Grutter v. BollingerU.S. Supreme Court
QUESTION: 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 --
QUESTION: 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.
QUESTION: 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 --
QUESTION: Just toss a coin?
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 toto 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 --
QUESTION: 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 --
QUESTION: 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 my 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.
QUESTION: But they aren't just like every 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 --
QUESTION: 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 --
QUESTION: Ms. Mahoney, how does the Michigan plan differ or the Harvard plan, for that matter, from what was familiar, that is, highly selected 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 --
QUESTION: Does the Constitution prohibit distribution against -- against oboe players as opposed to flute players?
MS. MAHONEY: No, Your Honor.
QUESTION: Does it prohibit distribution on the basis of alumni status?
MS. MAHONEY: No, Your Honor.
QUESTION: But it does prohibit distribution 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.
QUESTION: 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?
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 two 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 --
QUESTION: Sure, they're in already.
MS. MAHONEY: Your Honor that's for the --
QUESTION: 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.
QUESTION: If Justice Powell's opinion in Bakke can be viewed as, yes, you can used 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 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 2500 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.
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.
QUESTION: Do we know what would be the increase of the named Plaintiffs, the increase in their chance of admission, were there no average tisk 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.
QUESTION: 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.
QUESTION: I think you can regard that as a statement rather than a question.
MS. MAHONEY: Thank you, Your Honor.
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.