it in the same manner that Bakke revised Title VI? But then, what would have been the point of pleading 1981?

JUSTICE SCALIA: If Congress wanted race to be considered by private institutions such as Harvard and what-not, if there's a problem with 1981, or any of the other Federal statutes, they can simply amend it. What the -- the only thing that the Constitution applies to is State action.

MR. KOLBO: Yes, that's correct, Justice Scalia.

JUSTICE SCALIA: And all the rest is simply Congress' decision to impose a similar restriction upon private actors, which decision it can change if it wishes.

  Is Scalia suggesting a compromise decision? Strike down Michigan's policy under 1981, not reaching the Constitution? If Congress doesn't like the result, it can change the law? But if Congress did repeal or amend the statute so as to permit Michigan's policy, we would still be left with the possibility that the Constitution forbids it.

MR. KOLBO: That's my understanding, Your Honor.

JUSTICE BREYER: Or suppose you say you used the word extraordinary as compelling justification, and the other side says, yes, extraordinary, we're 280 million people, we have *large racial diversity within the country*, the world is even more diverse, and we think from the point of view of business, the Armed Forces, law, et cetera, that *this is an extraordinary need to have diversity among elites throughout the country.* That **without it, the country will be much worse off. That's what we're being told. In fact, the country might not function well at all.** And we have to train those people. We have to. All right, now, how can you say, or can you say, that isn't extraordinary? That isn't a question of life or limb for the country? It isn't really that necessary, when so many people are telling us the contrary?


* Should the Court recognize, as a compelling interest, "an extraordinary need" to match the "large racial diversity" within our country with a corresponding racial "diversity among elites"? In practice, this would mean a much greater proportion of blacks and Hispanics in leadership positions than would occur without substantial racial preference in education, professional training, employment and promotion.

** If this alteration were necessary to the wellbeing of the country, it would qualify as a compelling interest. But is it necessary? If it depends on a regime of state-sponsored racial discrimination, is it even desirable? The goal Breyer here describes has long been widespread among serious proponents of affirmative action. For example, it was proposed back in 1978 by the Law School Admissions Council in their Bakke amicus brief. Clearly, Breyer is willing to deal at the level of compelling interest, and here proposes one that if recognized would more clearly justify racial preference for black, Hispanic and Native Americans than Powell's or Michigan's notions of diversity. Ginsburg, Stevens and Souter might agree, but could they lasso a fifth vote?

MR. KOLBO: Your Honor, because there are important constitutional rights at stake. And those rights are the right to equal protection. And a mere social benefit that is having more minorities in particular occupations or the schools simply doesn't rise to the level of compelling interest. It simply is not -- it doesn't remedy a constitutional value, like –

JUSTICE KENNEDY: So if the University president or the dean told you just what Justice Breyer said, you would tell them there's -- and that we have underrepresentation of minorities, you would tell them there's nothing you can do about it?

MR. KOLBO: I would say, Your Honor, that racial preferences are not the answer. If there are problems again in not getting a sufficient number of -- if minorities are not competing at levels of other racial groups then we should take steps to solve that problem. But racial preferences, because they injure the rights of innocent people, because it's a prohibition contained in our Constitution, simply aren't permissible to remedy that problem. If I may reserve the remainder of my time, Mr. Chief Justice.

  Kolbo fails to argue persuasively against Breyer's thesis: that substantially increasing the proportion of minorities in American elites is a compelling governmental interest. Did he not expect this view to be considered by the Court? Is he saving a more forceful response for his final rebuttal?

CHIEF JUSTICE REHNQUIST: Very well, Mr. Kolbo. General Olson, we'll hear from you.


GENERAL OLSON: Mr. Chief Justice, and may it please the Court: The University of Michigan admissions program has created a separate path and a separate door for preferred minorities. For those groups, if they meet basic qualifications, their path is always clear, and their door is always open. Nonpreferred racial groups face rigorous competition to get through the other door.

  Nicely put!

The University admits that race is such an overarching factor in its admissions process that virtually every qualified underrepresented minority applicant will be admitted. The 20 point bonus, which is one full grade point, nearly twice the benefit of a perfect SAT score, and six times better than an outstanding essay, the -- that bonus is actually unnecessary with the way the plan actually works, because every qualified candidate who gets the bonus gets into the University. It might just as well be an admissions ticket.

The University acknowledges that its pre-1999 admissions program used separate grids, separate qualifications, separate standards and protected seats. They acknowledge that this system was -- which was held unconstitutional and was not challenged, yet they stipulated that the only changes that they made from that system affected only the mechanics, not the substance of how race and ethnicity were considered in the admissions process.

  Note that Olson, like the United States brief, speaks not to the questions of compelling interest and the end served by the admissions policy, but only to the means employed

.JUSTICE STEVENS: First, the changes were sufficient to convince the district judge that it was on the other side of the constitutional line?

GENERAL OLSON: Notwithstanding the fact that the -- the University -- we -- we respectfully disagree with that conclusion, because the -- the University itself admitted that it only changed the mechanics. It intended to produce the same --

JUSTICE SOUTER: Yes, but isn't -- isn't -- I mean, *mechanics is another word for tailoring. And they're saying we have tailored it differently.* Our objectives are the same. We may be reaching those objectives in roughly the -- the same proportions, but the argument is an argument about tailoring and we've changed the tailoring.

  * An astute point, but has Michigan improved the tailoring?

GENERAL OLSON: We submit Justice Souter, that the changes which they referred to as mechanics were cosmetics, that ultimately, the system was intended to, and they acknowledge, to produce the same outcome as the prior system.

JUSTICE KENNEDY: Yes. The stipulation is that it did not change the substance of how race and ethnicity were considered.

GENERAL OLSON: Correct, Justice Kennedy. And what the Court only needs to look at the operation of the system. That 20 point bonus means that if you pass the minimum qualification standards at the University of Michigan, you were admitted. Everyone else just like in the Davis program, had to compete -- people that were not in the preferred races, who were not on the preferred class had to compete with one another.

