Grutter v. BollingerU.S. Supreme Court
QUESTION: But in the criteria used by the admissions committee, did anyone put a percentage figure or a specific number --
MR. PAYTON: No.
QUESTION: -- beyond the concept you've got to get more than just token representation? MR. PAYTON: No. The answer is no. And --
QUESTION: Mr. Payton, do you know the origin of critical mass that is being spoken of here as though it were something that were invented? I know it goes back at least with respect to the enrollment of women in law school, the schools talked about we want to get a critical mass, so women will feel welcome because when they were one at a time curiosities they did have to do as you said defend -- they were representatives of their sex and if they failed, all women failed. Once they had a critical mass, it was no longer necessary, the woman was free to be who she was. But that term I certainly was familiar with that term used in that setting. It's -- it comes from sociology, doesn't it?
MR. PAYTON: It does, and I think you described it exactly as how it has come about with respect to diversity and critical mass. In the Harvard plan, in Justice Powell's discussion of the Harvard plan, he clearly acknowledges and -- because the plan acknowledges that you must have meaningful numbers and it means more than token numbers and there's clearly an acknowledgement that if you have too few numbers you get the dynamics of isolation that you just discussed.
QUESTION: In the law school context, there was testimony, I think from one of the admissions officers that said 5 percent is too few, percent might suffice. And he's talking in respect to what is a critical mass. Now, do people coalesce around numbers like that or is that just out of -- what do I do with that piece of testimony?
MR. PAYTON: I think that in all of this, you know, there's a false precision here that everybody wants, which is tell me exactly what this is, and I don't think it exactly works like that. You know, we have a lot of experience as, you know, an educational institution about what has happened on our campus and what has worked. The class that we've had, the entering classes that we've had over the last 4 years or so, have ranged from percent to percent, okay? Twelve percent to percent. I'm not saying it's a percent and I'm not saying it's that fixed range, but percent to percent is sort of how it is ranged and that has generated the representation in the small groups that is what is working to achieve some of these educational benefits that we're talking about. But it's not quite that precise as far as how all of this works.
QUESTION: Mr. Payton, let me ask Justice O'Connor's question, when does all of this come to an end?
MR. PAYTON: I think that we all certainly expect it to come to an end. I think we're all quite surprised if we looked back at Bakke, in , I think all of us would be quite surprised from that vantage point to realize that today in Michigan students live in such segregated circumstances growing up, it's really quite unbelievable. We could not have foreseen that. I think people thought that we were coming together in a way and that hasn't occurred. That's created some educational challenges and opportunities. The test score gap, I think is narrowing -- we put that in our brief. I think we're all quite optimistic about how this is going to progress. Our brief, I think we're all quite optimistic about how this is going to progress, there is progress. I think the pool is increasing. But I can't give you how long is it going to last. I think we're all quite confident that it's only going to last for X number of finite years, I just can't answer with any precision that question either.
QUESTION: Suppose the Court were to say that the 20-point system and the law school system looked just too much like a quota and that quotas are impermissible? 20 As of that point, is it our burden to tell you what other systems to use or is it your burden to come up with some other system, say, more individualized assessment in order to attain some of the goals you wish to attain?
MR. PAYTON: I guess I'm not sure what the more individualized assessment would be here. I'm not saying that obviously there are things that could be done differently. We've done things differently. The two schools do things quite differently. But I think we're both trying to achieve the critical mass, that I think there's no dispute at all from anyone that the critical mass is essential to get the educational benefits that we're talking about. If this goal is a compelling interest, then critical mass is essential to its attainment, given the small pool size that we're talking about.
Can it be crafted in another way? Obviously, from the amicus briefs, there are a lot of schools that do it in different ways. We're doing it in a very individualized way that in fact does allow students to compete. Every student is evaluated on the same criteria. You know, head to head. We do take race into account in the way that you've heard described. But I'm not sure that lacks the individuality that you would be striving for. This is, you know, an enormously important case.
When Justice Powell said in Bakke that it's not too much to say that the Nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this nation of many peoples, I think that statement was absolutely correct then. I think it is, you know, it has never been truer than it is today. This is of enormous importance and correct, not just to the University of Michigan, I'd say to all of higher education and I think to our country as a whole to be able to do things that bring us together, that bring us understanding, that result in tolerance and, I'd say, make us the -- more -- closer to the day that we all look forward to when, in fact, we are beyond some of these problems that we've been discussing rather intensely here today.
QUESTION: Mr. Payton, do you think that your admissions standards overall at least provide some headwind to the efforts that you're taking about? MR. PAYTON: Yes, I do. I think they do in all sorts of ways. They are certainly producing black students, white students, Hispanic students, Native American students who go out into our communities and change their communities.
QUESTION: You may have misunderstood me. I mean the -- Ms. Mahoney said earlier that the problem of law school admissions, in response to Justice O'Connor, that it was for the elite schools, it was more a problem at the elite schools, when she was talking about Boalt Hall, for example, you meant -- you suggested or alluded to in your argument today that, you know, you don't want to choose between being an elite school and the whole diversity issue. It -- would it be easier to accomplish the latter if the former were adjusted, that is the overall admissions standard?
MR. PAYTON: I think that --
QUESTION: Now, I know you don't want to make the choice, but will you at least acknowledge that there is a tension?
MR. PAYTON: I think, you know, some of our other schools, the nonselective schools, actually some can end up with completely undiverse populations as well; that the fact that a school does not have selectivity doesn't mean that the community college, in fact, is diverse. So I don't think it necessarily follows at all that if you lower your standards and distribute this all across the country, we will get these educational benefits, you know, throughout our educational system.
QUESTION: Now -- about terms ago, we had the University of Mississippi higher ed. case in here -- MR. PAYRON: Yes.
QUESTION: -- and the argument was made that the historically -- the HBCs, the historically black colleges provided a different benefit to minorities. Would the same arguments with respect to diversity apply to those institutions?
MR. PAYTON: Yes. You mean do they benefit if they had a racially and ethnically diverse student body? I believe most every single one of them do have diverse student bodies. QUESTION: Thank you, Mr. Payton.
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.