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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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) Nos. 01-1333, 01-1416, 01-1418
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ORAL ARGUMENT
COURT: 1416, 1418, Jennifer Gratz, et al. vs. Lee Bollinger, et al. Oral argument.
MR. HERR: I'd like five minutes for rebuttal.
COURT: That is correct. We will record that.
MR. HERR: Good afternoon, I am David Herr, counsel for the appellant, Jennifer Gratz
and Patric Hamacher and the class of students, or would be students who applied to the
University of Michigan and were discriminated in that process on the basis of their race. This is
undoubtedly an important case. I think the arguments have been very well developed, really on
all sides, in the briefs and I could give a perfectly good oral argument just from reading our reply
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brief to you. It would not be scintillating, having read it, but I think it would cover many of the
main issues.
COURT: Are you offering to ask us to read the reply briefs and sit down? I would
be glad to accept your offer, if you are making it, because I could assure you we have all read
your reply brief.
MR. HERR: Rather than do that, what I intend to do is point out what I think are the
specific areas or errors that the trial court made that resulted in entry of a summary judgment and
denial of our claims for injunctive relief. There are seven things I intend to address. I intend to
get to all of them, but if I don't I want to lay them out of what they are in case I don't. There is
an error of not following the parties' stipulation in finding that there was a distinction between
the first four years that were being litigated and the last two, when, in fact, the facts do not justify
any conclusion that those years were different. Secondly, the apparently mistaken belief that the
use of race as a factor of the University of Michigan was permissive rather than automatic.
Third, or in the fact that the University employed a two track system at all times during this --
that we were looking at the litigation. Fourth, we think the Court was just wrong in concluding
that the University of Michigan plan is not racial balancing. The evidence in the record or its
conclusion only that it was. Five, although the trial court recites the correct standard -- strict
scrutiny -- we it believe is clearly that he really doesn't follow it; he exercised a rather
deferential scrutiny of the University's plan. Six, on the question of whether diversity is
compelling, we think the trial court is just wrong on the law and I would like to get to that. And,
finally, we think the Court was wrong to deny injunctive relief, as it … particularly as to the
four years (inaudible) the plan was unconstitutional. First, this case, I think, presents only plain
error in the conclusion that somehow … first of all, the judge worked backwards, which I don't
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think any of us understands. He found that it was … the first two years, I'm sorry, the last two
years, the most recent years were.
COURT: No, they are 1999 and 2000.
MR. HERR: 1999 and 2000. And then working backwards somehow says that the
program crossed the line into constitutionality. I'm sorry unconstitutionality for the first four
years. And we just think that the process is wrong --
COURT: To ensure that we are talking about the same thing, there was an academic
year 1997 admission policy for the undergraduate school?
MR. HERR: Correct.
COURT: Correct.
MR. HERR: Yes.
COURT: A separate one for the academic year 1998.
MR. HERR: Correct.
COURT: And then a common admittance policy for academic years 1999 and 2000?
MR. HERR: Yes, and earlier for 1995, 1996.
COURT: I wasn't aware we were --
MR. HERR: Evolution of the plan throughout the time period.
COURT: Well, the evolution. But, I meant the objection that you said there were
the four years that you were questioning.
MR. HERR: The judge drew the line and found the last two years constitutional.
Changes had been made to the 1999 and 2000 years. He did it sort of backwards
chronologically, but saying that the development at that time and the changes made that year
rendered the plan constitutional.
3
COURT: As it's now applied.
MR. HERR: As it now applies. He denied injunctive relief in one sentence. He simply
denied it and doesn't explain that. And I will talk about that later.
COURT: But, let me ask you about the injunction. What would that injunction
provide?
MR. HERR: We think it should provide that the University of Michigan cannot use the
plan that he found, or that unconstitutional features of the plan that he found was
unconstitutional. And we think it is error not to grant them injunctive relief where the University
is at present free to engage in that. It's been changing the plans frequently, as you have
established and no and it's unconstitutional -- and we think it's -- we are entitled to that relief.