JUSTICE GINSBURG: It was the same 20 points given -- socioeconomic status also had 20 points?

GENERAL OLSON: Yes, Justice Ginsburg.

JUSTICE SOUTER: And athletics, too, I think?

GENERAL OLSON: Yes, and you couldn't get both. But if you had -- whether -- whatever your background, whether you were an athlete or not, you got the 20 points solely because of your race. There were other systems, that the Constitution doesn't implicate.

JUSTICE GINSBRG: I thought you got only one 20?

GENERAL OLSON: That's correct.

JUSTICE GINSBURG: So if you were an athlete you wouldn't get race?

GENERAL OLSON: That's correct. But if you -- irrespective of those other factors, if you didn't get the -- the 20 point bonus for being an athlete or -- for socioeconomic conditions, the only thing that was required was to be a member of the preferred race. Like the other program that we're hearing today (the same State, the same Board of Regents), *this plan violates every standard that this Court has set for the examination of racial preferences.* It is a thinly disguised quota because there's only one path, a segment -- Justice O'Connor put it this way in Croson -- a segment of the class reserved exclusively for certain minority groups. It isn't tied to a particular number. It's a segment of the class reserved on the basis of race. It is -- it is based upon the stigmatizing notion that if you are a certain race, you think a certain way or if you're a certain race, you have certain experience that are common.

  *Olson is not charging a violation of the most important "standard that this Court has set for the examination of racial preferences": i.e., that it serve a compelling governmental interest. He does here mention two standards that he argues must be met, even when a compelling interest is served.

JUSTICE SOUTER: What do you say to the argument that number one, it's not stigmatizing, because the Bok study certainly didn't show that it was, and number two, the objective is not to show that there is a correlation between race and one point of view. The objective is to show students what the correlation or no correlation is between races and points of view. And it seems to me that the Michigan plan is equally consistent with the latter interpretation as with the former.

GENERAL OLSON: What we're saying is that if you assume that because you are white or you are red or you are brown or you are black, you must have certain experiences and you must have certain viewpoints.

JUSTICE STEVENS: The argument is that you need to have enough of them to demonstrate that the point of view does not always fit just one person.

GENERAL OLSON: Well, but Justice Stevens --

JUSTICE STEVENS: And that was a finding I think?

GENERAL OLSON: -- that's a self-contradictory rationale that they've come up with. They say first of all you have these characteristics because you're black but we must admit enough of you into the class to prove to the other students that -- that black isn't the reason you're

JUSTICE BREYER: No that is not -- the argument is basically that, look, people who have grown up in America and are black, regardless of race, no, not regardless of race, [laughter] regardless of socioeconomic background have probably, though not certainly, shared the experience of being subject to certain stereotypical reactions from people throughout their lives. Now, that may have led them to react one way, or another way or not react at all. And indeed many of the students in our class will have stereotypical reactions. And it's good for them as well as for everyone else to rid themselves of those reactions. And we want people in this school of all kinds who are black, because that will be helpful education.

Now, that's their argument, I think, in that respect, not the argument that all black people are poor, not the argument that all black people have been discriminated against, not the argument that all black people share a point of view. As I read it, that's their argument. And so your reply to that argument is what?

GENERAL OLSON: Well, their argument (a) takes several forms, at one point it's that, at one point, it's the need to get more people elite -- of different backgrounds, it's a -- but what this Court has said that racial preferences, racial stereotyping, which it is, is stigmatizing, it's divisive, it's damaging to the fabric of society, it's damaging to the goal ultimately to eliminate the problems that racial discrimination and racial differences have created.

  Olson overstates the extent to which Michigan's rationale for racial diversity depends on racial stereotyping. By automatically awarding 20 points to applicants from certain racial groups, it assumes that every such person, simply because of his race, will contribute to the collective educational experience. This assumption is unwarranted, and may be called a stereotype. Related to this is another unwarranted assumption, that each black (Hispanic, Native American) can communicate to other students a questionable entity called the black (Hispanic, Native American) experience. However, Justice Breyer is correct that the University does not assume that members of the favored races think alike: indeed, it is pleased when they are present in sufficient numbers to demonstrate that they do not.

JUSTICE GINSBURG: General -- we're part of a world, and this problem is a global problem. *Other countries operating under the same equality norm* have confronted it. Our neighbor to the north, Canada, has, the European Union, South Africa, and they have all approved this kind of, they call it positive discrimination. Do we -- they have rejected what you recited as the ills that follow from this. Should we shut that from our view at all or should we consider what judges in other places have said on this subject?

  * Which "equality norm" does Ginsburg have in mind? Equality before the law, under which government may not treat people unequally based on their race? Or equality of racial group success, in which government treats people unequally based on their race in order to produce racial equality of achievement? These two equality norms flatly contradict each other. What do the judges in Canada, the European Union, and South Africa do with this contradiction?

GENERAL OLSON: I submit, Justice Ginsburg, that none of those countries has our history, none of those countries has the Fourteenth Amendment, none of those histories has the history of the statements by this Court which has examined the question over and over again that *the ultimate damage that is done by racial preferences is such* that if there ever is a situation in which such factors must be used that they must be -- race-neutral means must be used to accomplish those objective, narrow tailoring must be applied, and this -- this -- these programs fail all of those tests.

  * Unfortunately, in constitutional deliberations, this "damage" is more often assumed than spelled out. Assumed damage becomes damage taken for granted, which easily becomes damage not strongly felt or understood, which easily becomes damage of little weight in the argument. Thus, modest educational benefits from increasing the number of black and Hispanic students on some campuses (ordinarily at the expense of other campuses), emotionally outweigh the harm of governmental racial discrimination. Counsel arguing against Michigan's policy would do the clients they support, and the rest of us, important service by spelling out the "damage that is done by racial preferences."

