Grutter v. BollingerU.S. Supreme Court
ORAL ARGUMENT OF MAUREEN MAHONEY
ON BEHALF OF THE RESPONDENTS
MS. MAHONEY: Mr. Chief Justice, and may it please the Court:
The Solicitor General acknowledges the 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.
QUESTION: 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 pastyears 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.
QUESTION: Ms. Mahoney, supposing that after our Bakke decision came down, whereas Cal. Davis 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 the -- 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 16 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 --
QUESTION: 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 a fixed 16 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 is 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 to2 over the course of eight years there have been enrollments that went from 44 to 73. It has been a very flexible program.
QUESTION: 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, considering 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 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.
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 --
QUESTION: If it claims it's a compelling State interest. If it's important enough to override the Constitution's prohibition of racial distribution, 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 --
QUESTION: No, no. No. The question is whether or not there is a compelling interest that allows race to be used.
MS. MAHONEY: That's correct, Your Honor.
QUESTION: 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. 15
The benefits are race neutral, Your Honor, and the burdens are really quite limited. What we're talking about here --
QUESTION: 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 prospectives, to the experiences of individuals from diverse backgrounds.
QUESTION: 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.
QUESTION: Is it beyond this Court's capacity to say that? It certainly at a minimum a might have had 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.
QUESTION: It says wants or wants Maureen?
MS. MAHONEY: Wants. Wants.
QUESTION: Wants. Okay.
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.
QUESTION: Is there in fact a difference between the Michigan plan and the Harvard plan that the Harvard plan is taunted in Bakke, it seems to me, that they were pretty close and is there any suggestion that her I am sure 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 topercent 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 topercent African Americans.
QUESTION: Excuse me. Did Bakke hold that the Harvard plan was constitutional?
MS. MAHONEY: Yes, Your Honor.
QUESTION: If adopted by -- by a State institution?
MS. MAHONEY: Yes, Your Honor.
QUESTION: It held that it was constitutional?
MS. MAHONEY: Yes.
What we --
QUESTION: 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 just Powell appended the Harvard plan to his 15 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 --
QUESTION: 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 unusual 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 --
QUESTION: Did that conform 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.
QUESTION: 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.
QUESTION: But not too many of any race?
MS. MAHONEY: Well, Your Honor --
QUESTION: 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 mod defendant 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.
QUESTION: But -- but without a quota? Just sufficient numbers, but that's not a quota?
MS. MAHONEY: Your Honor it is not a quota.
QUESTION: 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.
QUESTION: Well, then you have to eliminate the word sufficient.
MS. MAHONEY: Your Honor, it -- it can be 15 related to numbers without being a quota. In fact, the Department of Education in 1979 after Bakke came out, issued a policy interpretation at 44 Federal register 58510 which specifically says 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 criteriaen for eligibility. That was the Department of Education's interpretation.
QUESTION: Certainly they don't interpret the Constitution?
MS. MAHONEY: No, they don't Your Honor, but that is what Bakke held. That was -- that was the -- what was at issue in that case, that that was the difference between the program that U C Davis had used and the program that was at issue in the Harvard plan.
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.