To enjoin them from reusing what's been declared unconstitutional.
COURT: Do you have any basis to believe they will reuse it?
MR. HERR: Well, yes. They have expressed no acknowledgement that they thought it
was unconstitutional. In fact, they are here appealing about it and they do change it regularly.
So, yes, I think that, given that latitude, it's likely to be. They haven't announced an intention to
do it or anything like that.
COURT: You really think it's likely or are you just speculating?
MR. HERR: To say that it is likely … I think I have stated what the record shows and
that is that they haven't repented in any way. They are not restrained from doing it and they
have expressed an interest in doing it, although they haven't talked about changing their plans.
So …
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COURT: But assuming that the plan is unconstitutional, as the District Court found
for those four years, would there be any likelihood that a University would adopt or embrace a
judicially declared unconstitutional plan afterwards?
MR. HERR: I think there certainly is a risk that they would adopt features of it that the
Judge had declared unconstitutional. I think that we do not feel that we are free from that risk
merely by his ruling on the parts that are unconstitutional.
COURT: Isn't the crux of that controversy that according to the -- what I take it as
the joint statement of undisputed facts -- the University says the development of the selection
index in 1998 changed only the mechanics, not the substance of how race and ethnicity were
considered in admissions? But my question to you is, if the new plan is constitutional, and if it
only changed mechanics, how you can argue that the old plan isn't constitutional as well?
MR. HERR: Well, I do think he was wrong in making the other sides' argument that
they would …
COURT: Judges do that sometimes.
MR. HERR: … then it would all be the same. Yes, you are entitled to do it.
COURT: But I take it that both sides in that joint statement said there was no
difference. In fact, both of you wanted to role the dice for all or nothing and the District Judge
said no I am going to look at it separately and came to different conclusions. Is that a fair
statement?
MR. HERR: That's right. We were expecting to find the plan … because the
University's essential agreement that at all times, if their purpose was to admit all qualified
minority students in their 4, in their 3 preferred groups and to allow all the other applicants to
compete against each other. That was a constant throughout the system and we think that
5
constitutionally the years ought to be treated the same. And, yes the fact that the University says
it's a matter of procedure, not substance, and it's of no consequence -- change that was made in
1998. We think that is essentially dictate that in person. The trial judge said it cannot be
seriously disputed, this is as to the old system, that the effect of the different standard was to
systematically exclude a certain group of non-minority applicants from participating in the
admissions process based solely on the account of their race. That is a constant throughout the
years in question. And, even if you disregard the stipulation, we think the facts dictate it.
COURT: But we can't disregard the stipulation. I think that is what makes this case
unusually unique. You stipulated to these facts. We are bound by those facts.
MR. HERR: I am not asking you to ignore it; I am asking you to enforce it. But I am
saying even without the stipulation. The facts would …
COURT: But there is no stipulation. There is no record for us to review, is there?
MR. HERR: No, there is a stipulation. It is compelling. And I'm just maybe
anticipating an argument, but …
COURT: Sometimes it's better to get the argument you want to make across first
and then we will let them anticipate the response.
MR. HERR: But this is, this is our argument too. Just set aside the stipulation. The
record supports that it was a continued use of a mechanical 150-point scale. It replaced grids,
different grids for favored minorities and other applicants. It gave 20 points rigidly
automatically on the basis of race, no other factor involved in that, throughout that period that
that system was used. And we think …
COURT: Is the 20 points
MR. HERR: That dictates the conclusion.
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COURT: Is the 20-point rule still in effect in 1999 and 2000?
MR. HERR: That's what the record shows Your Honor.
COURT: That's what I am asking. In that stipulation … that's part of the
stipulation, is that 20 points were given for applicants within a pool of Hispanic and African
American women?
MR. HERR: No.
COURT: They weren't included, so it's just the Hispanics and African American
group.
MR. HERR: And Native Americans.
COURT: And Native Americans.
MR. HERR: Three groups.
