Grutter v. BollingerU.S. Supreme Court
QUESTION: Would you allow recruiting targeted at minorities?
MR. KOLBO: I don't see the constitutional objection with that, Your Honor.
QUESTION: 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 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.
And many 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.
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.
MR. KOLBO: Because very simply, Justice Breyer, the Constitution provides the right of -- 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 principal line it seems to me can be drawn between those two things.
QUESTION: 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 in half league or he's not a -- he's not an alumnus or he's not any of the other things that fits within these other criteria? What is the difference there is?
MR. KOLBO: The difference is the Equal Protection Clause, Your Honor. It does not apply to alumni preferences in scholarships. It applies to race.
QUESTION: 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?
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.
QUESTION: 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.
QUESTION: These preparatory schools -- do you concede that they're only for minority students? I'm familiar with those preparatory schools, familiar or not?
MR. KOLBO: Certainly not --
QUESTION: 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 --
QUESTION: It isn't just for minorities.
MR. KOLBO: They're not, Your Honor. They are open to -- accessible to all.
QUESTION: 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.
QUESTION: 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, 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.
QUESTION: May I ask --
QUESTION: 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 --
QUESTION: 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.
QUESTION: No, it's not in my hypothetical.
MR. KOLBO: Mr. Chief Justice.
QUESTION: 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 tribemen, 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. QUESTION: 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.
This excerpted transcript of the oral arguments before the Supreme Court in Grutter v. Bollinger and Gratz v. Bollinger was recorded by the Alderson Reporting Co.