JUSTICE SCALIA: General Olson, do you know whether any of those countries that Justice Ginsburg referred to that have gone down the road of racial preferences, racial entitlements, have ever gotten rid of racial preferences or racial entitlements?

  Good question! Especially apt concerning countries (e.g., India, Sri Lanka, Malaysia) that started "down the road of racial preferences" in the 1950s, and thus have had more time than Canada et al. to discover the difficulty in getting rid of them.


JUSTICE SCALIA: Has it been the road ultimately to a color-blind society or has it been the road to a society that has percentage entitlements for the various races?

GENERAL OLSON: Sadly, I believe that that is correct, Justice Scalia, and let me conclude by saying that the Michigan Law School and the University of Michigan ultimately must make a choice. It may maintain its elitist, as it refers to it, selection process without regard to race, or *it may achieve the racial diversity it seeks* with race-neutral compromises in its admission standards. But the one thing that it may not do is compromise its admission standards or change its admission requirements for one race and not another. That is forbidden by the Equal Protection Clause of the Constitution.

  * The "racial diversity" that Michigan seeks is a substantially larger proportion of black and Hispanic students than would be admitted under its present academic standards without racial preference. If this is what Olson means by "the racial diversity it seeks," his statement implies the view that a state university may lawfully pursue goals that are not race-neutral. This view is certainly consistent with the United States amicus brief, which endorses the Texas and Florida percentage plans. But in the oral orgument up to now he had avoided this implication.

JUSTICE STEVENS: Is it also forbidden for the United States military academy?

GENERAL OLSON: It may well be, Justice Stevens. We're not defending the specifics of those programs, but we have not examined them individually. We -- we believe that the ultimate solution to the problem that race has created -- that difference in race has created in this country has got to be according to what this Court has said, the most neutral race-neutral means possible.

  Nowhere in the Justices' responses to Olson is there any indication of their views concerning whether any compelling interest other than remedying indentifiable discrimination should be recognized as a basis for racial discrimination in university admissions.

CHIEF JUSTICE REHNQUIST: Thank you General Olson. Mr. Payton, we'll hear from you.


MR. PAYTON: Mr. Chief Justice and, may it please the Court: I think, I think I want to spend just a few minutes briefly setting the record straight on why it is the educational judgment of the University of Michigan that the educational benefits that come from a racially and ethnically diverse student body are crucial for all of our students and why those benefits do not depend in any way on the assumption that, for example, all African Americans think alike. LS&A, our premiere undergraduate institution, is an undergraduate college, most of its entering students come in as 18-year-olds, about two-thirds come from Michigan, and about half from Detroit or the greater Detroit area. Michigan, I think as everyone knows, is a very segregated State.

CHIEF JUSTICE REHNQUIST: Half of the ones who come from Michigan come from Detroit?

MR. PAYTON: Yes. Half of our students come from -- yes.

Michigan is a very segregated State. Detroit is *overwhelmingly black.* Its suburbs and the rest of the state are *overwhelmingly white.* While Michigan is extreme in this regard, it's not that extreme from the rest of the country. The University's entering students come from these settings and have rarely had experiences across racial or ethnic lines. That's true for our white students. It's true for our minority students. They've not lived together. They've not played together. They've certainly not gone to school together. The result is often that these students come to college not knowing about individuals of *different races and ethnicities.* And often not even being aware of the full extent of their lack of knowledge. This gap allows stereotypes to come into existence. Ann Arbor is a residential campus, just about every single entering student lives on campus in a dorm. On campus, these 18-year olds interact with students very different from themselves in all sorts of ways, not just race, not just ethnicity, but in all sorts of ways. Students, I think as we know, learn a tremendous amount from each other. Their education is much more than the classroom. It's in the dorm, it's in the dining halls, it's in the coffee houses. It's in the daytime, it's in the nighttime. It's all the time.

  * In this and the next paragraph, Payton focuses only on "black" and "white," just two of the many "different races and ethnicities" that might provide campus racial and ethnic diversity. Is his primary interest the educational benefits of a racially and ethnically diverse campus, no matter which races and ethnicities, or the enrollment of "meaningful numbers of African American students"? Suppose the former but not the latter were obtainable without racial/ethnic discrimination. Would Michigan be satisfied, or still insist on racial preference for blacks?

Here's how critical mass works in these circumstances. If there are too few African American students, to take that same example, there's a risk that those students will feel that they have to represent their group, their race. This comes from isolation and it's well understood by educators. It results in these token students not feeling completely comfortable expressing their individuality. On the other hand, if there are meaningful numbers of African American students, this sense of isolation dissipates.

CHIEF JUSTICE REHNQUIST: Mr. Payton, what is a meaningful number?

  Payton has broached what he considers a compelling interest: the educational benefits, especially in largely segregated Michigan, of interracial mixing between blacks and whites. But Rehnquist disregards this argument, focusing instead on a phrase, "meaningful number," that might indicate a quota.

MR. PAYTON: It's what we've been referring to as critical mass.

CHIEF JUSTICE REHNQUIST: Okay. What is critical mass?

MR. PAYTON: Critical mass is when you have enough of those students so they feel comfortable acting as individuals.

  Is this a standard that Michigan sets for the admission of every ethnic group? That there must be enough Puerto Rican-, Salvadoran-, Cuban-, Mexican-Americans; Haitian-, Jamaican-, West African-Americans; Chinese-, Japanese-, Filipino-, Vietnamese-, Korean-Americans; Apache-, Cherokee-, Chippewa-. Sioux-Americans; Russian-, Serb-, Arab-, Pakistani-Americans "so they feel comfortable acting as individuals"? Or does this standard apply only to one racial group (blacks), and perhaps to one bureaucratically-defined group (Hispanics) that is neither racial nor ethnic?

CHIEF JUSTICE REHNQUIST: How do you know that?

MR. PAYTON: I think you know it, because as educators, the educators see it in the students that come before them, they see it on the campus.