COURT: All right.
MR. HERR: And, just to be clear, the process was changed in 1998 under stipulations.
So it was in 1998 that they abandoned the bridge and went to this 150-point scale. And the
stipulation on it states: applies to 1998. The Judge then distinguished off 1998 into the earlier
unconstitutional group and found 1999 and 2000 being the replenished constitutional years.
And, we think there isn't a factual basis for that. What they did then was mechanical. They
tinkered with who makes the determination, but they didn't tinker with the result and they never
walked away from their policies. That, it's throughout the record, that their policy was to admit
all qualified minority applicants, allowing the others to compete.
COURT: But they are different in terms of reserving certain spots that … what year
did that change from that policy to a more flexible policy?
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MR. HERR: They had a policy, a term of reserved seats. And the reserved seats
process ended in 90 … the first year they didn't have it was '99. And … But the result … the
University said that was one of the things that didn't make any difference. That the fact that the
reserved seats were just an administrative feature to deal with the fact that later applicants, that
some groups tended to apply later and so they rejected any argument that the reserved seats had
more significance. So, again, it wasn't used in 1999 or 2000, but it didn't make any difference.
COURT: You said a couple …
COURT: Judge Duggan thought it made a difference.
MR. HERR: Well, he talked about it. He thought something made a difference, but I
don't think you could find a constitutional distinction based on what the process is.
COURT: The reserved seats sound more like the UC Davis plan that was struck
down in Bakke, whereas this 150 point plan is one that is not separate admissions committee.
MR. HERR: Well, it has the same effect. And this Court has recognized that, you don't have
to call it quota, you don't have to call it protected seats. It functions the same way. And the
University agreed that it functions the same way. Different people were making this
determination, but the results of this system were identical.
COURT: You have said a couple of times that the University conceded that they
would admit all "qualified minority applicants" presumably while rejecting significant numbers
of "qualified non-minority applicants." What's your best source for that admission or
concession? Is that finding of fact?
MR. HERR: Page 405-406 there is a memorandum from the Director of Admissions to
supervisor. It's a 1995 memorandum that says that's the University's admission policy and that
feature has never changed. There is no evidence in the record that the policy statement in that
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document. The significant difference is that minority guidelines are set to admit all students who
qualify and meet the standards.
COURT: So, is it your … is it your sort of imputation from that, that the way the
system is developed, if you … That whatever the standard for qualified is it would be minority
applicants minus the 20 point minority bonus. That that would be a standard of qualified that
you could then compare to other students?
MR. HERR: I'm not sure that that would work.
COURT: Well, in order to get your theory, you would have to take -- you are saying
that their position is every qualified minority should be admitted. They use the selection index
so you think you would at least start with looking at that index and back out the minority and that
would be your standard to qualify.
MR. HERR: Yes, and the backing out is the equivalent of one whole grade point. And
remember in the Eleventh Circuit case, Johnson, that was decided recently that was found …
that program was struck down having a half point?
COURT: The admissions policy at the University of Texas and the University of
Georgia are very distinguishable from these admission's policies, aren't they?
MR. HERR: Certainly, sure in many ways Georgia, I think, is distinguishable because it
is, does not give this big a play to race as the University of Michigan's.
COURT: Well, I thought it was the reverse. All right, thank you very much.
MR. HERR: I will use my full rebuttal.
COURT: Very well. Mr. Payton.
MR. PAYTON: Good afternoon, Your Honor. Mr. Shaw has given me his 5 minutes, so I
have 20 minutes.
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COURT: What we want to do -- is don't make statements like that when we have
got -- because that is just going to confuse our … the way we set this up. We have set it clearly.
Mr. Herr has 20 minutes, 5 minutes for rebuttal. You have 20 minutes, no time for rebuttal.
MR. PAYTON: Fine.
COURT: Proceed.
MR. PAYTON: Fine. Thank you. My name is John Payton and I represent the University
of Michigan and the two individual defendants, the President of the University, Lee Bollinger
and the former President James Duderstadt. It's the educational …
COURT: And the former to be former President. I was thinking … am I correct?
