The United States Supreme Court
The University of Michigan Admissions Lawsuits

Grutter v. Bollinger
10 a.m., April 1, 2003

Kirk O. Kolbo, Esq., in behalf of Barbara Grutter
Theodore B. Olson, United States Solicitor General, supporting Grutter
Maureen E. Mahoney, Esq., in behalf of the Michigan University Law School
Chief Justice William H. Rehnquist, then Justices Sandra Day O'Connor, Anthony M. Kennedy, Ruth Bader Ginsburg, John Paul Stevens, David H. Souter, Antonin Scalia, and Steven G. Breyer

Comments indented in italics by Curtis Crawford*


CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 02-241, Barbara Grutter v. Lee Bollinger. Mr. Kolbo.


Mr. KOLBO: Mr. Chief Justice and may it please the Court: Barbara Grutter applied for admission to the University of Michigan Law School with a personal right guaranteed by the Constitution that she would not have her race counted against her. That race -- that the application would be considered free from the taint of racial discrimination. The law school intentionally disregarded that right by discriminating against her on the basis of race as it does each year in the case of thousands of individuals who apply for admission. The law school *defends its practice of race discrimination* as necessary to achieve a diverse student body. **The diversity that the law school is committed to ensuring in meaningful numbers or critical mass is of a narrow kind defined exclusively by race and ethnicity.** The constitutional promise of equality would not be necessary in a society composed of a single homogeneous mass.


* Without ever admitting that its use of race is "race discrimination."

** True, although this "narrow" and crucial commitment to racial diversity is defended by Michigan as serving a broad, viewpoint diversity.

It is precisely because we are a nation teeming with different races and ethnicities -- one that is increasingly interracial, multiracial, that it is so crucial for our Government to honor its solemn obligation to treat all members of our society equally without preferring some individuals over others.

JUSTICE SANDRA DAY O'CONNOR: Well, of course, you -- I mean, a university or a law school is faced with a serious problem when it's one that gets thousands of applications for just a few slots. Where it has to be selective. And inherent in that setting is making choices about what students to admit. So you have an element here that suggests that there are many reasons why a particular student would be admitted or not. And a lot of factors go into it. So how do you single this out and how are we certain that there's an injury to your client that she wouldn't have experienced for other reasons?


Is O'Connor questioning whether the Michigan Law School discriminates against applicants based on their race? Or, more narrowly, is she questioning whether Barbara Grutter's rejection was because of her race?

MR. KOLBO: Well, Your Honor, first of all, race is impermissible because of the constitutional command of equality. The university is certainly free to make many different kinds of choices in selecting students. And to look for all kinds of different diversity, experiential diversity, perspective diversity without regard to race, but race because, Your Honor, of the constitutional command of equality, must be beyond the bounds –

 There is no "constitutional command of equality" in general. The Equal Protection Clause, as interpreted, bars unequal treatment when based on race, unless it is narrowly tailored to serve a compelling interest.

JUSTICE O'CONNOR: You say that's not -- it can't be a factor at all. Is that it? Is that your position that it cannot be one of many factors?

MR. KOLBO: Our view, Your Honor, is that race itself should not be a factor among others in choosing students because of the Constitution.

JUSTICE O'CONNOR: Well, you have some -- some precedents out there that you have to come to grips with, because the Court obviously has upheld the *use of race* in making selections or choices in certain contexts, for instance, to remedy *prior discrimination* in other contexts.

 * Note the linguistic double standard. When referring to past racial discrimination against minorities, O'Connor calls it "discrimination"; when referring to present racial discrimination by the Law School in favor of minorities, she calls it "use of race."

MR. KOLBO: Oh, absolutely, Your Honor.


MR. KOLBO: And I want to be clear about that. We are –

JUSTICE O'CONNOR: Well, but you are speaking in absolutes and it isn't quite that. I think we have given recognition to the use of race in a variety of settings.

MR. KOLBO: And we absolutely agree, Justice O'Connor.

JUSTICE ANTHONY M. KENNEDY: Is it cause for concern with you -- if you're the dean of the law school or the president in the university or the Governor of the State, that *minority students, particularly from the Black and Hispanic community are underrepresented by a large factor, according to their -- their share of the population?* Suppose you have a law school with two or three percent Hispanic and -- and black students, is that a legitimate concern for the university and for the State officials?

 * When people say "underrepresented" in this context, they may be using the word simply to describe a fact, or also to express regret about the fact, or also to denounce the fact as unjust. How is Kennedy using the word?

MR. KOLBO: We believe not, Your Honor, for the reason that we need to get away from the notion that there's some right number for each racial group.

 I quite agree. But the University and some of the Justices may not. One needs to show what's wrong with "the notion that there's some right number for each racial group."

JUSTICE KENNEDY: So if year after year after year there's an underrepresentation, there is no cause for the State or the Government or its educational experts to be concerned whatsoever?

MR. KOLBO: I wouldn't say not to be concerned, Your Honor, I think the mere fact of underrepresentation, that is that say, blacks are not represented as they are in the population is not a concern that would justify racial preferences. It certainly would justify perhaps broad social and political concerns. .

 Careful! Those "broad social and political concerns" are fine if limited to a desire, e.g., to reduce racial discrimination, regardless of the race of those discriminated against, and to improve public education, regardless of the race of the pupils benefited. But if they extend to a desire to change the percentage of black lawyers or white football players, they take sides—discriminate—based on race

JUSTICE KENNEDY: Well, *it's a broad social and political concern that there are not adequate members of -- of the profession which is designed to protect our rights and to -- and to promote progress.* I would -- **I should think that's a very legitimate concern on the part of the State.**


* This sounds like an assumption that blacks and Hispanics need to have black and Hispanic lawyers to protect their rights and promote their progress. If this assumption is true, the legal profession is discriminating against these minorities, and/or the minorities are discriminating against lawyers who want to help them. In either case, the healthy remedy is to combat the discrimination, not to ratify it.

** Kennedy needs to explain why he believes that. Is he on his way to the notion that increasing the proportion of blacks and Hispanics in elite colleges and/or as lawyers is a compelling State interest, justifying racial discrimination in admissions?

MR. KOLBO: The current concern there, Your Honor, ought to be addressed by -- by addressing the problem. If there is some reason that -- that particular minority groups are not participating as fully in the fruits of our society such as being represented at the schools, we need to address those problems. But racial preferences don't address those problems.

JUSTICE RUTH BADER GINSBURG: Mr. Kolbo, may I call your attention in that regard to the brief that was filed on behalf of some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding preference, but a plus for race. It cannot be done through a percentage plan, because of the importance of having people who are highly qualified. What is your answer to the argument made in that brief that there simply is no other way to have Armed Forces in which minorities will be represented not only largely among the enlisted members, but also among the officer cadre?

  The military brief's thesis, well stated. Notice that Ginsburg also avoids the terms racial preference and racial discrimination in describing how the military recruits minority officers.

MR. KOLBO: Justice Ginsburg, I don't believe we have an adequate record in this case from which to conclude that we wouldn't have representation of minorities. The military in the absence of –

JUSTICE GINSBURG: Suppose that were true. Let's take that as the fact, would you still say nonetheless even if it's true that there will be very few, if any, minority members admitted to the military academies, still you cannot use race?

MR. KOLBO: I believe race could not be used, Your Honor. I think that other solutions could be looked at addressing the problem why there are not minorities in the military. I note that the United States has not taken a position. We have the brief as Your Honor has mentioned from several individuals, the United States has not taken a position in this case, the military academies have not taken a position.

JUSTICE JOHN PAUL STEVENS: Yes, they have, if the brief is accurate about the regulations, the academies have taken a position.

MR. KOLBO: As I understand it, Justice Stevens, the briefs are filed on the behalf of individuals.

JUSTICE STEVENS: I understand that. But they are quoting material that the academies have distributed, which indicate they do give preferences. MR. KOLBO: Well, Your Honor --

JUSTICE DAVID H. SOUTER: Do you challenge the fact -- that that is a matter of fact?

MR. KOLBO: We don't challenge what they say, Your Honor. We're just suggesting -- we don't have a record in this case.

JUSTICE SOUTER: No, but do you challenge the fact that they are giving the preference?

  Both Stevens and Souter are willing to call preference "preference."

MR. KOLBO: We don't have enough information on it to know whether –

JUSTICE SOUTER: Are you serious that you think there is a serious question about that? That we cannot take that green brief as a representation of fact?