CHIEF JUSTICE REHNQUIST: Do they -- professors at the University of Michigan spend a lot of time with the students?

MR. PAYTON: Yes, they do. This is an incredibly vibrant and complex campus that has diversity in every conceivable way. And I think --

CHIEF JUSTICE REHNQUIST: Do they spend a lot of time with them other than lecturing to them?

MR. PAYTON: They do. In the record, we actually have an expert report, that's not contradicted in any way, by Professor Raudenbush and by Professor Gurin just on the issue of how do you know when you have enough students in different contexts and circumstances so that there will be these meaningful numbers.


MR. PAYTON: They said that given the numbers that have been coming through in the last several years, we are just getting to that critical mass. And the way they analyzed it was to look at the circumstances in which students interact. Entering seminar, a dorm context, a student activities context, student newspaper context, to see what would happen if you distribute the students across these small encounter opportunities.

JUSTICE SCALIA: Does Michigan have, as some schools I know have, schools that have affirmative action program, does it have a minority dormitory?

MR. PAYTON: No. The answer is no. We have dormitories like I said. Just about every single entering student stays in a dormitory. We do not have any dormitories where your entrance into it is governed by your race. But we have tremendous representation in our dormitories because everybody has to stay there, O.K.? So the answer is --

JUSTICE SCALIA: I mean, apart from being excluded, if -- it is in fact the residential pattern quite mixed and there are no dormitories that are, you know, just as sometimes there is -- there is the jocks dormitory, there is really no African American dormitory?

MR. PAYTON: The answer is there is no African American dormitory, but it -- the full answer is more complex. After students are there for their first year, they can choose to move off campus. They can choose to stay on campus. Many stay on campus, many move off campus. Ann Arbor is a college town and off campus is actually in the larger campus community and what they do off campus is obviously up to the students themselves, but I think that's -- you know, that's the real world. If you have the *meaningful numbers of minority students,* what then happens is that students will see a range of ideas, a range of viewpoints from and among those students and they will then see things that they may not have expected, similarities and differences, and those in turn will have the result of undermining stereotypes, you know, and this happens for the minority students, and the white students.

  * When Payton speaks of "meaningful numbers of minority students," he does not include students who might logically be considered racial or ethnic minorities, such as Asian, or ethnically distinctive white students.

This happens for all the students. You know, the benefits from this affect every single student that comes through. And they're dependent on there being meaningful numbers, or critical mass, of minority students, or the benefits don't come about. That's the interest that the University is asserting. That's why they think that this is so crucial. Education, understanding, produces citizens and leaders in our complex society.

  Scalia's question as to the extent of racial separation in living quarters is only partly answered: no dormitories have rules that exclude based on race. But we don't find out how much racial mixing actually occurs in first-year dormitory life, or in off-campus living arrangements.

JUSTICE KENNEDY: But where we are is, there's an assumption, you may not agree with it, but it's one beginning assumption in this area, that there may not be a quota, every -- all of the eloquent things you said could be easily met by a quota. That -- let's just assume for argument -- we cannot do. I have to say that in -- in looking at your program, it looks to me like this is just a -- a disguised quota. You have a -- *a minority student who works very, very hard, very proud of his athletics, he gets the same number of points as a minority person who doesn't have any athletics -- that to me looks like an overt quota.*


* I don't understand why one would call this fact about Michigan's point system a "quota." It is also the case that a white "student who works very, very hard, very proud of his athletics . . . gets the same number of points as a" white applicant "who doesn't have any athletics," but is socio-economically disadvantaged. Would Kennedy say that this "looks like" a "quota"? Kennedy's example and mine both include unequal treatment, whether based on race, athletic ability, or socio-economic status. But unequal treatment does not a quota make. Is Kennedy's complaint that the point system prevents the university from weighing individual differences in the very qualifications that the university has set?

Kennedy seems to be another Justice more inclined to discuss whether Michigan's policy is a racial quota than whether it serves a compelling interest.

MR. PAYTON: Here's how our system works and I believe it's not a quota at all and I can believe -- I can simply explain this. The way it works, an application comes in, it is reviewed on the basis -- every single application is read in its entirety by a counselor, every single application. It is in fact judged on the basis of the selection index, which has the 20 points for race and 20 points for athletics, but it also has all sorts of other things that it values, in-state, underrepresented state, underrepresented county within Michigan, socioeconomic status, what your school is like, what the curriculum that you took at your school is like.

JUSTICE SCALIA: But none of that matters.

MR. PAYTON: Your grades --

JUSTICE SCALIA: None of that matters. If you're minimally qualified and you're one of the minority races that gets the 20 points, you're in, correct? The rest is really irrelevant.

  This cuts to the chase. The charge is that Michigan's College of Literature, Science and the Arts has decided to admit all "minimally qualified" black, Hispanic and Native American applicants, and has established a process that would assure this result.

MR. PAYTON: The way it works is that every application comes through and it's read in its entirety, it is evaluated taking all of these factors into account, and then based upon the number that comes off the selection index which can go up to 150, the students are all competing against each other. There is a score that is evaluated throughout the year, because there's an overenrollment problem that always has to be managed and if the score is higher, you are in, and that doesn't matter about anything other than what the score is. In addition, the counselor can on the basis of three factors see that an application is reviewed by the admissions review committee.

  This answer does not contest Scalia's charge, that "If you're minimally qualified and you're one of the minority races that gets the 20 points, you're in."

CHIEF JUSTICE REHNQUIST: Mr. Payton, in your brief, you say the volume of applications and the presentation of applicant information make it impractical for LSA to use admissions system as the much smaller University of Michigan Law School. Now, you're saying that every single application for admission to LSA is read individually?

MR. PAYTON: Yes. Sometimes twice. Because every application is read when it comes in, and those that a counselor flags that -- because they find that there's three factors you have to have to flag an application -- academically able to do the work, above a certain selection index score and also contributes at least one of various factors that we want to see in our student body, including underrepresented minority status, but also very high class rank and a whole range of other things.