MR. PAYTON: That's correct Your Honor.
COURT: He's jumped ship and gone to Columbia, I understand.
MR. PAYTON: That's correct. But he is present in Court today.
COURT: All right. We won't hold it against him.
MR. PAYTON: It's the educational judgment of the University of Michigan that a broadly
diverse student body is essential to the outstanding education that we provide to all of our
students. And it is our further educational judgment that racial and ethnic diversity is a crucial
component of that broad diversity and that, in order to achieve that broad diversity, we must take
race and ethnicity into account in our admissions.
COURT: But why limit it to just three minority races?
MR. PAYTON: The limitation to African Americans, Hispanic Americans, and Native
Americans is because those three groups would not be represented in sufficient numbers if we
didn't take their ethnicity or race into account. We want a very, very broad diversity and we
expect and, in fact, achieve other forms of racial and ethnic diversity without having to do
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anything special with respect to some other groups. But we want a very broad diversity and we
want the diversity because it is our educational judgment that all students actually learn much
better in a student body and in an atmosphere that is diverse. In fact, some of the most important
learning happens among students in the classroom and outside the classroom. And -- I think this
is a crucial point -- when students are exposed to other experiences, other views, other
perspectives that other students bring to a classroom or dorm room or seminar they actively get
to reflect on their own experiences in very different and a very educational ways. They see what
is the same and what is different about themselves and this disrupts their own routine thinking
patterns and creates what Justice Powell said in Bakke was the atmosphere of speculation,
experiment and creation.
COURT: So, under that theory, would it be constitutional for a University to decide
that it didn't have enough Southern Baptists, so it should admit more of those and admit less
Episcopalians and Jews, for example?
MR. PAYTON: I think, if we took the example out of the arena of religion, I would say
yes. I have a problem …
COURT: Is there a different constitutional standard for religious discrimination?
MR. PAYTON: Yes, they are different constitutional standards and I think we run into an
entanglement problem with a public institution making judgments on the basis of religion.
COURT: So … I just want to get your position clear … that a University may
discriminate more on the basis of race than on the basis of religion?
MR. PAYTON: I am going to say this in a different way. I think that there is a way of
looking at how a University selects its student body that centers on the student applicant and says
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this student, he or she, is entitled to get in because … I don't think that is how it ought to work
and I don't think that's how --
COURT: Well, counselor I'm sorry, but I think you are dancing around it, because a
counsel could stand there and say exactly the same thing about my hypothetical. We have no
quotas, we have no standards, it's just we give Southern Baptists 20 points. And we look at them
all holistically and no Southern Baptist has a right to get in. It seems to me that you've got to
come back and answer my question is it race versus religion? Which is your position?
MR. PAYTON: I'm sorry. I thought I was answering your question. I think that religion
creates very special problems for the public institutions that involves the first amendment and
getting entangled in deciding …
COURT: Politics would be the same then, if you decided you had too many
conservatives or too many liberals?
MR. PAYTON: I think politics isn't the same and I think that with respect to a lot of
different judgments … or if you had just said southerners, no problem at all.
COURT: Oh, my gracious, we don't want to exclude us southerners. What do you
mean? We are the only state to join the confederacy after we lost the war.
MR. PAYTON: I'm going to your point Judge Martin. That you clearly could take into
account, and we do take into account, geographic diversity in order to achieve a very broad range
of diversity. I am just saying, with respect to religion, I think the first amendment creates special
restrictions that apply to a public institution.
COURT: But not on political views? I mean, we have a lot of First Amendment
cases. I mean all of the Rutan (phonetic sp.) and all the retaliations of political views cases. I just
wondered …
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MR. PAYTON: I think that if we went after specific views maybe that would raise some
problem. But I think that, you know, we are selecting students from out of high school. And I
think that the idea that they have fully formed political views, I'm not sure that that's actually
reality. But we make all sorts of judgments about what kinds of diversity we want. Where they
went to school; the kind of school they went to; whether they are in state; whether they are out of
state; whether they actually in the upper peninsula in Michigan as opposed to not in the upper
peninsula; whether they are from certain states where there is less geographic representation in
our student body; racial and ethnic background; unusual circumstances; unique circumstances.