MR. KOLBO: I just don't know, Your Honor, what the facts are with respect to the military because this case was –

 Kolbo seems unprepared to deal with the arguments in the military brief. I wish he had responded (a) that military policy should be zero tolerance for racial discrimination in both the conduct and recruitment of both officers and non-officers, or (b) that national military security might be a compelling public interest justifying racial preference in military recruitment, but not in higher education and the professions.

JUSTICE ANTONIN SCALIA: It depends on what fact you're talking about, doesn't it? You accept the fact that they're giving preferences, but that doesn't convert to the fact that if they didn't give preferences, there is no other way to get an officer corps that includes some minority people, does the brief say that?

 Scalia calls preferences "preferences."

MR. KOLBO: It does not, Your Honor. We have no evidence as to what the extent of representation is.

JUSTICE SCALIA: The issue as I understand it is not whether without preferences there can be a military academy population with some minorities, the question is whether without the -- the weighting of race that they do in fact give, they can have an adequate number of minorities in the academies to furnish ultimately a reasonable number of minorities in the officer corps, that's the issue, isn't it?

 Scalia here suggests that the government may lawfully adopt as a goal the recruiting of an "adequate" or "reasonable" number of military officers of certain racial groups. Such a goal is not race-neutral: it is race-conscious and racially preferential. On what basis would he argue the validity of racial goals? How would he square them with the presumptive ban on racial classification under the Equal Protection Clause? At this point the opponents of racial policies may wonder: If Scalia and Kennedy are against us, who will be for us?

MR. KOLBO: Well, Your Honor, again, the -- the terms you've used, reasonable and adequate, we have no information in this record on which I can make those –

JUSTICE SCALIA: More than what would happen if they did nothing?

MR. KOLBO: And that number, Your Honor, I don't know what it is. Again, because it wasn't part of this case. I think it's more –

JUSTICE SCALIA: More than what would happen if they did something else, such as making special provision for all people of economically disadvantaged background. We don't know whether that would have produced the same number, either.

MR. KOLBO: That's correct, Your Honor. As the Court –

JUSTICE SOUTER: Do you believe that that would be an adequate -- at least means of experimenting here -- take it as an alternative?

MR. KOLBO: Taking race neutral alternatives into consideration?

JUSTICE SOUTER: Well, taking for example economic disadvantage?

MR. KOLBO: Yes, Your Honor.

JUSTICE SOUTER: Do you seriously believe that that would be anything but a surrogate for race? It would take the word race out of the categorization of the label that we put on it, but do you believe it would function in a different way but as a surreptitious approach to race?

MR. KOLBO: It certainly can function differently, Your Honor. Race controls –

JUSTICE SOUTER: Do you think it would?

MR. KOLBO: Certainly, yes –

JUSTICE SOUTER: Is there any reason to believe that it would?

MR. KOLBO: I do, Your Honor, because it's not just minorities that are socioeconomically disadvantaged in this country. That happens with respect across racial lines. So race neutral alternatives –

JUSTICE SOUTER: The object -- but the object I would have assumed given the dialogue, the object is to increase the racial number of the percentage of minorities. *If that is the object, then whatever it is, it's not a race neutral measure.*

 * True.

MR. KOLBO: Well, I would disagree, Your Honor, because I think *if you have a race neutral means that accomplishes many purposes, and one of them is race, that is not necessarily under this Court's precedents unconstitutional.* The Court –

 * Such a policy may be constitutional (e.g., in the Court's decisions concerning election districts), but if one of the purposes is racial, it is not race-neutral.

JUSTICE KENNEDY: Well, let me ask you this, it's about the military brief that you didn't come here to argue about, but it will maybe get you back to your case.

MR. KOLBO: Sure.

JUSTICE KENNEDY: The military brief tells us -- the green brief -- that there are preparatory schools that the academies have and 40 percent of the registration in those preparatory schools are racial minorities. And they -- suppose the Government does this and expends money for the purpose of recruiting and helping racial minorities apply to the academies and succeed there. Is that a proper constitutional purpose?

MR. KOLBO: I see no constitutional objection there, Justice Kennedy. For the reason I think it -- it's quite permissible in principle to draw a line between casting a wider net, recruiting and -- and the point of competition where people -- where people -- where the decision must be made whether people are going to be treated on the basis of the same –

JUSTICE KENNEDY: Would you allow recruiting targeted at minorities?

MR. KOLBO: I don't see the constitutional objection with that, Your Honor.

  It seems that Kolbo believes that governmental racial preference in college admissions is unconstitutional, but not governmental racial preference in preparatory training. He says they can be distinguished "in principle." What is the principle?

JUSTICE STEPHEN G. BREYER: Fine. If you can *use race* as a criterion for spending money, I take it one argument on the other side, which I'd like you to address, is that we live in a world where more than half of all the minority -- really 75 percent of black students below the college level are at schools that are more than 50 percent minority. And 85 percent of those schools are in areas of poverty.

 * Breyer calls giving racial preference "us[ing] race"

And among other things that they tell us on the other side is that many people feel in the schools, the universities, that the way -- the only way to break this cycle is to have a leadership that is diverse. And to have a leadership across the country that is diverse, you have to train a diverse student body for law, for the military, for business, for all the other positions in this country that will allow us to have a diverse leadership in a country that is diverse.

 In the phrase, "a leadership that is diverse," what exactly does Breyer mean by "diverse"? In the "argument on the other side," "diversity" means racial diversity and, specifically, obtaining a higher percentage of blacks and Hispanics at the Law School than would be admitted without using racial preference. If that is Breyer's definition of "diverse," how high must the percentage of blacks and Hispanics in our country's leadership be to make it "diverse"?

Now, you're familiar with that argument. But if it is reasonable to use race as a criterion, as a plus for spending money, why isn't it also reasonable to use it as a plus to see that -- to obtain *that set of objectives that I've tried to summarize in a second that you're very familiar with.*

 * "Objectives summarize[d] in a second" in very ambiguous language. They sound like the elements of a rationale for a new compelling interest. Is Kolbo indeed "very familiar with" the argument Breyer is developing? His reaction doesn't sound confident.

MR. KOLBO: Because very simply, Justice Breyer, the Constitution provides individuals with the right of equal protection. And by discriminating on the basis of race at a point of competition, innocent individuals are being injured in their constitutional rights. That's the distinction between that and simply trying to cast a wider net, recruiting spending money on outreach efforts, a very principled line it seems to me can be drawn between those two things.

 Kolbo repeats that a "principled line . . . can be drawn," but doesn't describe the principle.

JUSTICE BREYER: The reason that the injury is more severe to the white person who doesn't get in when that white person doesn't get in because she's not an athlete or he's not an alumnus or he's not any of the other things that fit within these other criteria? What is the difference there?

MR. KOLBO: The difference is the Equal Protection Clause, Your Honor. It does not apply to alumni preferences in scholarships. It applies to race.

JUSTICE BREYER: That's the legal conclusion. But the reason if I thought, for example, that there is a difference under the Equal Protection Clause, between a system that says to the discriminated-against people, the law does not respect you, and a system that says the law does respect you, but we are trying to help some others, suppose I thought that that is a sound legal distinction as reflected in this Court's cases, you would reply that?

 Breyer here is referring to a distinction, that the pro-affirmative action wing of the Court has long favored, between benign (OK) and invidious (not OK) racial discrimination.

MR. KOLBO: Sound and reasonable, Your Honor, is not enough when it comes to race. It must be a compelling purpose. And that is the difference. There are many policy choices a university can make that I may disagree or agree with, and that I have no legal standing or no client has a legal standing to challenge, because they don't implicate important constitutional rights. There is something special about race in this country. It's why we have a Constitution about it. It's why we have a constitutional amendment.

JUSTICE GINSBURG: Why -- why do you draw the line at -- you said you can recruit -- you can use a race criterion, if I understood you correctly, to recruit, you could have minority students only given the benefit of scholarships to go to these preparatory schools. You were surely recognizing the race criterion there. Why is that permissible?

MR. KOLBO: Because it doesn't prevent someone from applying. The key is to be able to compete on the same footing at the point of competition.

  At this point, Kolbo's principle seems to be that so long as the white and black applicants to West Point are judged by the same standards regardless of race when they apply, the fact that the government prepares one applicant and not the other, based on their race, raises no constitutional problem. The Justices and I are still puzzled as to why.