CHIEF JUSTICE REHNQUIST: When you say underrepresented minorities, what comparison are you making to say that it's underrepresented?

  Good question. "Underrepresented" as compared to what standard?

MR. PAYTON: I think we're taking that term as the Federal Government has used it, and the reason Asians aren't included, just to pick up one of the --

CHIEF JUSTICE REHNQUIST: How does the Federal Government use it?

MR. PAYTON: I think there are three minority groups, you know. Let me just go back and answer what we want.

CHIEF JUSTICE REHNQUIST: Well, I think perhaps I could get a more direct answer. How do you decide whether, say, African Americans or Hispanics are quote underrepresented, close quote?

MR. PAYTON: I think this is actually a very important point. They are underrepresented in our applicant pool.


MR. PAYTON: Compared to -- we have very small pools of African Americans, for example, that are qualified to the extent that we require students to be qualified to do the work at the University of Michigan and *what that means is that if we didn't take race into account, we would not be able to get the numbers of those students, the critical mass, necessary for the educational benefits that we want. That's underrepresented.*

  * Rehnquist's question—what does Payton mean by calling a group "underrepresented"—is finally answered, with a definition I hadn't heard before, which may have been coined on the spot.

CHIEF JUSTICE REHNQUIST: When you say underrepresented, it sounds like something almost mathematical, that you're saying, we only have a certain percentage of -- and we should have this percentage, well, what is this percentage?

MR. PAYTON: It's actually not a percentage at all and *it really is driven by the educational benefits that we want from our diverse student body.* If we had in our applicant pool sufficient numbers of minority students, African Americans, for example –

  *Whatever Michigan's real motives for preferring blacks and Hispanics, their emphasis on "critical mass" and "meaningful numbers" seems reasonably and efficiently related to their asserted goal: the educational benefits of increased interracial mixing. In that case, the crucial question is whether the goal is a compelling interest.

CHIEF JUSTICE REHNQUIST: What is a sufficient number?

MR. PAYTON: So that when we made our selection --

CHIEF JUSTICE REHNQUIST: I asked you, what is a sufficient number?


CHIEF JUSTICE REHNQUIST: An answer -- would you answer it?

MR. PAYTON: A sufficient number so that when we made our selections, we were achieving the critical mass of students that we need for the benefits I described. That is not a fixed precise number at all, as you've heard. It is -- that's simply not the nature of the critical mass. But when you're trying to figure out whether or not in your applicant pool, you have sufficient numbers, so that the normal operation of our process would yield a critical mass, that's underrepresented. We are underrepresented with respect to Hispanics, with respect to African Americans and with respect to Native Americans.

JUSTICE SCALIA: Because your standards are so high, you say that there are very few of those who can meet your standards. So why don't you lower your standards, actually, I mean if this is indeed a significant compelling State interest, why don't you lower your standards?

MR. PAYTON: We do have sufficient numbers in our applicant pool to achieve the critical mass that we're achieving. We're not taking -- you're right we're not --

JUSTICE SCALIA: By taking race into account, you can -- you can do it. But --

MR. PAYTON: But we're not taking students that aren't qualified, you are correct about that, Justice Scalia.

JUSTICE SCALIA: But just lower your qualification standards, *if -- if this value of -- of having everybody in a mix with people of other races is so significant to you, just lower your qualifications.*

  * At the beginning of the oral argument of Michigan's counsel in Grutter, Scalia made a similar proposition: you can achieve your aim by lowering your standards. This time, however, he rewords the aim. Before, it was to eliminate the "racial imbalance"; now, it is to have "everybody in a mix with people of other races."

MR. PAYTON: It is that significant to us. But I think that --

JUSTICE SCALIA: You don't have to be the great college you are, you can be a lesser college if that value is important enough to you.

MR. PAYTON: I think that decision which would say that we have to choose, would be a *Hobbesian choice* here. Our premiere institutions of higher education, I'd say, are part of our crown jewels. We have great educational institutions in this country. The University of Michigan is one of them. I think we are the envy of the world. If we had to say, gee, our educators tell us that it is crucial that for the full education they want for those students, all of those students we needed for a student body, that the decision is, oh, gee, we want to you decide to either have a poor education for the essentially white students and/or you can say, change what you are as an inssti institution. I think we get to decide what our mission is. I think the Constitution gives us some leeway in deciding what our mission is and how we define ourselves.

  *The phrase, "Hobbesian choice," is not in my unabridged Webster. A famous choice associated with (Thomas) Hobbes is between autocracy and anrchy, but that can't be what Payton has in mind. He may be thinking of Hobson's choice, in which the options available range from bad to horrible. But does this fit his idea?

JUSTICE SCALIA: And anything that contradicts that mission is automatically a compelling State interest.

MR. PAYTON: No. I think what we're saying is we can achieve both of those things, because, in fact, achieving the educational benefits that come from a diverse student body can be achieved, given our mission, if we can go about selecting students in a way to achieve the critical mass of minority students that we need. We want both of those things. We think that –

JUSTICE BREYER: Go ahead. Are you finished?


JUSTICE BREYER: I wanted to go back to Justice Kennedy's question. The point system here, does it meet the opinion of Justice Powell in Bakke when that was called for individualized consideration? Now, the concern that it does not, is that you under this system would seem to have the possibility that two students -- one is a minority, African American, one is not, majority, and they seem academically approximately the same and now we give the black student 20 points and the white student, let's say, is from the poorest family around and is also a great athlete, and he just can't overcome that 20 points -- the best he can do is tie. And so that's the argument that this is not individualized consideration. And I want to be sure I know what your response is to that argument.

  In Powell's opinion, race could be an admissions factor to serve a school's compelling interest in viewpoint diversity, provided there was "individualized consideration." Breyer's question again concerns whether the means is narrowly tailored, not whether the end is a compelling interest.