And we get and achieve a very, very broad range of diversity in our student body that, I think
enhances the education for every single one of our students.
COURT: Mr. Payton, I think Mr. Herr pushed very hard on this 20-point problem in
the way that the admission process is worked up for a decision by the Admissions Committee.
What do you say to that argument?
MR. PAYTON: We currently make decisions on a selection index that goes to 150 points.
Grades count for 80 points. Actually, academic matters count for 110 of those potential 150
points. The 20 points for race or ethnicity is certainly not the largest component. There are other
components, such as economic circumstances that also can be given 20 points.
COURT: Do you have any data on how many people got the 20 points
socioeconomic?
MR. PAYTON: There is nothing in the record, Your Honor.
COURT: So, it could be 1 or it could be a 100.
MR. PAYTON: I'm sorry?
COURT: It could be 1 person or it could be a 100 or it could be a 1,000.
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MR. PAYTON: Yes, the record is silent on that you just don't know?
MR. PAYTON: There wasn't discovery taken into that.
MR. PAYTON: I think that the 20 points which attaches to race, ethnicity, unusual
circumstances, is there because we think we wouldn't get sufficient representation of the
diversity without giving it the value that we give it.
COURT: Mr. Payton, the Law School-- I guess we'll be hearing their case next--
says that they've got them. They claim the Harvard plan, they say it was approved by Bakke.
And there they don't give any fixed amount of points, it's just a holistic plus thing. Now, why
isn't the 20-points that the undergraduate assigned, isn't that less narrowly tailored than the
Harvard plan would be considered narrowly tailored?
MR. PAYTON: Actually, I think that it isn't at all a plan. When Justice Powell was just
going through the analysis here, the first part of his analysis is in having a racial and ethnically
diverse student body a compelling and he concludes that it is. And then he decides whether or
not the way that Davis did that was an appropriate way to do that. And he says it wasn't because
Davis took only one aspect of diversity into account. That was racial diversity and it didn't take
away other aspects. And it did it in a rigid way, that is it had a quota, 16 percent, 16 spaces in a
class of a 100. And he said that he looked to other leading institutions to see how they did this in
a more flexible way. He then uses as an example the Harvard plan, but it's just an example. And
he described the Harvard plan, which is quite flexible and then there is a footnote where he says
such, you know, policies … . There is a footnote that references the Princeton plan and it
references a long research book on how other leading institutions had done this. Now, that is
footnote 50 and footnote 51. And you will see there is a treatise by Mr. Manning that goes over
all sorts of other leading institutions. The difference between a small professional school, a law
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school, and a very large undergraduate university is the difference between 3,500 applications
and 14,000 applications. And that has consequences about how you can go about doing things.
In the Law School, which you will hear, one person reads all the applications. That's just not
possible when it's 14,000 applications. What Bakke says is okay, is that you take race into
account as one factor among many factors in making your decision. And you do so without
using a fixed rigid quota, that you don't have a separate set of, you know, only these people deal
with minority students or there is a second track. We comply absolutely vigorously with what
Justice Powell says …
COURT: So, Counsel, when Brennan Marshall Blackman and White say there is no
sensible distinction between adding a set number of points with the expectation that it will result
in the admission of an approximate number of qualified minority applicants and setting a fixed
number of places, do you think they are simply wrong?
MR. PAYTON: I think that the point I am making is that we don't seek the fixed number
of places by either method, by either method.
COURT: You do not have an expectation that this will result in the admission of an
approximately determined number …
MR. PAYTON: That's correct.
COURT: So, if one year you woke up and this system lead to three percent minority
admissions you wouldn't have any heartburn at all?