JUSTICE SCALIA: These preparatory schools -- do you concede that they're only for minority students? I'm familiar with those preparatory schools; they are not.

  Scalia to the rescue.

MR. KOLBO: Certainly not –

JUSTICE SCALIA: The majority of the people that attend them are young men and women who really want to get into the service academies, but don't have the grades for it. And the service academy tells them whether they're black, white or anything else, go to these preparatory schools and you'll have a better chance next time around.

MR. KOLBO: That –

JUSTICE SCALIA: It isn't just for minorities. MR. KOLBO: They're not, Your Honor. They are open to -- accessible to all.

 This changes the hypothetical. If "these preparatory schools" are indeed equally "accessible to all," no racial discrimination is involved.

JUSTICE GINSBURG: I was asking you about your answer to the question, not -- the fact may very well be, but I thought you had answered the question, yes, you could have special preparation for minorities only, yes, you could have recruitment for minorities only. I thought that that was your answer.

MR. KOLBO: I believe you can -- as part of a broad program, I believe you could. You could seek outreach for minority students, because it's very simple it seems to me to draw a principal distinction between outreach, casting a wider net and applying the same standard at the point of -- at the point of competition.

JUSTICE SCALIA: Including at the point of giving the benefit of going to one of these preparatory schools. You wouldn't allow one of these preparatory schools to be for minority only, would you?

MR. KOLBO: No, of course not, Your Honor. And I'm not suggesting that outreach would be limited to minorities only. I'm just suggesting that -- I don't understand why there would be a constitutional objection to trying to cast a wider net by focusing as part of a broader effort of outreach in recruiting minority students and it can be quite -- it's quite easy to draw the line between that and -- and the point of competition.

JUSTICE GINSBURG: If you're right -- if you're right about what equal protection requires and we have also two statutes that incorporate the equal protection principle, then there could be no affirmative action, I take it, in employment?

MR. KOLBO: There could be, Your Honor, to remedy past identified discrimination, but not to exceed diversity and there is not today as I understand it any compelling interest in the employment context with respect to –

JUSTICE GINSBURG: So, for example, if we have a prison that was largely minority population and the State wanted to give a preference so that it would have a critical mass of correction officers of the minority race, that would be impermissible? MR. KOLBO: It would be impermissible, Your Honor, unless based upon a compelling interest and the only one that has been recognized in the employment context is identified discrimination. And I don't see that in your hypothetical.

JUSTICE GINSBURG: No, it's not in my hypothetical.

JUSTICE STEVENS:: Can I ask you one question about the extent of your position. There's a brief applied, I think it's by the Potawatomi tribe. If Michigan had made -- the governor of Michigan many years ago had made a commitment to an Indian tribe to allow three persons into the University of Michigan every year, three tribesmen, and nothing else, would that be constitutionally permissible?

MR. KOLBO: I don't believe so Your Honor. Again, it's a distinction drawn on the basis of race.

JUSTICE STEVENS: Or just one, still would be a -- that would exclude an impermissible number of slots for –

MR. KOLBO: If it's slots on the basis of race, Your Honor. And if there are no further questions, if I may reserve the balance of my time, Mr. Chief Justice.

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 Michigan law school admissions program fails every test this Court has articulated for evaluating governmental racial preferences. First, it is –

JUSTICE STEVENS: General Olson, just let me get a question out and you answer it at your convenience. I'd like you to comment on Carter Phillips' brief. What is your view of the strength of that argument?

GENERAL OLSON: Well, I'm not sure –

JUSTICE STEVENS: That's the one about the generals and about the military academies.

GENERAL OLSON: I understand -- the -- our position with respect to that is we respect the opinions of those individuals, but the position of the United States is that *we do not accept the proposition that black soldiers will only fight for black officers,* [and we believe] that race neutral means should be used in the academies as well as other places. And that to the extent that there's any difference in analysis, the Court might consider its position, the position it articulated in connection with the military in Rostker v. Goldberg. But our position with respect to that brief is that –

 * Good! Better: if "black soldiers" are unwilling to "fight for" white "officers," the former and/or the latter are practicing racial discrimination, which should be unacceptable in the armed forces.

JUSTICE STEVENS: Your suggestion is that the military has broader latitude than the private university?

GENERAL OLSON: No, I'm suggesting that –

JUSTICE STEVENS: Well, your pointing to Rostker suggests that.

GENERAL OLSON: Yes, I'm suggesting that the Court will want to look at each of these individual situations according to the circumstances and that may be a factor in that context. But I started my answer, Justice Stevens, by saying [we] do not accept the proposition that race neutral means should not be used and employed fully to -- to make sure that the academies are accessible and open and -- and offer opportunities for as many people as possible.

  Thus far, Olson insists not only on race-neutral means, but on a race-neutral end: "accessible and open" military academies, offering "opportunities for as many people as possible."

JUSTICE GINSBURG: But you recognize, General Olson, that here and now, all of the military academies do have *race-preference programs* in admissions?

 *Here, Ginsburg calls race-preference programs "race-preference programs."

GENERAL OLSON: The Coast Guard does not. It's prohibited by Congress from doing so. I do acknowledge, Justice Ginsburg that the other academies are doing so. It's the position of the United States –

JUSTICE GINSBURG: That that's illegal what they're doing?


JUSTICE GINSBURG: Is it -- that it is illegal, a violation of the Constitution?

GENERAL OLSON: We haven't examined that and we haven't presented a brief with respect to the specifics of each individual academy. And we would want to take into consideration any potential impact suggested by the Court in the Rostker case.

JUSTICE SOUTER: What do you -- what do you think is the -- is the principal race-neutral means, that the academy should use?

MR. OLSON: Well –

JUSTICE SOUTER: Without criticizing necessarily what they're doing now, what would be the -- in your judgment, the best race-neutral way for them to go about reaching your objective?

GENERAL OLSON: Well, there are a variety of race-neutral means and narrowly tailored methods by which academies and universities can reach out to people of all backgrounds to make sure that they've eliminated –

 Olson sounds unprepared for this question.

JUSTICE SOUTER: No, no. I realize your position. But specifically, which -- which of the race neutral suggestions that have been considered do you think would be, you know, most adaptable to the academy situation?

GENERAL OLSON: Widespread recruiting, making sure that there's opportunities for education and advancement in the -- in the academies.

JUSTICE SOUTER: Recruiting with an objective of minority students?

GENERAL OLSON: Not limited, a race-neutral system of broad-scale recruiting that -- This Court has always supported the proposition that efforts may be made by governmental institutions to eliminate barriers that have existed where artificial barriers –

JUSTICE SOUTER: O.K. But my question is, if they don't do it with a racial objective, how does the recruiting respond to the position taken in -- in Mr. Phillips's brief that without the kind of -- of racial weighting in admissions that is given now, they simply will not reach a -- a -- a substantial number of -- or be able to attain a substantial number of minority slots in the class?

  In their exchanges with Olson, neither Stevens, Ginsburg, nor Souter has expressed or implied any constitutional objection to setting racial goals for military academy enrollment, or using racial means for reaching the goals.

GENERAL OLSON: That is the opinion of certain individuals. It is -- we do not accept that conclusion based upon those opinions. *And this Court has repeatedly held that race neutral means must be demonstrated and will be accepted, and will not -- and the Court will not accept the proposition that race neutral means will not be successful, unless they've been attempted and demonstrated [to be unsuccessful].*

 * This passage is unclear on the tape.

These -- this program [of] the University of Michigan Law School fails every one of the Court's tests. First, it's a thinly disguised quota which sets aside a significant portion of each year's entering class for preferred ethnic groups. Secondly, it overtly employs stigmatizing and divisive racial stereotypes, what the law school calls diversity-relevant characteristics. It identifies persons by diversity-relevant characteristics.

JUSTICE BREYER: Well, what they do is they use race.

 "What they do is" they discriminate based on race.


JUSTICE BREYER: I know. But they have a reason for it. The reason for it is they want to produce a diverse class and the reason they want to do that, using it as a plus, they say, is to do the things I said before. They think it breaks down stereotypes within the class. They think it's educationally beneficial. *They think it supplies a legal profession that will be diverse and they think a legal profession like business and the military that is diverse is good for America from a civics point of view, et cetera, breaks the cycle.* Those are the arguments which you well know. So what is your response?

 * This argument is not emphasized in Michigan's brief, but it is important to Breyer. He seems to favor the recognition of a new governmental compelling interest: substantial minority representation in the leadership of our society.

