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UNITED STATES COURT OF APPEALS
FOR THE
SIXTH CIRCUIT
_________________________________________ Jennifer Gratz
Plaintiffs-Appellants,
v.
Lee Bollinger, et al.,
Defendants-Appellees,
v.
Ebony Patterson, et al.,
Intervening Defendants-Appellees,
_________________________________________
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ORAL ARGUMENT
COURT: You may now begin.
MR. SHAW: Thank you. Affirmative action stands on two legs, either one of which can
independently sustain it. One is diversity and we join the University in arguing, as you can see
in our briefs, that the University of Michigan's diversity plan should be sustained. But, the
second basis is remedial and that's the basis on which a panel of this Court allowed us to
intervene, to present evidence that the University would not present. Whatever the argument that
the University makes on diversity, which, is as I have said, we join, the record shows that
affirmative action did not spring from the soil, did not materialize out of thin air, and that the
need for and value of diversity did not suddenly dawn on the University in the late 60's or the
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early 70's, when significant numbers of students of color began to be admitted. This University
does not write on a clean slate. Unlike Bakke, where the medical school was a new institution,
this is an institution with a history. There is a context which the University and the plaintiffs
have ignored. The intervening African American and Latino students have demonstrated in the
record in a way that is uncontested that the University was cognizant of the history. Whatever it
might say or not say, it was cognizant of it's history as it implemented affirmative action in the
1970's.
COURT: It never admitted it did it for remedial purposes, did it?
MR. SHAW: That's right, Your Honor. The institution has not admitted that. And that's no
surprise. An institution like the University of Michigan is unlikely to want to rely upon the most
unflattering aspects of it's history or to talk about its embarrassing present problems, whether it
is the issue of hostile environment with students of color that it is trying to grapple with, or
aspects of its admissions policies which may have discriminatory effect. So that is not surprising
that the University hasn't done that. The University has another justification, which is much
more palatable for them. But the record demonstrates that there was remedial justification and
the record demonstrates that the University has consciously struggled with these issues over the
years. The report of our expert witness, James Anderson, which appears at Volume V… of it
starts at page 2261 of the Joint Appendix, details the history of the University of Michigan,
dating back to 1817 since its inception with respect to the exclusion of students of color. But,
more than that this is a history that is not one of societal discrimination. That's not what we are
talking about. We are talking about a specific history of this institution and its struggle to
overcome that long history of exclusion. And more recently of racist incidents on campus. The
institution does not have to sit by silently and quietly while there are problems on campus, which
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perhaps others have been responsible for, but that affect, the climate of the community on the
campus with respect to race. And, so, if we look at the Supreme Court's opinion in Croson, the
Supreme Court there talks about the passive participation theory. That is to say that in Croson
the Supreme Court acknowledged that the City of Richmond did not have to be a passive
participant in discrimination of others. Well, here the University does not have to be a passive
participant in the actions of others, which create a climate that is inhospitable for students of
color on this campus. But, if we look at the record that we have shown and demonstrated, we
can show that affirmative action specifically has also been implemented in response to student
action, to faculty action, to people who struggled to change the climate of the University of
Michigan. It did not come about serendipitously and the record reflects that the presence, the
significant presence of students of color, has not been maintained serendipitously. In the 1980's,
where there had been or when there had been significant progress in opening the campus up to
students of color, the University changed a particular practice and policy and that had the effect
of starting a decline in the number of students of color admitted. The University once again had
to deal with student unrest on the campus, it had to deal with …
COURT: I'm sorry counsel, what was that policy change that caused the decline?
MR. SHAW: There was a policy change, Your Honor, that had to do with who, what students
were eligible for a particular treatment in the admissions process and there was, at that time, an
economic status element of that. And so what the University did was cut off consideration of
students above a certain economic status and that had the impact of causing a decline in the
number …
COURT: Is that discussed in the record at a particular place?
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MR. SHAW: It is discussed in the record, Your Honor. I can look up the cite and give that to
you.
COURT: Would that be in Anderson's report or in something else?
MR. SHAW: It is in Anderson's report, but it is elsewhere in the record also.
COURT: But the actual policy was something that limited preference to lower
socioeconomic groups, is that what I effectively heard you say?
MR. SHAW: In effect, that's what it did.
COURT: Okay.
MR. SHAW: It change. That's right.