MR. PAYTON: Well, let me tell you what it is we are seeking when we try to have the
diverse student body and what it is that we are trying to achieve. And the term we have used --
but I will define it -- is critical mass. The educational benefits that I am talking about -- they
come from a diverse student body -- only accrue if the student body is sufficiently diverse.
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COURT: So, three percent would not be a critical mass?
MR. PAYTON: Three percent may not be a critical mass. The Harvard plan, which Justice
Powell quotes extensively in his opinion and then attaches as an appendix, makes it's plain that
having merely token numbers -- and that's Justice Powell's phrase in his book -- having merely
token numbers of minority students is simply not adequate as an educational matter …
COURT: He doesn't define what token numbers is?
MR. PAYTON: He doesn't define it. The Harvard plan says that you have to have enough
so that the minority students don't exist in a sense of isolation. But, just as important, just as
important, is the realization that students don't react with each other in the student body as a
whole. They react in seminars, and, you know, lecture courses, and in dorms and in dining
rooms. And it is in those specific situations that it's important that there are sufficient numbers
of minority students, in order to get these educational benefits. That's how it really works.
Therefore, when we say meaningful numbers, meaningful numbers so that in those situations,
say a seminar, they will be meaningful numbers of minorities --
COURT: I'm sympathetic with that as a public policy reason, but for exactly the
reasons you gave, it sure sounds like you are trying to get about a certain number. That is, it is
not exactly 10 percent, but for every reason you just gave me, we can go through a discussion,
say well 3 percent is not enough. You have witnesses that said 5 percent is not enough. You get
8, 9, 10, you start getting more comfortable. You don't just wake up and not care of what the
numerical result is.
MR. PAYTON: No, no, clearly we care. And clearly the Harvard plan that Justice Powell
sanctions says that there has to be some attention to the numbers. It says that explicitly. So,
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clearly we care. But caring about a critical mass is different than saying we want to a rigid quota
of 16 percent or whatever that number is. How much is a critical mass …
COURT: Do you agree that the 20 points, though, is connected to whatever that
critical mass is?
MR. PAYTON: Yes.
COURT: If it were 10 points, you know or your clients know, as professionals, there
would be roughly a lower number?
MR. PAYTON: Yes.
COURT: If it were 40 points, your clients know that it would be roughly some
higher number? Is that fair?
MR. PAYTON: Actually, I agree with your first proposition, but the second one is wrong.
We have a pool of minority applicants that is so small that that, causes us, in effectuating these
policies, to end up admitting virtually all of the qualified applicants.
COURT: So, your adversary is correct when he was making that statement …
MR. PAYTON: He is right as far as the results of the policy.
COURT: … okay.
MR. PAYTON: It is not the policy. The policy isn't admit every minority student...
COURT: Who's is qualified. Who is qualified.
MR. PAYTON: No, the policy is we need to make sure we get meaningful numbers or a
critical mass. And, because of our small pool size, the result is we end up admitting …
COURT: And 20 points is enough to give you that goal.
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MR. PAYTON: 20 points is enough, but we end up admitting virtually all of the qualified
minority students. Increasing it to 30 wouldn't change anything. We are not going to admit any
unqualified minority students. So that's the difference there.
COURT: All right now, Mr. Payton, right there is a good point, time to ask you this:
in Johnson v. The University of Georgia, the opinion there points out that … they used 0.5, but in
effect that appears to be approaching the 15, 18, 20 percent, isn't it? Just like yours. So you
would have to admit that your program and the University of Georgia, at least as to this point
figure, is reasonably close?
MR. PAYTON: Actually, I didn't fully understand what the University of Georgia was
arguing. In the opinion itself, in Johnson, there is a reference to the fact that when asked at the
oral argument there, counsel for the University of Georgia said the number .5 was arbitrarily
picked out. That's not how we operate our program.
COURT: 20 wasn't arbitrarily picked out?
MR. PAYTON: No, no, it was …
COURT: Do you have data or something in the record that shows why they used 20
rather than 15 or 25?