MR. PAYTON: I have two responses. The first is to say that it is individualized if that white student actually was socioeconomically disadvantaged, that could be taken into account.

JUSTICE BREYER: But remember he has that and gets 20 points for it.


JUSTICE BREYER: And he also is a great athlete and I've constructed this example to make it difficult for you, [laughter] and -- but I mean you see he can only get 20 points, no matter how poor he is. And no matter how great an athlete he is as well, and the -- let's say the black student who has neither ties him.

  In this colloquy, Breyer sounds like an able and gentle law professor, questioning a student in class. Since Payton is not a law student, is this a bit patronizing? Would Breyer as Justice be this gentle and careful if Payton were white?


JUSTICE BREYER: But on individualized consideration, the black student might lose, if there were the individualized consideration.

  Apparently, by "individualized consideration," Breyer means weighing individuals as a whole against each other. But a point system, even when elaborate, gives specific weights to characteristics and accomplishments, and thus may, as in the hypothetical, conflict with weighing individuals as a whole.

MR. PAYTON: Well, he might –

JUSTICE BREYER: And that's -- and that's what you're giving him. Now what is the answer? I'm -- I'm trying to find your answer.

MR. PAYTON: The answer is we value both of those aspects of diversity. We want both of those represented in our student body, all right, if they tie, they will be judged exactly the same as far as how the selection index works.

JUSTICE KENNEDY: What you're saying is that race is individualized consideration. MR. PAYTON: I'm saying that each student –

JUSTICE KENNEDY: Otherwise you're saying that only in the hypothetical given that only the white student receives individualized consideration.

MR. PAYTON: No, no. They both –

JUSTICE KENNEDY: Some are more equal than others.

  Stumped for awhile, Payton now, despite Kennedy's badgering, sees his way out.

MR. PAYTON: They both receive individualized consideration. They're both reviewed in their totality. They both may be sent to the admissions review committee where they get a second reading. In Bakke

JUSTICE BREYER: If in those circumstances, because we have the white student who is both a good athlete and also very poor, and the other student, the minority is not, could that be sent to the -- the individual -- could that be sent to the review committee and the review committee would say, well, we have a special circumstance here, and even though the points tie, nonetheless when we look at it carefully, we see that the white student has these extra pluses, despite the points, we let in the white student?

MR. PAYTON: The admissions review committee -- about 70 percent of the applications that it reviews in any given year are white student applications that are sent to it. Okay. It can reach its judgment irrespective of whatever happened in the selection index score.

JUSTICE BREYER: So they can ignore the points.

MR. PAYTON: They can -- actually once it goes to them they simply look at the application and make a judgment.

JUSTICE BREYER: So I want a clear answer to this. That review committee can look at the applications individually and ignore the points.

MR. PAYTON: It does.

JUSTICE BREYER: Yes. The answer is yes?

MR. PAYTON: The answer is yes.


MR. PAYTON: In Bakke, where Justice Powell says that he could look at one example of an admissions policy and he discusses briefly the Harvard plan and then he has a long quote from it, there is the footnote 50 that Ms. Mahoney mentioned. In both footnote 50 and footnote 51 there is a citation to this study by Carnegie and he introduces that by saying in the footnote there are in this study examples of the actions by other leading institutions, trying to get diverse student bodies. That study indicates that there are plenty of other models where in fact some effort to come up with a system to handle these different factors was successful.

JUSTICE SCALIA: Mr. Payton, it's easy to say they can ignore the points. It's easy to say. Do you know of any case where a *minority applicant, one of the minorities favored in your program,* who was minimally qualified, got the 20-point favor and was rejected?

  * A reminder that not all racial and ethnic minorities are favored at Michigan. Blacks, Hispanics and Native Americans receive racial or ethnic preference, but not Asians or distinctive white ethnic minorities, such as East European, Arab, or South Asian Americans.

MR. PAYTON: I don't know, Justice Scalia.

JUSTICE SCALIA: It's important, I mean, to say theoretically fine, yes, theoretically, you can reject it. But as I understand what -- what the other side is saying, it is automatic, if you are minimally qualified, and you get those 20 points, you are in, that's what they claim.

MR. PAYTON: Actually –

JUSTICE SCALIA: Now, do you assert that that is false?

MR. PAYTON: That is not correctly describing what happens. The way the policy works and the way it is implemented is how I described the policy. *In fact, the results of the policy are that most of the qualified minority applications do end up getting admitted.* That's not the design. The design is here's how you do it, here's how the decisions are made, either on the selection index score, some are sent to the admissions review committee. Most of those that are sent to the admissions review committee are in fact not minority applications, but the design is not gee, admit all qualified minorities, the design is to take these different factors into account in order to achieve the student body that we think is crucial here.

  * Not just "most." As Payton is about to admit, "virtually all."

JUSTICE SCALIA: So there are some qualified minorities who get the 20 points and who are rejected.

MR. PAYTON: I believe that is the case, all the record says in this is that virtually all of the minority students, as a result of the policy ended up being admitted. I think there are certainly some, I can't give you one, I can't give you one, but *there are certainly some where if you work it out, you can see that won't happen.*

  * Perhaps. But if the University judges the black, Hispanic or Native American "qualified" to do the work, he can be admitted by the review committee no matter what his point score.

JUSTICE SOUTER: But the design is to admit a higher percentage of the qualified minority applicants that you get, given the numbers that there are today, because if you do that you won't get your mix?

MR. PAYTON: The design is to make sure we get to the critical mass of the meaningful numbers and given the small pool size we have, the way it operates is as you just described, but that's the way it operates, *the design is to make sure we get the critical mass of students that are, in fact, necessary for the educational benefits that we are asserting here.*

  * If Michigan were willing to count all the racial or ethnic minority students that could contribute to racial and ethnic diversity and the "educational benefits" therefrom, it could enroll a "critical mass" of such students without using racial preference. It is the University's insistence that only black, Hispanic and Native American students count in stocking the "critical mass" that compels racial preference in admissions.