GENERAL OLSON: Well, a response to those many arguments is that they've -- they're using stereotypes to in an effort, they say to break down stereotypes, they're using race as a -- a surrogate for experience. *And if they want to look at experience, they can look at experience.* If they want to improve the educational opportunities of minority groups, one of the biggest problems –

 *Precisely, on an individual basis!

JUSTICE BREYER: That's not what they say. They say they're not using race as a surrogate for anything, because if you have a person who went to Exeter who's very rich and happens to be black and is a conservative Republican, it's great for the class to know that, too. And that's why they want a certain number.

GENERAL OLSON: But that person -- that person if he went to Exeter and he has a great GPA and so forth gets an extra opportunity either a portion of the class is set aside for that individual solely on the basis of race, irrespective of his experience. And the application isn't examined for the type of experience or the type of viewpoint. That race-diversity characteristic is used as a substitute for any examination of the individual [as an] individual.

 Thus far, Olson has refused to accept racial preference as a means, and racial diversity or racial percentages as goals. Schools are free to pursue experiential diversity by admitting individuals whose resumes indicate it.

JUSTICE O'CONNOR: General Olson, do you -- do you agree with the articulated proposal of Justice Powell in the Bakke case of using race as a plus factor as he -- as he saw the use of it. Do you disagree with that approach?

GENERAL OLSON: We disagree with that approach in the sense that we -- we -- in the first place, contrary to what our opponents have said, we would not believe that that single opinion, which was the only opinion, to examine the issue of diversity under a compelling argument –

JUSTICE O'CONNOR: *I don't think it commanded a court.* I'm just asking if you agreed with that approach.

  * An important statement by the Court's "swing" Justice. But will Powell's rationale command this court?

GENERAL OLSON: We're reluctant to say never, Justice O'Connor. But this test -- every test that Justice Powell applied in that opinion, the law school program here fails. It's a stereotype.

JUSTICE SCALIA: But General Olson, is race different from sex in that regard? I thought we have -- we have disapproved using sex as just a plus factor? That is one factor among many, but, you know, when you get down to it, this is -- this person is a male and therefore we'll put that into the mix and that'll favor the person. We've disapproved that with regard to sex discrimination, haven't we?

GENERAL OLSON: I don't disagree with that.

JUSTICE SCALIA: Why would race discrimination be any different?

GENERAL OLSON: I'm suggesting that the programs here, without getting to the point of whether are there any other circumstances whether they be remedial, which this Court -- a factor of the Court has recognized before, or something else in an unusual situation, where it could be appropriate. I don't know what that might be. But this test –

JUSTICE GINSBURG: I think Santa Clara -- I think what Justice Scalia said bears modification, because in fact in Santa Clara, the highway dispatcher, there was a plus for sex, although there was no proven discrimination against that particular woman and this Court approved that.

GENERAL OLSON: I would also say that it's conceivable if you're constructing -- the National Institutes of Health is constructing this study of diseases that focus on particular races, the race may be a factor but the fact is that the law school program here, not only is a set aside and a quota, but it -- but it –

JUSTICE STEVENS: General Olson, I'm not sure you answered Justice O'Connor's question. Do you agree with Justice Powell's suggestion that race could be used as a plus in something like the Harvard program?

GENERAL OLSON: No, the Harvard program (a) wasn't examined according to any compelling governmental interest. It was examined only –

JUSTICE STEVENS: So your answer is no, you would not agree with that?

GENERAL OLSON: We would not, based upon what we see in that opinion, which is –

JUSTICE KENNEDY: Would you disagree with his use of the term, diversity, as being a permissible governmental goal?

GENERAL OLSON: Well, the only way to answer that, Justice Kennedy, is that *the word diversity means so many things to so many different people.* It means both a means to get experience and a diversity of experience. It also means, I think what the law school has done, it's an end in and of itself. If it's an end in and of itself, obviously it's constitutionally objectionable that this Court –

 * True, and those who promote it never say how they define it

.JUSTICE BREYER: So is the Texas plan constitutional? If it's designed solely in order to have a diverse mix in the colleges? They take 10 percent, but their motive stated and their purpose is to have diversity in the college.

 When Powell in Bakke spoke simply of "diversity," he meant variety of viewpoint and experience. When Breyer in this oral argument speaks simply of "diversity," he means an increase in the percentage of black and Hispanic enrollment. If Texas has stated that its "purpose is to have diversity in the college," who know what they mean by "diversity"?

GENERAL OLSON: Justice Breyer, *I don't believe that that is the stated motive* of the Texas plan or the California or the Florida plan. Those are intended to open up those institutions to a broader selection, one of the ways in which this Court has accepted the institution such as universities may operate is to make sure that barriers are broken down, accessibility is made more available and that is one very race-neutral means of accomplishing that legitimate objective.

  * Olson's answer obscures the fact that the real motive of the plans was to increase the percentage of blacks and Hispanic enrollment

.JUSTICE SOUTER: General, what do you say to the argument that the only reason it accomplishes it is because it depends on segregation at the lower level of the schools, otherwise it would not accomplish that?

MR. OLSON: No, *there is no evidence that it depends upon segregation of the schools in Texas or in any other place.* It is a diverse selection of the high schools in that state.

 * This statement is true only if "segregation" is defined as unlawful racial separation.

CHIEF JUSTICE REHNQUIST: Thank you, General Olson. Ms. Mahoney, we'll hear from you.


MS. MAHONEY: Mr. Chief Justice, and may it please the Court: The Solicitor General acknowledges that *diversity* may be a compelling interest but contends that the University of Michigan Law School can achieve a diverse student body through facially race neutral means. His argument ignores the record in this case.

  * "Diversity" here is unspecified. What does Mahoney claim that Olson has acknowledged to be a compelling interest—"diversity" in the sense of viewpoint variety, or "diversity" in the sense of a larger proportion of minority students?

JUSTICE KENNEDY: I'm not sure -- in his brief does he acknowledge that can be a compelling interest?

MS. MAHONEY: The brief says that it is one of the paramount interests of government to have *diversity* in higher education. And it has certainly been the consistent position of the Department of Education for the past years that Bakke is the governing standard, that schools are encouraged to use programs to achieve *diversity,* because of the important interests it serves for students of all color.

  * Still undefined.

CHIEF JUSTICE REHNQUIST: Ms. Mahoney, supposing that after our Bakke decision came down, whereas Cal. Davis had set aside 16 seats for disadvantaged minorities, and Cal. Davis said we're going to try to get those 16 seats in some way, we're going to try high school graduates, we're going to try socioeconomic and none of those methods get the 16 seats that they want. Can they then go back and say we've tried everything, now we're entitled to set aside seats?

MS. MAHONEY: I don't think so, Your Honor. I think what the Court's judgment in Bakke said and certainly what Justice Powell's opinion said is that it's simply not necessary to do a set aside, because a plan like the Harvard plan, which takes race into account as one factor, can be used as an effective means to –

CHIEF JUSTICE REHNQUIST: But my hypothesis was, they wanted 16 seats and that plan just won't give it to them.

MS. MAHONEY: Well, if -- if the program was designed to have fixed seats, no matter what the qualifications of the applicant pool, no matter what the disparities between the minority and majority students would be, then I think it's fair to say that that would be a quota. If that was the nature of the program. But here the record indicates that the -- the law school's program is nothing of the kind. That what has occurred over the years with this program is that there have been offers that have ranged from 160 to 232 over the course of eight years. There have been enrollments that went from 44 to 73. It has been a very flexible program.

 Mahoney favors racial preference but apparently not racial quotas. If the former is good, why is the latter bad? Does she distance Michigan's plan from a quota because Powell was against quotas? But Powell's opinion did not "command a court."

JUSTICE SCALIA: Ms. Mahoney, I -- I find it hard to take seriously the State of Michigan's contention that racial diversity is a compelling State interest, compelling enough to warrant ignoring the Constitution's prohibition of distribution on the basis of race. The reason I say that is that the problem is a problem of Michigan's own creation, that is to say, it has decided to create an elite law school, it is one of the best law schools in the country. And there are few State law schools that -- that get to that level.