MR. PAYTON: Yes. Yes.
COURT: Where would I find that?
MR. PAYTON: We have a system that was devised to try to achieve a critical mass of
minority students. The old system, which used the grids, was turned into the selection index and
the transformation from one to the other was designed to capture relationships between various
factors that we take into account.
COURT: Where would I find that in the record?
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MR. PAYTON: It is in the deposition of Mr. Hunter. I don't have the joint appendix cite,
but he is in the joint appendix where …
COURT: Do you think he discusses why it was 20 rather than 10 or 30?
MR. PAYTON: Yes. Well, he says that he tried to capture the relationship between the
various criteria that are taken into account. Let me just make one point about something that Mr.
Herr said that I think was misleading. The difference between the selection index and how we
operated our system before. Obviously we did intend to continue forward, the concern about
having a broadly diverse student body and making sure that we have a critical mass of minority
students in order to get the educational benefits that we want. But the 3 … There are 3 things,
that Judge Duggan found that we unequivocally stopped doing in 1999, that he said together
caused him to say that the prior operation of the system was unconstitutional. It's not that we are
doing exactly the same thing, there are 3 things. We have a system that he found automatically
rejected some students. That's true that there were no underrepresented minority students that
were automatically rejected. They were all reviewed. Their applications were reviewed, but
there were also similar categories of students that went to private schools. All had all of their
applications automatically reviewed, even if they weren't otherwise have been considered. But
he said that, he said protected seats, and he said the use of the grids. Those three things together
he said made the prior system unconstitutional. There is simply no question that we have
abandoned all three …
COURT: But, do you adhere to the statement in the undisputed summary that only
the mechanics change, the basic substance of the plan did not change?
MR. PAYTON: Well, the basic substance of a plan is that what we wanted to achieve out
of the plan was, in fact, what I described as being the same. We wanted to achieve a critical
19
mass of minority students. There is no question that those three things that Judge Duggan took
issue with -- which we are arguing about, but I don't really want to press that here -- the three
things that he took issue with we stopped doing. There is simply no question about it. Those
things stopped.
COURT: So your answer is that you do agree or you don't agree with the statement
in the undisputed summary?
MR. PAYTON: I agree that when we went from one system to the other, we still wanted to
come up with a critical mass of underrepresented minority students and that the mechanics of
how we achieve that, the form of that, did change. Form can matter for purposes of
constitutionality. I don't think there is any question about that. But, we did unequivocally stop
doing the three things that Judge Duncan took issue with.
COURT: Okay, the quote, the reason that I want to press you is that you sounded
like you segued into aspiration. The goals haven't changed, but the quota is only the mechanics,
not the substance of how race and ethnicity were considered in admissions.
MR. PAYTON: That's right. Yes, race …
COURT: Have not changed . That's different from just the aspiration.
MR. PAYTON: Well, the way that race and ethnicity were taken into account was in order
to achieve a critical mass. We don't do protected seats any more, we don't have the automatic
rejects, and we don't use the grids. Those three things he found problematic.
COURT: But how race and ethnicity are now considered is substantially the same as
how it was considered before.
MR. PAYTON: We still count, you know, we still say that we want a critical mass.
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COURT: Counselor, you keep saying want and I keep telling you the quote doesn't
say want, the quote says how.
MR. PAYTON: Yes.
COURT: All right, how is okay?
MR. PAYTON: Yes. I'm in agreement.
COURT: All right. Good.
COURT: Do you feel that the determination of whether there is a compelling
governmental interest is a legal determination or a factual determination?
MR. PAYTON: I see it as a legal determination. I think it is a legal determination and I
think Bakke actually decides that. But, if this Court decided that, doing a Marks analysis, that
Justice Powell didn't control, we have put in, I'd say an overwhelming expert case, that I think
this Court could look at and reach the same legal conclusion as Justice Powell reached in Bakke.
COURT: Mr. Payton, could I ask you, before you finish, how do you know a critical
mass when you see it?
