Grutter v. BollingerU.S. Supreme Court
General Olson, we'll hear from you.
ORAL ARGUMENT OF THEODORE B. OLSON ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONERS
GENERAL OLSON: Mr. Chief Justice, and may it please the Court:
The University of Michigan admissions program has created a separate path and a separate door for preferred minorities. For those groups, if they meet basic if they meet basic qualifications, their path is always clear and their door is always open. Nonpreferred racial groups face rigorous competition to get through the other door. The University admits that race is such an overarching factor in its admissions process that eventually every qualified underrepresented minority applicant will be admitted. The 20 point bonus, which is one full grade point, nearly twice the benefit of a perfect SAT score, and six times better than an outstanding essay, the -- that bonus is actually unnecessary with the way the plan actually works, because every qualified candidate who gets the bonus gets into the University. It might just as well be an admissions ticket.
The University acknowledges that its pre- admissions program used separate grids, separate qualifications, separate standards and protected seats. They acknowledge that this system was -- which was held unconstitutional and was not challenged, yet they stipulated that the only changes that they made from that system affected only the mechanics, not the substance of how race and ethnicity were considered in the admissions process.
QUESTION: First the changes were sufficient to convince the district judge that it was on the other side of the constitutional line?
GENERAL OLSON: Notwithstanding the fact that the -- the University -- we -- we respectfully disagree with that conclusion, because the -- the University itself admitted that it only changed the mechanics. It intended to produce the same --
QUESTION: Yes, but isn't -- isn't -- I mean, mechanics is another word for tailoring. And they're saying we have tailored it differently. Our objectives are the same. We may be reaching those objectives in roughly the -- the same proportions, but the argument is an argument about tailoring and we've changed the tailoring.
GENERAL OLSON: We submit Justice Souter, that the changes which they referred to as mechanics were cosmetics, that ultimately, the system was intended to, and they acknowledge, to produce the same outcome as the prior system.
QUESTION: Yes. The stipulation is that it did not change the substance of how race and ethnicity were considered.
GENERAL OLSON: Correct, Justice Kennedy. And what the Court only needs to look at the operation of the system. That 20 point bonus means that if you pass the minimum qualification standards at the University of Michigan, you were admitted.
Everyone else just like in the Davis program, had to compete -- people that were not in the preferred races, who were not on the preferred class had to compete with one another.
QUESTION: It was the same 20 points given -- socioeconomic status also had 20 points?
GENERAL OLSON: Yes, Justice Ginsburg.
QUESTION: And atlethics, too, I think?
GENERAL OLSON: Yes, and you couldn't get both.
But if you had -- whether -- whatever your background, whether you were an athlete or not, you got the 20 points solely because of your race. There were other systems, that the Constitution doesn't implicate.
QUESTION: I thought you got only one 20?
GENERAL OLSON: That's correct.
QUESTION: So if you were an athlete you wouldn't get race?
GENERAL OLSON: That's correct. But if you -- irrespective of those other factors, if you didn't get the -- the 20 point bonus for being an athlete or -- for socioeconomic conditions, the only thing that was required was to be a member of the preferred race. Like the other program that we're hearing today, the same State, the state Board of Regents, this plan violates every standard that this Court has set for the examination of racial preferences.
It is a thinly disguised quota because there's only one path, a segment -- Justice O'Connor put it this way in Croson -- a segment of the class reserved exclusively for certain minority groups. It isn't tied to a particular number. It's a segment of the class reserved on the basis of race.
It is -- it is based upon the stigmatizing notion that if you are a certain race, you think a certain way or if you're a certain race, you have certain experience that's are common.
QUESTION: What do you say to the argument that number one, it's not stigmatizing, because the box study certainly didn't show that it was, and number two, the objective is not to show that there is a correlation between race and one point of view. The objective is to show students what the correlation or no correlation is between races and points of view. And it seems to me that the Michigan plan is equally consistent with the latter interpretation as with the former.
GENERAL OLSON: What we're saying is that if you assume that because you are white or you are red or you are brown or you are black, you must have certain experiences and you must have certain viewpoints.
QUESTION: The argument is that you need to have enough of them to demonstrate that the point of view does not always fit just one person.
GENERAL OLSON: Well, but Justice Stevens --
QUESTION: And that was a finding I think?
GENERAL OLSON: -- that's a self-contradictory rational that they've come up. They say first of all you have these characteristics because you're black but we must admit enough of you into the class to prove to the other students that -- that black isn't the reason you're --
QUESTION: No that is not -- the argument is basically that, look, people who have grown up in America and are black, regardless of race, no, not regardless of race, regardless of socioeconomic background have probably, though not certainly, shared the experience of being subject to certain stereotypical reactions from people throughout their lives. Now, that may have led them to react one way, or another way or not react at all.
And indeed many of the students in our class will have stereotypical reactions. And it's good for them as well as for everyone else to rid themselves of those reactions. And we want people in this school of all kinds who are black, because that will be helpful education. Now, that's their argument, I think, in that respect, not the argument that all black people are poor, not the argument that all black people have been discriminated against, not the argument that all black people share a point of view. As I read it, that's their argument. And so you're reply to that argument is what?
GENERAL OLSON: Well, their argument, A, takes several forms, at one point it's that, at one point, it's the need to get more people elite -- of different backgrounds, it's a -- but what this Court has said that racial preferences, racial stereotyping, which it is, is stigmatizing, it's divisive, it's damaging to the fabric of society, it's damaging to the goal ultimately to eliminate the problems that racial discrimination and racial differences have created.
QUESTION: General -- we're part of a world, and this problem is a global problem. Other countries operating under the same equality norm have confronted it. Our neighbor to the north, Canada, has, the European Union, South Africa, and they have all approved this kind of, they call it positive discrimination. Do we -- they have rejected what you recited as the ills that follow from this. Should we shut that from our view at all or should we consider what judges in other places have said on this subject?
GENERAL OLSON: I submit, Justice Ginsburg that none of those countries has our history, none of those countries has the Fourteenth Amendment, none of those histories has the history of the statements by this Court which has examined the question over and over again that the ultimate damage that is done by racial preferences is such that if there ever is a situation in which such factors must be used that they must be -- race neutral means must be used to accomplish those objective, narrow tailoring must be applied, and this -- this -- these programs fail all of those tests.
QUESTION: General Olson, do you know whether any of those countries that Justice Ginsburg referred to that have gone down the road of racial preferences, racial entitlements, have ever gotten rid of racial preferences or racial entitlements?
GENERAL OLSON: There --
QUESTION: Has it been the road ultimately to a color blind society or has it been the road to a society that has percentage entitlements for the various races?
GENERAL OLSON: Sadly, I believe that that is correct, Justice Scalia, and let me conclude by saying that the Michigan Law School and the University of Michigan ultimately must make a choice. It may maintain its elitist, as it refers to it, selection process without regard to race, or it may achieve the racial diversity it seeks with race neutral compromises in its admission standards.
But the one thing that it may not do is compromise its admission standards or change its admission requirements for one race and not another. That is forbidden by the Equal Protection Clause of the Constitution.
QUESTION: Is it also forbidden for the United States military academy?
GENERAL OLSON: It may well be Justice Stevens. We're not defending the specifics of those programs, but we have not examined them individually. We -- we believe that the ultimate solution to the problem that race has created -- that difference in race has created in this country has got to be according to what this Court has said, the most neutral race -- neutral means possible.
QUESTION: Thank you General Olson.
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.