COURT: Okay, I just wanted to get the …
MR. SHAW: But, of course, the record in Anderson's report also reflects this. There were three
instances in which, or at time periods in which there were movements on campus that were
called BAM, for black action movement. You can find them in the record BAM I in 1970 at
2277, BAM, II(f) is discussed at the beginning at 2297, BAM III, in 1987, which is at 2330. And
there is a long history of external and internal initiatives reviews, etc …
COURT: But, that tells us politically why it happened. That doesn't tell us whether it was
necessary or justified for remedial purposes. You are sort of giving us a history of campus
activism.
MR. SHAW: Well, the point is not merely to talk about the history of campus activism, Your
Honor. The point is that, as I have indicated a few moments ago, that the changes that the
University implemented to bring about increased presence of African American and Latino
students on campus did not come about because the University suddenly began to think about
diversity. It was because it was trying to deal with real problems on the campus, with the
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atmosphere … first the exclusion of African-American and Latinos on campus almost entirely of
who at least, the late 1960's in significant numbers. But, then after that the atmosphere on
campus. Again and again the record reflects that there were instances on campus, there were
studies I began to talk about, external and internal by federal agencies, by state agencies, by the
Department of Defense. In 1966, by HEW and in the 1970's and the 1980's there were internal
task force, which reflected the problems on the campus with respect to racial discrimination.
COURT: Counsel, let me get concede for the moment, or give you the argument that there
was some amount of racial discrimination that justifies some amount of remedial action. Now,
the folks that argued before you at least have a theory about how much remediation there should
be because they have this theory of diversity and that gives them a target. In your argument for
remediation what is the argument that gives you a quantity. That is, how much remediation,
either what's the goal or how do you measure it? For example, under some circumstances, let's
say, if Blacks had never been permitted to have 2 years of apprenticeship credit, you would say
okay we will give everybody who is black, 2 years of credit, whether they did the apprentership,
or not, because they couldn't do it. That's a theory of an amount. So, can you give me what
your theory is of the amount of remediation?
MR. SHAW: I would say, Your Honor, that as long as there continues to be a problem, which
has been continuous and is demonstrated by the record with a racially hostile climate that has the
effect of creating a reputation for the University that will dissuade African American and Latino
applicants from applying or enrolling at the University, then there is a remedial justification and
that remedial justification will continue to be in place and …
COURT: And, so from a …
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MR. SHAW: In 1989, Virginia Northby, which at the time was one of the highest ranking
officials at the University, was concerned about racist incidents on campus as was President
Fleming -- the record reflects that at page 2332 -- and specifically was concerned about the effect
that would have on enrollment of African American and Latino students. And, in fact, there was
a dip that took place …
COURT: But, that's not giving me any quantity or theory or goal. The words that you just
told me would justify, you know adding 3 points or adding 5 points or adding 20 points.
MR. SHAW: Well, Your Honor …
COURT: Where does it come from?
MR. SHAW: I'm not sure that we are required to talk about and I appreciate the question. And
I'm not trying to dance around it because I'm not a good dancer. But I don't know that we can
quantify the answers to these questions, as Your Honor likes. And, I think that at that point it is
up to the University to engage …
COURT: So, your at least at this stage, your argument would be at least until somebody
else sues them, any amount of remediation would be okay? Anywhere from a tiny bit to a total
amount?
MR. SHAW: Well, I'm not sure that I'm grasping, you know that …
COURT: Well, counsel my point is this, if I said to you �you have absolutely convinced me
that there is a constitutional justification for taking race into account, on account of these prior
conditions.� I guess my question to you is why should I say that it is okay for race to be taken
into account on their selection index 2 points, 10 points, 20 points, or any other kind of goal.
That is, you wouldn't be satisfied, I don't think, if as a District Judge I said fine you can
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remediate by adding one point to the selection index? You wouldn't think that would be
adequate, would you?
MR. SHAW: Actually, Your Honor, I would not tie myself and this is where you may differ
from the University, to a mechanical point application.
COURT: Well, or any other kind of system. That is, do you want proportionality to
something? Do you want half proportionality? Do you want a critical mass? You've got to have
some concept of where you want to go, don't you?
MR. SHAW: Well …
COURT: At most, you've told me start down that road and you haven't, at least so far,
given me any kind of theory for either policy or constitutionality, of what are my instructions
when I start down that road?