Now, it's done this by taking only the best students with the best grades and the best SATs or LSATs knowing that the result of this will be to exclude to a large degree minorities. It is -- it's not unconstitutional to do that, because it's -- that's not -- not the purpose of what Michigan did, but it is the predictable result. Nonetheless, Michigan says we want an elite law school. Now, having created this situation by making that decision, it then turns around and says, oh, we have a compelling State interest in eliminating this racial imbalance that we ourselves have created. *Now, if Michigan really cares enough about that racial imbalance, why doesn't it do as many other State law schools do, lower the standards, not have a flagship elite law school?* It solves the problem.

 * Scalia's question assumes that, under the Constitution, a state university may adopt an admissions policy with a racial purpose, if the admissions criteria are race-neutral.

MS. MAHONEY: Your Honor, I don't think there's anything in this Court's cases that suggests that the law school has to make an election between academic excellence and *racial diversity.* The interest here is having a –

 * Apparently, by "diversity" Mahoney means racial diversity.

JUSTICE SCALIA: If it claims it's a compelling State interest. If it's important enough to override the Constitution's prohibition of racial discrimination, it seems to me it's important enough to override Michigan's desire to have a super-duper law school.

MS. MAHONEY: Your Honor, the question isn't whether it's important to override the prohibition on discrimination. *It's whether this is discrimination.* Michigan -- what Michigan is doing benefits –

 * A standard definition of "racial discrimination" is different, especially unequal, treatment based on race. Does Mahoney deny that U-M's Law School treats applicants unequally based on their race? She must be aware of the uncontested testimony at trial in district court showing huge disparities between the rates of admission of favored minority and other applicants. If these disparities are justified, she should show that, rather than pretend they do not exist. [See, on this website, Grutter Disparate Rates of Admission here.]

JUSTICE KENNEDY: No, no. No. The question is whether or not there is a compelling interest *that allows race to be used.*

 * " . . . that allows" racial discrimination.

MS. MAHONEY: That's correct, Your Honor.

JUSTICE KENNEDY: And Justice Scalia's question is designed to put to you the fact that this isn't a compelling interest, because it's a choice that the Michigan law school has made to be like this.

MS. MAHONEY: Your Honor, the issue is whether it is sufficiently compelling to allow Michigan to take race into account in this limited fashion in order to provide a much better education for students of all races. The benefits are race neutral, Your Honor, and *the burdens are really quite limited.* What we're talking about here –

 * "Quite limited"? An incomplete list would include: "It [racial preference in university admissions] is personally unfair, passes over better qualified students, and sets a disturbing legal, political, and moral precedent in allowing racial discrimination; it creates resentment; it stigmatizes the so-called beneficiaries in the eyes of their classmates, teachers, and themselves, as well as future employers, clients, and patients; it fosters a victim mindset, removes the incentive for academic excellence, and encourages separatism; it compromises the academic mission of the university and lowers the overall academic quality of the student body; it creates pressure to discriminate in grading and graduation; it breeds hypocrisy within the school; it encourages a scofflaw attitude among college officials; it mismatches students and institutions, guaranteeing failure for many of the former; it papers over the real social problem of why so many African Americans and Latinos are academically uncompetitive; and it gets states and schools involved in unsavory activities like deciding which racial and ethnic minorities will be favored and which ones not, and how much blood is needed to establish group membership." (Roger Clegg, General Counsel of the Center for Equal Opportunity, "Debater's Notes," National Review Online, April 1, 2003)

JUSTICE KENNEDY: But the question put to you is Michigan has designed its school in a particular way and it doesn't have to do that.

MS. MAHONEY: But Your Honor there is a compelling interest in having an institution that is both academically excellent and racially diverse, because our leaders need to be trained in institutions that are excellent, that are superior academically, but they also need to be trained with exposure to the viewpoints, to the perspectives, to the experiences of individuals from diverse backgrounds.

JUSTICE KENNEDY: But -- but that brings us to the question of the use of race, which is being used here. Let me ask you this: Suppose there's a reasonable disagreement as to whether or not the so-called critical mass is, in fact, a disguised quota, you would say it is not. Suppose there's a reasonable disagreement on that point; if that's so, you lose, is that not correct?

MS. MAHONEY: No, Your Honor, because the district court did not make any factual findings that would support the conclusion that this is a disguised quota.

JUSTICE KENNEDY: Is it beyond this Court's capacity to say that? It certainly at a minimum a mixed question of law and fact. You're arguing here that it isn't. I'm certainly -- at least open the possibility that we can disagree with you.

MS. MAHONEY: Well, Your Honor, the -- there has to be evidence in the record that would support the conclusion that it's a quota. And *what this Court has said that means is a fixed number -- that is sufficiently rigid that no matter what the qualifications of the applicant pool, the law school is going to adhere to a fixed minimum* and I think it's important to say what the judge found on this issue, at 230A of the position of appendix, the judge says in conclusion, the Court finds that the law school wants, 10 to 17 percent of each class to consist of African Americans, Native Americans and Hispanics. Wants. That's an aspiration.

 * A clear legal definition of "quota." Is it an accurate statement of "what this Court has said"?

CHIEF JUSTICE REHNQUIST: It says `once' or `wants,' Maureen?

 Did Mahoney say 'wuhnts'? If this were a male attorney, would Rehnquist playfully correct his pronunciation and address him by his first name?

MS. MAHONEY: Wants. Wants.


MS. MAHONEY: Wants, Your Honor. That's an aspiration, that is not a fixed minimum. He made no findings that there was a fixed minimum.

JUSTICE GINSBURG: Is there in fact a difference between the Michigan plan and the Harvard plan? The Harvard plan is touted in Bakke. It seems to me, that they were pretty close and is there any suggestion that Michigan is looking for critical mass that Harvard didn't look for?

MS. MAHONEY: Absolutely not, Your Honor. The evidence indicates that the Harvard plan works in exactly the way the Michigan plan does. In fact, Harvard's brief in this case indicates that under their plan over the last four years, they enrolled eight to 9 percent African Americans which is a stable range. In the last four years of the record evidence here, the University of Michigan Law School enrolled 7 to 9 percent African Americans.

JUSTICE SCALIA: Excuse me. Did Bakke hold that the Harvard plan was constitutional?

MS. MAHONEY: Yes, Your Honor.

JUSTICE SCALIA: If adopted by -- by a State institution?

MS. MAHONEY: Yes, Your Honor.

JUSTICE SCALIA: It held that it was constitutional?

MS. MAHONEY: Yes. What we --

JUSTICE SCALIA: We didn't even -- we didn't even have the details of the Harvard plan before us.

MS. MAHONEY: Your Honor, in fact, the Court upheld -- or Justice Powell appended the Harvard plan to his opinion in this case and *there were five votes that the reason that the mandate of the California Supreme Court should be reversed was because there was an effective alternative for -- for enrolling minorities and that effective alternative was a plan like the Harvard plan.* And the -- the dissenting –


* There were five votes for the following statement by Powell: "the State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin." (Regents v. Bakke, 428 U.S. at 320) (There was no attempt to define "properly devised" and "competitive consideration.")

The four Justices who concurred added this footnote to their separate opinion: "We also agree with Mr. Justice POWELL that a plan like the 'Harvard Plan' . . . is constitutional under our approach, at least so long as the use of race to achieve an integrated student body is necessitated by the lingering effects of past discrimination." (Id. at 325)

JUSTICE SCALIA: Did -- did the Court know what -- what social scientists have later pointed out and many people knew before it that when the Harvard plan was originally adopted, its purpose was to achieve diversity by reducing the number of Jewish students from New York that were -- that were -- that were getting into Harvard on the basis of merit alone?

MS. MAHONEY: Your Honor, I don't think that was --

JUSTICE SCALIA: Did that come up in the course of the case?

MS. MAHONEY: Your Honor, I don't think that's the purpose of the Harvard plan that was attached.

JUSTICE SCALIA: Not today, I'm sure. But -- but -- but that was its origin.

MS. MAHONEY: Your Honor, there is -- there is certainly a major difference between an educational policy that is motivated by an intent to exclude people based on racial animus and one like the Law School's policy and the Harvard plan, which is designed to include students of all races, so that the education of all students will be enriched as a result.

  So it is "racial discrimination" when the unequal treatment based on race excludes people one dislikes, but not "racial discrimination" when the unequal treatment based on race includes people one likes, for the general good? This is not a standard definition of "racial discrimination," but it is a convenient one for the proponents of affirmative action.

JUSTICE SCALIA: But not too many of any race?

MS. MAHONEY: Well, Your Honor --

JUSTICE SCALIA: Or not too many of any religion, I assume?