JUSTICE SOUTER: Has anyone at Michigan ever defined critical mass as being anything more specific than something beyond token numbers?

MR. PAYTON: I think that the reason I referenced the two expert reports by Professor Raudenbush and Professor Gurin is to try to see this -- those two reports try to put this in sort of an everyday example, you know, students don't interact with the student body as a whole, they interact in small settings and it's to see if you see what our minority student population is how that would distribute into these small settings. And on the basis of how that distribution works, Professor Gurin looked at it to see whether or not that looked like that would be generating the interactions that she would expect for these educational benefits.

JUSTICE SOUTER: But in the criteria used by the admissions committee, did anyone put a percentage figure or a specific number –


JUSTICE SOUTER: -- beyond the concept you've got to get more than just token representation?

MR. PAYTON: No. The answer is no. And –

JUSTICE GINSBURG: Mr. Payton, do you know the origin of critical mass that is being spoken of here as though it were something that were invented? I know it goes back at least with respect to the enrollment of women in law school, the schools talked about we want to get a critical mass, so women will feel welcome because when they were one at a time curiosities they did have to do as you said defend -- they were representatives of their sex and if they failed, all women failed. Once they had a critical mass, it was no longer necessary, the woman was free to be who she was. But that term I certainly was familiar with that term used in that setting. It's -- it comes from sociology, doesn't it?

MR. PAYTON: It does, and I think you described it exactly as it has come about with respect to diversity and critical mass. In the Harvard plan, in Justice Powell's discussion of the Harvard plan, he clearly acknowledges and -- because the plan acknowledges that you must have meaningful numbers and it means more than token numbers and there's clearly an acknowledgment that if you have too few numbers you get the dynamics of isolation that you just discussed.

JUSTICE BREYER: In the law school context, there was testimony, I think from one of the admissions officers that said 5 percent is too few, 10 percent might suffice. And he's talking in respect to what is a critical mass. Now, do people coalesce around numbers like that or is that just out of -- what do I do with that piece of testimony?

MR. PAYTON: I think that in all of this, you know, there's a false precision here that everybody wants, which is tell me exactly what this is, and I don't think it exactly works like that. You know, we have a lot of experience as, you know, an educational institution about what has happened on our campus and what has worked. *The class that we've had, the entering classes that we've had over the last 4 years or so, have ranged from 12 percent to 17 percent, okay?* Twelve percent to 17 percent. I'm not saying it's a percent and I'm not saying it's that fixed range, but 12 percent to 17 percent is sort of how it is ranged and that has generated the representation in the small groups that is what is working to achieve some of these educational benefits that we're talking about. But it's not quite that precise as far as how all of this works.

  * I.e., the proportion of black, Hispanic and Native Americans combined has "ranged from 12 percent to 17 percent." If one adds Asians, the size of the "critical mass" is substantially larger; if distinctive white ethnicities, larger still.

JUSTICE SCALIA: Mr. Payton, let me ask Justice O'Connor's question, when does all of this come to an end?

MR. PAYTON: I think that we all certainly expect it to come to an end. I think we're all quite surprised if we looked back at Bakke, in 1978, I think all of us would be quite surprised from that vantage point to realize that today in Michigan students live in such segregated circumstances growing up, it's really quite unbelievable. We could not have foreseen that. I think people thought that we were coming together in a way and that hasn't occurred. That's created some educational challenges and opportunities. The test score gap, I think is narrowing -- we put that in our brief. I think we're all quite optimistic about how this is going to progress. I think the pool is increasing. But I can't give you how long is it going to last. I think we're all quite confident that it's only going to last for X number of finite years, I just can't answer with any precision that question either.

  Payton fails to specify any evidence that the programs he defends will end in the foreseeable future. Even worse, he fails to specify any circumstances that would justify their termination.

JUSTICE KENNEDY: Suppose the Court were to say that the 20-point system and the law school system looked just too much like a quota and that quotas are impermissible? As of that point, is it our burden to tell you what other systems to use or is it your burden to come up with some other system, say, more individualized assessment in order to attain some of the goals you wish to attain?

MR. PAYTON: I guess I'm not sure what the more individualized assessment would be here. I'm not saying that obviously there are things that could be done differently. We've done things differently. The two schools do things quite differently. But I think we're both trying to achieve the critical mass, that I think there's no dispute at all from anyone that the critical mass is essential to get the educational benefits that we're talking about.

*If this goal is a compelling interest, then critical mass is essential to its attainment, given the small pool size that we're talking about.* Can it be crafted in another way? Obviously, from the amicus briefs, there are a lot of schools that do it in different ways. We're doing it in a very individualized way that in fact does allow students to compete. Every student is evaluated on the same criteria. You know, head to head. We do take race into account in the way that you've heard described. But I'm not sure that lacks the individuality that you would be striving for.


* If the educational benefits Michigan seeks from enrolling a substantial percentage of blacks and Hispanics are indeed "a compelling interest," this statement is true. No Justice, alas, has forcefully questioned the premise that these educational benefits are a compelling interest.

Nor has much attention been paid to the host of evils fostered in academic life and beyond when universities practice racial discrimination, and by their example teach others to go and do likewise. Scalia alluded to racial segregation in living quarters, but no one has mentioned the spread of racial discrimination from student admissions to student financial aid and mentoring, student organizations and social activities, faculty hiring, courses taught, readings assigned, and departments created. Moreover, racial considerations affect the definition of intellectual and academic standards; the limits, written and unwritten, on freedom of thought and speech; and the definition of harassment and other campus offenses. One cannot tell how aware the Justices are of these evils, or what defense Michigan could make if confronted with them.