MR. SHAW: Well, Your Honor, first, and perhaps this bleeds over into the diversity argument,
but, nonetheless, what we want is an institution that ought to be able to consider race as long as
race continues to be a problem on the campus, and as long as I indicated a moment ago, the
problem of race on the campus could dissuade students from enrolling at the University of
Michigan. But beyond that I am not sure that there is any mechanical numbers that I want to tie
myself to. I think one of the hallmarks of a constitutional program is one that has flexibility. If
we get to the point where this Court is convinced, for example, that only on a remedial basis is
this justified, then the court could remand and have a further hearing for what would be a
particular and appropriate remedy, as it would do in a liability case if there is further evidence as
necessary. But we are not at that point.
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COURT: Could part of the answer include the argument made in the previous case that the
current system admits all qualified minority applicants, and that's the most that you would want
to have as the remedy, that all qualified minority applicants be admitted?
MR. SHAW: Actually, Judge Moore we aren't even going that far. Let me explain that. The
question to me isn't whether all qualified minority applicants are admitted. The issue in my
mind, in our mind, is whether or not the University can consider race as one factor among many
on a part of this applicant, or is it completely excluded from doing so? It may be in a particular
instance that you have an African American applicant, who is middle class or upper class and
you have one slot left and there is a white student from Appalachia and it maybe that you decide
to admit the white student and that's okay. But what we are saying is that the University ought
not be precluded from considering the race of the African American applicant as one factor.
And, so I really am not tying myself or ourselves to any specific result at the end of the day. At
the end of the day this is a question of whether or not African American and Latino students
continue to have access to the University of Michigan and whether it's possible for them to be
admitted in significant numbers. But we are not going down the path where anything begins to
smack or smell of a quota.
COURT: All right. Mr. Shaw, thank you.
MR. SHAW: Thank you, Your Honor.
COURT: Mr. Herr.
MR. SHAW: I'm not sure where I stand with respect to my three minutes.
COURT: I'll take … We will take care of that. We won't have a problem with that. We'll
hear from Mr. Herr. You didn't use it up is what I … but you were answering questions and that's
not using up your rebuttal time.
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MR. SHAW: Thank you.
COURT: Mr. Herr.
MR. HERR: Again, David Herr, on this appeal for the plaintiff …
COURT: Mr. Herr I apologize for keep saying Herr, my eyesight is getting weaker and I'm
looking at this small print and I keep seeing H-A-I-R instead of H-E-R-R.
MR. HERR: Everyone has said that it is our family mispronouncing the German, name so
either way …
COURT: No, no, go on …
MR. HERR: That's fine. We don't think there is a remedial claim. The key problem is the
remedy or things not being right on campus. If there are incidents of discrimination between
students or faculty members being insensitive to racial concerns or using racial stereotypes, the
remedy for that is not more discrimination, discrimination in the admission's office. And we
certainly can't say that it is a remedy. There is no evidence and this is what the trial judge found.
There was no evidence that there had been discrimination in the admission's process, that this
might logically remedy it. And the whole reason, in my judgment, reading the cases, the whole
reason for having an exception or remediation by that institution comes out of the employment
cases, particularly where there are union rules or seniority rules or things that make past writing
discrimination something that can't be remedied by fixing it now and going forward, because the
effects linger on. And, that's a different situation as where this came into being. And I'm not
sure that it is limited to that, but, I think it's a very significant point in why this proposed remedy
and some more discrimination in admissions cannot be narrowly tailored to anything that was put
on by the Intervenors. The part we are talking …
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COURT: So, are you attacking only the narrowly tailored part, rather than the compelling
interest part?
MR. HERR: Oh, I think it's the compelling interest argument we still … there is really nothing
new there. We don't think they have a compelling interest. We are very clear. We think right
out of the box they cannot advance a claim, that this is something the University could have done
had it chosen to, but didn't. The evidence in the record is the University did not embark on its
preferences in admission to remedy any past discrimination. It just didn't. And this is not a case
where they come in and dig around and find evidence that the University isn't advancing. They
come in, there's no evidence really that the University engaged in this or past discrimination by
the University of Michigan. I would submit and I eluded it to you in my initial argument, they,
in fact, may have done it to a remediary societal discrimination. I don't think they were
particularly forthcoming about that. But, there is nothing to suggest that they, in fact, did it to
remedy institutional discrimination in admittance at the University. So, they accuse us of
confusing actual purpose with something that they have some incentive in the courtroom or not
to come and argue in Court. The discovery shows it just wasn't there. It's not why they did it.