MS. MAHONEY: Your Honor it is not a question of not too many. It's that the law school has attempted *to take race into account in a very modest, limited fashion,* no more than necessary to achieve the goal of trying to have sufficient numbers of minorities that there can be an excellent educational experience for everyone.

  * If treating people unequally based on their race is wrong, doing so "in a very modest, limited fashion" does not make it right. Nor is the Law School's use of race "very modest." The rates of admission for students with similar college grades and LSAT scores were commonly ten and twenty times as large for favored minority as for other applicants.

JUSTICE SCALIA: But -- but without a quota? Just sufficient numbers, but that's not a quota?

MS. MAHONEY: Your Honor it is not a quota.

JUSTICE SCALIA: When you say sufficient numbers, you're -- I mean that suggests to me that there is -- there is some minimum. Now, you don't name it. But there has to be some minimum. But you say there isn't a minimum?

MS. MAHONEY: Your Honor there isn't a minimum.

JUSTICE SCALIA: Well, then you have to eliminate the word sufficient.

MS. MAHONEY: Your Honor, it -- it can be related to numbers without being a quota. In fact, the Department of Education after Bakke came out, issued a policy interpretation at 44 Federal register 58510 which specifically authorizes schools to establish and pursue numerical goals, end quote, as long as they don't set aside a fixed number of places or make race the sole criterion for eligibility. That was the Department of Education's interpretation.

CHIEF JUSTICE REHNQUIST: Certainly they don't interpret the Constitution.

MS. MAHONEY: No, they don't Your Honor, but *that is what Bakke held.* That was -- what was the -- what was at issue in that case, that that was the difference between the program that UC C Davis had used and the program that was at issue in the Harvard plan.

  * The relevant portion of "what Bakke held" is available in my next-to-last comment above. It contains nothing authorizing schools "to establish and pursue numerical goals."

JUSTICE SOUTER: Is it fair to say that the -- what the -- what -- what Justice Powell and the five who agreed or the four who agreed on the Harvard plan were getting at was that there is a permissible zone between a purely token number and a quota or a set aside and you can shoot for something in that zone? Is that a fair --

MS. MAHONEY: Absolutely Your Honor. What Justice Powell's opinion says when paraphrasing the Harvard plan is that there needs to be an awareness of the necessity for more than token numbers. And that's because the educational benefits of diversity can't be achieved.

JUSTICE KENNEDY: It's hard to see that that's -- that's true here, when every day the admission staff looks to see what the numbers are based on race?

MS. MAHONEY: Your Honor, that's not correct. The -- there is a report which is called the daily. But it is not looked at everyday. The evidence was clear that it is simply something that can be printed out.

JUSTICE KENNEDY: You just have a daily report that they look at once a week?

MS. MAHONEY: Your Honor, the reason it's called a daily is that it is a running database that allows for the report to be printed at any time. And -- and the evidence indicated that --

JUSTICE KENNEDY: To show how well they're doing in getting the so-called critical mass which is just a SPHOPL for a number?

MS. MAHONEY: Your Honor, the details actually track a whole variety of admissions information including deposits, they're trying to see how they're doing in terms of whether --

CHIEF JUSTICE REHNQUIST: They -- they don't track, as I understand it, the other pluses that the University talks about?

MS. MAHONEY: Well, they track -- they track residency, they track gender, they don't track, for instance, socioeconomic status which is a plus or, in fact, the evidence is uncontradicted the University takes any racial background, any ethnic background, any unusual characteristic that would add to the diversity of the class into account, but it doesn't find a need to track that, because of the nature of the applicant pool.

JUSTICE SCALIA: Is 2 percent a critical mass, Ms. Mahoney?

MS. MAHONEY: I don't think so, Your Honor.

JUSTICE SCALIA: O.K. 4 percent?

MS. MAHONEY: No, Your Honor, what --

JUSTICE SCALIA: You have to pick some number, don't you?

MS. MAHONEY: Well, actually what --

JUSTICE SCALIA: Like 8, is 8 percent?

MS. MAHONEY: Now, Your Honor.

JUSTICE SCALIA: Now, does it stop being a quota because it's somewhere between 8 and 12, but it is a quota if it's 10? I don't understand that reasoning. Once you use the term critical mass and -- you're -- you're into quota land.

MS. MAHONEY: Your Honor, what a quota is under this Court's cases is a fixed number. And there is no fixed number here. The testimony was that it depends on the characteristics of the applicant pool.

 * If Scalia believes that the Court has not sanctioned the definition of "quota" that Mahoney is using, why not say so? Is his dispute on this point with her or with the Court's previous language? Is such language dicta or precedent?

JUSTICE SCALIA: As long as you say between 8 and 12, you're O.K.? Is that it? If you said 10 it's bad but between 8 and 12 it's okay, because it's not a fixed number? *Is that -- that's what you think the Constitution is?*

 * Should the constitutionality of race-based, unequal treatment by the State turn on the difference between "rigid" and "flexible" quotas, between "quota" and "critical mass," between not very modest and "very modest" use of race? Reductions in the amount of wrongful treatment do not make it right. Constitutional law can properly allow exceptions to the racial nondiscrimination rule for policies narrowly tailored to serve compelling public interests. When a compelling public interest is recognized, judgment is required as to the least harmful, most efficient means of serving that interest. But arguing whether policies use quotas does not help to determine whether interests are compelling or policies are narrowly tailored.

MS. MAHONEY: No, Your Honor, if it was a fixed range that said that it will be a minimum of 8 percent, come hell or high water, no matter what the qualifications of these applicants look like, no matter what it is that the majority applicants could contribute to the benefits of diversity, then certainly that would be a quota, but that is not what occurred here. And in fact the testimony was undisputed, that this was not intended to be a fixed goal.

JUSTICE O'CONNOR: Ms. Mahoney may I shift focus away from this to another point before you're finished, that I -- I am concerned about. In all programs which this Court has upheld in the area of -- you want to label it affirmative, there's been a fixed time period within which it would operate. You could see at the end -- an end to it, there is none in this, is there? How do we deal with that aspect?

MS. MAHONEY: What the policy says, of course, is that it will only take race into account as long as it is necessary in order to achieve the educational objectives. I don't think that this Court should conclude that this is permanent, because *there are two things that can happen that will make this come to an end.* The first is that the number of high-achieving minorities will continue to grow and that [the] law school will be able to enroll a sufficient number to have a critical mass or meaningful numbers with substantial presence without having to take race into account.

 * Are these "two things" likely to happen? Here are some reasons for scepticism: The considerable increase in the number of high-achieving Asian, Eastern European and Arab minorities who now contribute to campus racial and ethnic diversity has not reduced the pressure for racially preferential admissions for blacks and Hispanics. The tremendous immigration since Bakke of poorly educated Latinos may have decreased the proportion of academic high achievers among Latino-Americans. The distribution of empirically measured verbal and mathematical reasoning skills among American blacks remains stubbornly much lower than for American whites. If we came closer to the goal of "meaningful numbers," the pressure for changing the goal to "proportional representation" would be difficult (impossible?) to resist.

The second thing that can happen, Your Honor, is that we could reach a point in our society where the experience of being a minority did not make such a fundamental difference in their lives, where race didn't matter so much that it's truly salient to the law school's educational mission. While I can't say when that will happen, we certainly know that as a nation, *we have made tremendous progress in overcoming intolerance.* And we certainly should expect that that will occur with respect to minorities.

 * There has certainly been "tremendous progress" in persuading Americans that racial discrimination against nonwhites is bad, but also considerable success in persuading Americans that racial discrimination in favor of nonwhites is good, even noble.

JUSTICE O'CONNOR: We approved any other affirmative program with such a vague distant termination base?

MS. MAHONEY: Well, in Bakke itself, Your Honor. In Bakke itself, there were five votes to allow the University of California Davis to use a plan modeled on the Harvard plan. It's been in effect for about 25 years. It has reaped extraordinary benefits for this country's educational system. And I think it's far too soon for this Court to conclude that –

CHIEF JUSTICE REHNQUIST: Can -- can we tell from the statistics whether things have been achieved say, more and more minorities are getting in on their own to the University of Michigan Law School without the quotas?


MS. MAHONEY: Yes, they're not quotas, Your Honor.


MS. MAHONEY: Aspirations, but we do know Your Honor that there has been improvement, in fact, Justice Powell cited to a study, it was done by Manning, it's in footnote 50 of Justice Powell's opinion and it gives the number of minorities who had achieved a 165 and a 3.5 on the LSAT.