This is, you know, an enormously important case. When Justice Powell said in Bakke that it's not too much to say that 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, I think that statement was absolutely correct then. I think it is, you know, it has never been truer than it is today. This is of enormous importance, not just to the University of Michigan, I'd say to all of higher education and I think to our country as a whole to be able to do things that bring us together, that bring us understanding, that result in tolerance and, I'd say, make us the -- more -- closer to the day that we all look forward to when, in fact, we are beyond some of these problems that we've been discussing rather intensely here today.

JUSTICE CLARENCE THOMAS: Mr. Payton, do you think that your admissions standards overall at least provide some head wind to the efforts that you're talking about?

MR. PAYTON: Yes, I do. I think they do in all sorts of ways. They are certainly producing black students, white students, Hispanic students, Native American students who go out into our communities and change their communities.

  Not knowing that a "head wind" is adverse to one's chosen direction, Payton misunderstands the question, whereupon Thomas (embarrassed?) will provide a rather confusing clarification.

JUSTICE THOMAS: You may have misunderstood me. I mean the -- Ms. Mahoney said earlier that the problem of law school admissions, in response to Justice O'Connor, that it was for the elite schools, it was more a problem at the elite schools, when she was talking about Boalt Hall, for example, you meant -- you suggested or alluded to in your argument today that, you know, you don't want to choose between being an elite school and the whole diversity issue. It -- would it be easier to accomplish the latter if the former were adjusted, that is the overall admissions standard?

MR. PAYTON: I think that –

JUSTICE THOMAS: Now, I know you don't want to make the choice, but will you at least acknowledge that there is a tension?

MR. PAYTON: I think, you know, some of our other schools, the nonselective schools, actually some can end up with completely undiverse populations as well; that the fact that a school does not have selectivity doesn't mean that the community college, in fact, is diverse. So I don't think it necessarily follows at all, that if you lower your standards and distribute this all across the country, we will get these educational benefits, you know, throughout our educational system.

  This response is consistent with Payton's initial concern about residential segregation. If schools that admit virtually all applicants nevertheless serve segregated populations, they would not have interracial student bodies, unless by special administrative efforts.

JUSTICE THOMAS: Now -- about 10 terms ago, we had the University of Mississippi higher ed. case in here –


JUSTICE THOMAS: -- and the argument was made that the historically -- the HBCs, the historically black colleges provided a different benefit to minorities. Would the same arguments with respect to diversity apply to those institutions?

MR. PAYTON: Yes. You mean do they benefit if they had a racially and ethnically diverse student body? I believe most every single one of them *do have diverse student bodies.*

  *A few whites, yes; but a "critical mass"? When speaking of a "racially and ethnically diverse student body" at HBCs, Payton's notion of the minimum that diversity requires seems smaller.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Payton. Mr. Kolbo, you have two minutes; you have three minutes remaining.


MR. KOLBO: With respect to the point system, Counsel has made it sound as if it's sort of a fortuity that the University of Michigan has an admissions system that ends up admitting -- admitting virtually all minority students. In fact, I want to talk a little bit about the record here. We put in the record the guidelines from the original system that was in place in 1995 and 1997. At the joint appendix, at page 80, it's made very clear that the guidelines were set in 1995, when Jennifer Gratz applied, to admit all qualified minority students. It's also undisputed in this record that the way the University got to the 20 points was to statistically design it based on the old model. So what they've done is they've taken the old guidelines that were set to admit all qualified minority students, statistically figured out how many points they needed to give -- to give to students under the new system to replicate the old system, and that's how we ended up with 20 points. So it -- it strikes me as disingenuous to suggest that it's simply an accident.

These policies have a purpose. They grant a preference for a purpose. And the new system does what the old system did -- did, which is to create a two-track system. It's not enough if you're Jennifer Gratz or Patrick Hamacher to be merely qualified to get admitted to the University. To be admissible is not simply enough because of their skin color. If however you're a member of one of the minority students and you meet those minimum qualifications, that's sufficient. If that's not a two-track system, I can't imagine what one -- what one would actually look like.

With respect to test scores, a question was made -- a question was asked about how long are these systems going to last. There's actually evidence, and this was not put in the -- in the record by the University, with respect to test scores and disparities, but there's -- there's also opposing opinion which has indicated that as long as we have these preferences, they create perverse incentives. We've cited the work of John McWhorter, for example, in our reply brief indicating that *test scores to the extent that they're not narrowing, or to the extent that the gaps are increasing may, in fact, be to the fact -- due to the fact of these -- of these preferences.* With respect to the **Hobbesian choice that Mr. Payton has talked about,** they have resolved a different Hobbesian choice. The University has decided that they are willing to lower their academic standards to get their critical mass.


* One could test this hypothesis by comparing blacks or Hispanics from states with and without racial preferences in college admissions. Controlling for relevant variables such as IQ and socio-economic status, are the subjects doing better or less well where the preferences are available?

** In vocabulary if not in law, Kolbo is following Payton here to a dead end. What he means is neither a "Hobbesian" nor a Hobson's "choice." What he actually needs is a phrase that expresses two desired but more or less incompatible options.

They've resolved that -- that Hobbesian choice that way. But they've resolved the other Hobbesian choice, how to get those objectives and stay selective, *they've resolved that Hobbesian choice on the backs of the constitutional rights of individuals like Jennifer Gratz and Patrick Hamacher.* They are the ones that are paying for the Hobbesian choice that the University has resolved with -- by the use of a two-track admission system.

  * Good point, when Hobbes and Hobson are set aside.

With respect to the concept of critical mass, all I have to say, if one can't ascertain from the way it's defined, meaningful means sufficient, sufficient means critical, critical means sufficient, that meets the definition, it seems to me, of an interest that's too amorphous, too ill-defined, too indefinite, just like the role model theory, just like a remedy for societal discrimination, too indefinite to support the use of a compelling -- to suit -- to use -- to be a basis for racial preferences.

CHIEF JUSTICE REHNQUIST: Thank you Mr. Kolbo. The case is submitted.