And I think, as a matter of fact, you cannot conclude a matter of logic, you cannot conclude that
the University narrowly tailored its program to deal with discrimination, when it didn't tailor it at
all for that reason. It's just, you can't do it after the fact. And I would cite the Court to the Shaw
v. Hunt case for guidance on the idea that you can't come up with post hoc reliance. You can't
come up with post hoc justification, some reason than it might have worked if we had only
thought of it earlier or if somebody else had thought of it earlier. It just isn't constitutional law.
You know, we briefed a jurisdictional challenge, which we think is meritorious, and the
procedural notice issue that I don't think is important. I'm going to rely on the briefs on those. I
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want to make one last point. One last piece of evidence that I think is compelling on why this is
not something that is justified by the climate or the arguments advanced by the Intervenors, is the
evidence is that it hasn't changed since the University started doing it's references. And it shows
that this connection, this is not tailored at all. It's not relating to discrimination. I will get back to
it. You don't fix the problems that the Intervenors are talking about by more discrimination in
the admission's process. You fix them by dealing with whatever the discrimination is or
whatever the inappropriate conduct is. If it's pervasive, if the University has notice of it, it may
be the University's problem. It maybe an individual problem. It maybe a personnel problem for
the University. There are all sorts of remedies out there.
COURT: Counsel, with respect to the Glurin report. Is that the way it is pronounced?
MR. HERR: Gurin.
COURT: Gurin. I'm sorry. The people who were questioned with respect to that report,
were they … can you characterize what schools they came from? As I recall that she interviewed
a number of people. Were they college students?
MR. HERR: At the University of Michigan.
COURT: Okay, and they had come from what, a variety of high schools?
MR. HERR: Yes, I believe all over. I don't remember the selection was in those. I remember
the report as being sort of self-selected. It was a sampling of people at the University of
Michigan who had taken a particular course.
COURT: Okay.
MR. HERR: But, that was her report.
COURT: Okay, I'm just curious because it is also included in the Law School record as
well and I just didn't know if it was … at what stage it was. Thank you, counselor.
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COURT: To what extent, I know there are other point preferences, preferences for
geography and for alumni status. To what extent could the points for minority status offset the
inherent imbalance racially in those other point preferences?
MR. HERR: Well again, I would say first, even if there is no evidence the University adopt
them for that purpose. Second, there is just not a constitutional justification for it there. But, I
don't think the record really answers that question, nor with athletics. And, in fact, I don't even
know which direction it goes with respect to the athletic preference.
COURT: I guess there is evidence in the record of what the racial makeup of the preferred
counties is, I think?
MR. HERR: Yes.
COURT: But that preference was how much? Six points for the counties, for the
underrepresented or Northern Michigan points?
MR. HERR: I have to say I am not positive, sounds right for that …
COURT: Okay.
MR. HERR: … you're not giving me an authoritative answer …
COURT: Okay. It's quite a bit less …
MR. HERR: I'm sorry …
COURT: And then there were additional points for alumni, is that right?
MR. HERR: Yes.
COURT: And the alumni basis is largely Caucasian?
MR. HERR: Yes, although not completely. There was some disparate … I mean there were
more. It was not the makeup of the freshman class, but it was a significant number of minority
applicants.
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COURT: And that was 4 points, I believe?
MR. HERR: I think that is right. And we believe that …
COURT: Thank you, Mr. Herr.
MR. HERR: … the trial judge's decision on this part of the case should be affirmed.
COURT: Mr. Herr, thank you sir. Very well. Mr. Shaw your rebuttal. Just a moment. I
think while you were standing, if any, I noticed there were several who rose and sat back down.
If any of you want to leave just before he finishes up, you are clearly able to do so. I assume, as
we say by your silence, that you do not. So we will now go back to Mr. Shaw. Mr. Shaw.
MR. SHAW: I want the Court to …
COURT: Wait a minute, wait a minute, now my eyesight is juggling. But we will let them
get out. As I say, I am showing you the signs of struggling with my sight, so proceed Mr. Shaw,
the person is now out.