CHIEF JUSTICE REHNQUIST: How about say the last 15 years, at the University of Michigan, which wasn't under consideration in Justice Powell's opinion?

MS. MAHONEY: I think the answer would be that we do know that in 1964 when there was a race-blind policy, there were no blacks admitted, and under a race-blind policy today, probably six blacks would be admitted without consideration of race. So there has not been enough progress to allow for meaningful numbers at this point, but there has been progress.

JUSTICE O'CONNOR: Do we know what's happened in the law schools in California since it was determined by State law [to end] affirmative [action]?

MS. MAHONEY: Yes, Your Honor. We know that for the first -- I think, 4 or 5 years, *Boalt* only enrolled about -- between I think zero and 7 African American students. They do better on Hispanics because of the demographics of that State, where it's virtually 50 percent Hispanic at the college-age level. But what we have learned is that in the -- they changed their program 2 years ago and this fall they succeeded in enrolling 14 African-American students, but what we know from talking to the law school admissions counsel with Boalt's permission is that the African-Americans who were enrolled under that program have a 9 point LSAT score gap from the whites who have been enrolled, so the same gap –

 * Short for Boalt Hall, commonly used to designate the University of California Law School at Berkeley.

JUSTICE O'CONNOR: Well, there are other law schools in California, too, are there not?

MS. MAHONEY: Yes, UCLA, well, this is mainly Your Honor a problem for the highly selective schools because of the nature of the pool.

JUSTICE O'CONNOR: You have some good law schools, you have UCLA, you have USC?





MS. MAHONEY: UCLA -- UCLA had -- the class that's graduating this year, for instance, I believe had five blacks in it. So I believe last fall they did better and we have been told that that's because they were able to recruit some additional numbers of black students because of a special critical race studies program they're offering but that's not a solution to the pool problem, Your Honor. The pool problem is that if we look at *the ranges of LSATs where the University of Michigan takes its students,* there are literally about 30 in the entire country, three or four per top 10 schools. So some kind of, you know, race-conscious recruiting that schools are using doesn't solve that problem.

 * A clear picture of "the ranges of LSATs" and of the undergraduate GPAs of the Law School's accepted applicants in 1995 is available here.

And if I could go back to Boalt for just another minute, because that is something that the petitioners raised in their reply brief, is that given that *we know that they have exactly the same 9-point LSAT gap that Michigan gets under its program, there is no reason to think that what they are doing would satisfy the petitioner's conception of the Equal Protection Clause.*

 * Mahoney implies that Berkeley, despite the fact that it operates under California law banning racial preference, grants as much racial preference to black applicants as Michigan does.

JUSTICE KENNEDY: That's difficult when it's not in the record.

I do have one more question on this quota point. I don't think the answer that you gave to Justice Scalia was in -- in all respects complete. You said well, if -- if there were a program that no matter what you used a somewhat different phrase, no matter what, there would be people taken regardless of qualifications -- that would be a quota. Suppose the pool is large enough so that you can find minorities to fill your 15 percent aspiration. Why isn't that a quota even if they're qualified?

MS. MAHONEY: Because, Your Honor I think –

JUSTICE KENNEDY: It seems to me that that was a -- a really a false -- or an improper qualification that you gave to your answer.

MS. MAHONEY: I don't think so, Your Honor. Because I think -- certainly if it's a fixed number that you're going to take no matter what, then that is a quota, but I think the difference between a quota and a goal is the flexibility. And what this Court, for instance, said in Johnson when talking about, they authorized the use of a goal and they said that the line between a goal and a quota is in fact whether or not you have to automatically and blindly promote people in order to meet the goal or whether it is a factor that is taken into account and that's exactly what occurs here.

CHIEF JUSTICE REHNQUIST: How does the University determine from one year to the next, you say some years it'll come out 8 percent, some year 9 percent, do they make a conscious decision?

MS. MAHONEY: No, Your Honor, the evidence shows –


MS. MAHONEY: No, it's not tossing a coin, but it is not a fixed number. What they do is, they look -- it's responsive to the applicant pool. They look at the applicants, they are looking at a variety of factors on a holistic basis and they find the applicants that they think are going to bring the most in to the law school class, but it is not measured against a specific numerical target. And the district court did not find otherwise. It is simply looking at that pool and what Michigan is –

JUSTICE SCALIA: Ms. Mahoney, do you know any quota program that would take somebody to fill the quota no matter what? All the quota programs I know start off by saying we will only take qualified applicants, but then setting the level of qualified low enough that they can fill the quota. I don't know any program that said no matter what we're going to fill this quota.

MS. MAHONEY: Your Honor –

JUSTICE SCALIA: To establish that kind of a standard for quota is -- is to -- is to just eliminate the -- the whole purpose of -- of that aspect of our law.

MS. MAHONEY: Actually, Your Honor, the way that in Bakke it worked, it wasn't the situation that they would take someone no matter what, but they did have a rule, that you could not be considered for the spaces that had been set aside if you were white. And so it works in a very different way, Your Honor. There -- Bakke applied, there were four spaces available in the special admissions program, but he couldn't be considered for them, because of his race. That doesn't happen at the University of Michigan. When someone applies, whether they're white, it doesn't matter how many minorities have been accepted or rejected. They are considered on their merits just like every other applicant. That's the defining difference between what happened in the UC Davis program.

JUSTICE SCALIA: But they aren't just like every other applicant. Some applicants are given a preference because of their race.

MS. MAHONEY: Your Honor, *they are given extra weight in the process, because they have something unusual and important to bring to the class.* That's what every -- that's the way every applicant is considered and –

 * She thinks racial preference justified, but refuses to admit that what happens is preference or that it is racially based. A case of see no evil, speak no evil. Does this fool anyone? Herself?

JUSTICE SCALIA: Which you say automatically follows from race.

MS. MAHONEY: Your Honor, they also write essays about diversity. Every applicant is given the chance to write an essay about diversity. The law school does –

JUSTICE GINSBURG: Ms. Mahoney, how does the Michigan plan differ, or the Harvard plan for that matter, from what was familiar, that is, highly selective schools will reject a certain number of people, take a number of people as automatic acceptance, and in the large middle will say, well, we'll -- we'll take people because they're different, because they play the bassoon, because they belong to a minority race? Because in the days that when I went to law school, they are female, because we want the class to be diverse and so they used race, they used sex, they used –

MS. MAHONEY: That's exactly what the University of Michigan Law School plan does. It looks at all potential contributions to diversity. And what the evidence shows in this case is that it is common for white applicants to be admitted with lower grades and test scores than even minorities who are rejected because –

JUSTICE SCALIA: Does the Constitution prohibit discrimination against -- against oboe players as opposed to flute players?

MS. MAHONEY: No, Your Honor.

JUSTICE SCALIA: Does it prohibit discrimination on the basis of alumni status?

MS. MAHONEY: No, Your Honor.

JUSTICE SCALIA: But it does prohibit discrimination on the basis of race?

MS. MAHONEY: But the question is whether this is prohibited discrimination. *And the answer that we would ask this Court to give is that a minority applicant brings something special. They are not similarly situated to the white applicant who has the exact same grades and test scores.*


* Mahoney's argument here is that the black or Hispanic applicant is and ought to be preferred, not because of race, but because he or she "brings something special," e.g., the experience of being nonwhite in a predominantly white country, which has often discriminated against nonwhites. This rationale would explain her refusal to admit that the Law School practices discrimination or preference based on race. She invites the Court to decide that, since the difference in treatment charged in this case is not based on race, it is not forbidden by the Constitution, or by any civil rights laws. She may not expect her invitation to be accepted, and spends much more time on the fall-back position that, even assuming the different treatment is race-based, it falls within the limits that a Bakke majority approved.

Should the Court accept her invitation? Should it hold that the Law School's discrimination is based not on race, but on a circumstance associated with race, which can be turned to educational use?

If the school wishes to make certain experiences a qualification for admission, it should seek them directly, in an approach free of racial assumptions and racial favoritism. Many black and Hispanic applicants, having grown up in places dominated by their own group, or in well-off families, have not suffered much racial or ethnic discrimination. Many white and Asian applicants have been subjected to racial discrimination in the practices and ideology of schools they have previously applied to or attended.