MR. SHAW: I want the Court to understand that it is only the limitations of time that prevent
me from going through the record in a very detailed way with respect to the discrimination that
the University was aware that lead it to adopt the policies that it did affirmative action.
COURT: Did you compare that at all to the Georgia case? I would assume that the
evidence of past discrimination of Georgia is massive. Yet, at least in the public press, and if
you don't want to be bound to it, that's fine, but people including you personally have been
quoted as saying well the Georgia case is against the University is a lot stronger. The
University's case in Georgia is a lot weaker than in Michigan, whereas I would think certainly on
your past discrimination point, however bad Michigan has been, Georgia would have to be a lot
worse?
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MR. SHAW: Well, Judge Boggs that is correct and, of course, this is all outside the record. But
I'll just say, try to say as quickly as I can that the Georgia case was a little different. And we
were involved in the Georgia case, that is that the Legal Defense Fund was. And one of the
differences in Georgia was that the state in Georgia did not put on any evidence in the record.
No evidence with respect to either diversity, nor did the state put on any evidence in the record
with respect to it's history of discrimination. And, in effect, we move for discovery to allow us to
create a record with respect to the, State of Georgia's history of discrimination. The District
Court did not allow us that discovery, so that wasn't part of the record. So, it was completely
absent, which is part of the problem in most of these cases. It was a problem in Texas also. That
is to say that the assumptions is that these cases are written on a blank slate. And they are
decontextualized, a historical … (inaudible). So you know Georgia is very different and there
were tactical reasons for us to think that Georgia was not the best case to go forward. I want to
talk about the assertion which my esteemed adversary made with respect to admissions and the
lack of discrimination in admissions. We have briefed and we created a record that I know the
Court is well familiar with. We have briefed the issue of discrimination in admissions and the
SCUGA of points and many of the questions that the Court was asking Mr. Herr, I think reflects
the Court's familiarity with those points. The SCUGA factors is utilized by the University have
been unintentional, I assume unintentionally. We argue, nonetheless, that they had a
discriminatory effect that is unjustified and unnecessary. And, there is an offset of, because of
affirmative action that the University practices, which nullifies the otherwise discriminatory
effect of those policies. The District Court Judge recognized that offset, although he drew the
incorrect conclusion about the significance of it. So, I wanted to point that out to the Court. The
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Court's well familiar, I think, with those arguments that we made. What we are saying that there
was discrimination, in fact, in admissions by …
COURT: Mr. Shaw let me ask. On page 15 of Judge Duggan's opinion, as an initial matter,
the Court notes that Defendant-Intervenors presented the Court with no evidence that the
University or the LSA ever (inaudible) facially discriminated against minorities in admissions
and you disagree?
ANSWER: I take it that what the Court meant -- what the Judge meant -- was intentional
discrimination. And our argument, which I'm not sure how well the District Court judge
ultimately grasped the argument, but our argument is that, but for affirmative action and its
ameliorative effects, there may be a disparate impact violation with respect to the SCUGA
factors that we briefed. So, that's the argument, I take it that what the language that Your Honor
just quoted is language which reflected that we didn't make a case about intentional
discrimination, but our case doesn't stop there. Now …
COURT: So, the key word in his quote is facial. If you take out facial and you would say
yes there is discrimination in admissions.
ANSWER: That's right, Judge Boggs. The point that I wanted to make is that the record is
simply inconsistent with the representation that the University did not implement affirmative
action because of its history and it's problems. Even if we look at one of the most recent eras
with respect to discrimination, we look at the late 80's or the early 90's, when the Michigan
mandate was adopted. The Michigan mandate was adopted right on the heels of a series of very
serious incidents on campus, which are reflected in Professor Anderson's report. And the
President and other administrators were concerned about the effects of those incidents. I referred
to one before with respect to President Fleming and also Virginia Northby concerned about the
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effect of those incidents on admissions. Particularly, and on the heels, again I refer you to page
2332 of the record. And, so they recognized the connection between the problems that they had
-- very serious ongoing problems they had -- on campus, and I don't think I want to belabor this
point. I just want to say that I think that the record is absolutely clear whether the University,
understandably may not have made the argument. We say there's a firm basis in evidence, a
strong basis in evidence, that the remedial justification.
COURT: Thank you, Mr. Shaw.
ANSWER: Thank you.
COURT: The second case will now stand submitted.
END OF HEARING
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