Let the admissions form ask applicants not for their race or ethnicity, but concerning the experiences that might be useful. Have you alone and/or with members of your group (political, religious, racial, ethnic, social, regional, other) been discriminated against? Tell us about it. Have you alone and/or with your group discriminated against members of another group? Have you and/or your group been in conflict with members of another group? Managed to make common cause with members of another group? Such questions, well formulated, may discover students who have much to contribute to fellow students concerning the realities and possibilities of group relations in the United States. Will the result be more of race X and less of race Y in the student body? One cannot tell, and should not care.

JUSTICE STEVENS: Ms. Mahoney, may I ask you a question that is really prompted by Justice O'Connor's question about the terminal point in all of this point and *we're all hoping some day race will be a totally irrelevant factor in all decisions,* but one of your arguments on the other side of your case is that there's actually -- these programs actually generate racial hostility particularly on the part of the excluded members. And that in turn delays the ultimate day we are all hoping for. What is your comment about that?

 * In Bakke and Fullilove, Stevens argued powerfully for racial nondiscrimination in state-supported universities and in government contracting. But in the last two decades his votes have helped to strengthen the racial preference regime. His hope expressed here that "some day race will be a totally irrelevant factor in all decisions" sounds too much like the weak yearning for abstinence of a confirmed alcoholic.

MS. MAHONEY: The record certainly does not support that inference under this program. And the reason is this: The program -- one of the ways to prevent that from happening is to have a narrowly tailored program to have very limited consideration of race and not to, for instance, have too great a disparity between the qualifications of the white students who are admitted and the minority students who are admitted under the program. Here it's actually quite limited. In fact, you know, the vast -- the most -- the most of the minorities who are admitted are in the top 16 percent of all LSAT takers in the country. So we're talking about a really exceptional group of students. By keeping the relative qualifications fairly close, like that, you really minimize the potential for any kind of stigmatizing or hostility, that sort of thing.

And what the record shows is that in the Orfield study which was done of Harvard and University of Michigan's students, it's in the record at Exhibit 167, that *there is overwhelming support by the students at Harvard and Michigan Law Schools for maintaining the diversity program, because they regard it as so positive.* That's –

 * Polls of students generally show strong majority votes in favor of "diversity," but not in favor of racial preference in university admissions. See, e.g., the poll results tabulated in the National Association of Scholars brief supporting Grutter, at p 7. How did the Orfield survey frame the question? Did it ask whether students favored racial preference in admissions, or simply whether they favored racial diversity?

JUSTICE SCALIA: Sure, they're in already.

MS. MAHONEY: Your Honor that's for the –

JUSTICE SCALIA: The people you want to talk to are the high school seniors who have seen -- who have seen people visibly less qualified than they are get into prestigious institutions where they are rejected. If you think that is not creating resentment, you are just wrong.

MS. MAHONEY: Well, Your Honor, certainly the minorities who have been admitted under the program are not feeling stigmatized by it. If they continue to support the program in the ways that they do. In addition, the whites who are seeing their performance in the class and who are confirming that they find it highly beneficial to have the -- the chance to share the experiences of the minority students when they are learning about the law, has to be given substantial weight in considering whether this is somehow stigmatizing or perpetuating historic stereotypes, which is really the test that this Court used in VMI to determine whether or not something should really be condemned because of its potential to stigmatize.

JUSTICE BREYER: If Justice Powell's opinion in Bakke can be viewed as, yes, you can use race as a plus factor, where the program is not against anyone, but you cannot go too far, and it says individualized consideration is necessary there, what in your opinion would be going too far, other than quotas? How would this be maintained within limits?

MS. MAHONEY: I think there are really three things other than a quota to look for. The first is whether there is flexible consideration of the diversity contributions of every potential student, which Michigan's program clearly satisfies; whether the minorities who are being admitted are well qualified, because you don't want to have a situation where they can't contribute to the class and can't succeed; and the third is the degree of the burden on the rejected applicants, that's certainly relevant under any narrow tier learning program. And here, *what the record tells us is that 95 percent of all the admissions decisions that are made each year are not affected by the consideration of race. That the chance that -- there are about 2,500 students who are rejected each year. Probably only 80 of them would have been -- would have gotten an offer of admission from Michigan under a race-blind system.*

 * At the end of Part I of Judge Friedman's district-court opinion in this case, he cites Law School trial testimony on this point. In the year 2000, 35% (170) of the black, Latino and Native American applicants," and 40% of other applicants (white, Asian, ethnicity unknown, foreign) were admitted. The School estimated that if race were not considered, the first group would fall to 10% (46), while the second group would rise to 44%. This implies that 124, about 4%, of the racially non-favored applicants in 2000 "would have gotten an offer of admission from Michigan under a race-blind system."

That is a very small and diffuse burden. It's not one to be minimized. It's certainly something that the Court has to pay attention to, but this is extremely limited in scope and relative to the benefits to students of all races and to our Nation. It has to be weighed in the balance and this Court certainly should conclude that the interests that are being served, the legitimate interests that are being served are sufficiently compelling to allow this kind of limited consideration of race.

JUSTICE GINSBURG: Do we know what would be the increase of the named Plaintiffs, the increase in their chance of admission, were there no affirmative programs?

MS. MAHONEY: I don't know what the increase for the -- for Barbara Grutter would have been, for instance, we do know that across the class, it would have been approximately 5 percent. One might say that that could vary, you know, by individual. The record evidence would indicate, however, that Barbara Grutter would not have been admitted under a race-blind program, although that issue has not been litigated to conclusion.

JUSTICE SCALIA: I don't know any other area where we -- where we decide the case by saying well, *there are very few people who are being treated unconstitutionally.* I mean, if this indeed is an unconstitutional treatment of -- of this woman, because of her race, surely, it doesn't make any difference whether she is one of very few who have been treated unconstitutionally.

  * Scalia evidently has in mind the comparatively small number of applicants rejected due to racial preference. But these are not the only persons subjected to racial discrimination by this admissions procedure. In highly selective schools, there are many applicants, at the top or bottom of the heap, who would be accepted or rejected whether race were considered or not. But for all those whose acceptance or rejection is uncertain, race is on the scale. As it turned out, many blacks and Hispanics were rejected by the Law School, despite a racial policy that favored them, and many whites and Asians were accepted, despite a racial policy that disfavored them. Also, a great many whites and Asians, of whom Grutter may have been one, would have been rejected had there been no racial policy. Nevertheless, all the applicants, favored or disfavored, whose admission was uncertain were weighed by a process that treated them unequally based on their race. If the process is unconstitutional, it is not "very few people who are being treated unconstitutionally."

CHIEF JUSTICE REHNQUIST: I think you can regard that as a statement rather than a question.

MS. MAHONEY: Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: Mr. Kolbo, you have two minutes remaining.


MR. KOLBO: Thank you, if I may follow-up on the last question. Counsel's answer to the last couple of questions, I think, really crystallizes the difference between their position and ours. The University of Michigan sees this as a question of group rights. There are rights on the part of minorities. And there are rights -- there are rights on the part of whites and Asians and other -- other groups.

We see it very differently. The Constitution protects the rights of individuals, not racial groups. The Bakke case opening up 16 spaces in the class when that system was struck down meant that about 2,500 students, 2,500 to 3,000 students who had previously been discriminated against now had an opportunity to compete for those seats. So it seems to me the question is not answered by how many have been discriminated against. The question is whether in fact discrimination is occurring against the individual and it certainly is in this particular case.

Counsel was asked some questions about the open-ended nature of the policy at issue here. And I think it's very critical that we understand that if the interests that they are asserting here to be compelling is upheld as compelling by this Court, we have in fact the first indefinite, ongoing, unlimited compelling interest. The Court previously has confined its analysis to remedying -- remedying identified discrimination. A remedy based on societal discrimination or a role-model theory for example in Wygant. A couple of the reasons that the Court struck down those rationales was because they were so unlimited, so amorphous, indefinite with respect to time. That certainly is the case with the interest that is being urged here today.

And it seems to me that that is -- it is very clear in the University's argument that what they've done -- and they didn't argue so much this in the lower court, but they made it very clear that their justification for the preferences is based in effect on remedying societal discrimination. Their argument and their briefs and in this Court has been that when the day comes, someday and maybe it will come someday, we hope that it will, that someday that we will be able to stop using race for these purposes. And the opinion that accepted that rationale it seems to me would be a dramatic step backward from this Court's precedents which rejected the notion that something as amorphous as societal discrimination would be sufficient.

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


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