MR. PAYTON: Okay, I think that Judge Martin, when I answer this question it is going to
run past 3 seconds.
COURT: That's why I told you in the beginning you had my permission.
MR. PAYTON: I think the question how do you know when you achieve a critical mass is
answered by (inaudible). You know when the students in your student body don't see
themselves and each other as representatives or symbols, but as individuals. And you know
when the students have their stereotypes about each other, which we all bring, see those
stereotypes undermined by the encounters they have with the other students that they see. And
you know when students find differences and similarities about each other that enrich their own
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understanding of others and themselves. And that's what happens when you have sufficient
numbers, meaningful numbers, critical mass of minority students. The answer is not a number.
It's an educational reality that we think is crucial to the education we provide to all of our
students.
COURT: Thank you Mr. Payton. Mr. Herr?
MR. HERR: I would say if you can't answer that question in 3 or 5 or 10 seconds it's a
sign that it's too amorphous a concept to exist in the world of narrow tailoring. It just doesn't
work.
COURT: I'm not so sure I understand that either but I'll say this: universities are all
unique institutions; they make a lot of ephemeral decisions, all the time. And what's wrong with
that?
MR. HERR: Well, under the constitutional standard of strict scrutiny it's problematic …
COURT: I understand, I understand.
COURT: If a critical mass is too amorphous, then how can it be a quota?
MR. HERR: You heard, I think how it is a quota from the answer that all they did to
come up with this new standard is to take the grids, which are unconstitutional -- and I think,
frankly, they recognize that. They got sued -- the grids went away after we started this lawsuit --
and replace it with a 150-point scale, which doesn't look quite as much like a quota, but,
functionally is the same. And we think that's part of the problem.
COURT: Mr. Herr is there any evidence in the record that ties these 20 points to any
specific percentage, any target, any goal in (inaudible)?
MR. HERR: No. There is some information in the record suggesting that some time
ago the University President committed to have minority enrollment mirror the population,
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which we think is the racial balancing that is not permitted. But, they were careful not to make it
something that in our first deposition we just connect the dots, and summary judgment
(inaudible). We had to do a lot of work to prove how this system was devised and how it was
unconstitutional.
COURT: Do you agree with … no go ahead.
COURT: After all that work was done and once you got past the first deposition, did
you in fact tie this 20 points to some number, some specific target?
MR. HERR: Only that, that it was this concept of underrepresented. Implicit, I think, in
the concept of underrepresented is not as many as somehow the population would otherwise
dictate. And, I'm not sure that there is better detail than that.
COURT: Could I ask you the question that I asked … I'm sorry …
COURT: No it's fine. Go ahead.
COURT: That I asked your opponent. Is the determination of whether there is a
compelling governmental interest a legal determination or a factual determination?
MR. HERR: The understanding we set forth in front of the trial judge and -- both sides
agreed with that and that's why we said the case could be decided on, on that basis, on summary
judgment -- both sides said if it's a legal question, you should. Now I don't think that's what he
did. I think if you look at the trial judge's order here and you see fact finding about some of
these matters, not just the law. And that's more so on in the narrow tailoring area, but I still
think it is fact finding.
COURT: Counselor, your adversary directed us to a deposition of a Mr. Hunter,
which I have now found at least a page or two of in the record. I have not focused on it before,
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as a place where the 20 points came from. Do you have a view on that? Is that a good place to
look or do you have any view about Mr. Hunter's deposition?
MR. HERR: I believe that that is right. That he describes the process. He is a
statistical guy. And he describes the process as being, we wanted to design this 150 or some
number point scale to function the way the grid system did without using grids. So, they are
trying to recast the same unconstitutional form in a different form without a change of substance.
And I can't believe that's the constitutional law, even if it may be a perfectly interesting in
admissions system.
COURT: In your view, is the fixed 20 points for racial minorities more
constitutionally suspect than say a soft plus like the Harvard plan?
MR. HERR: Yes, because it is so dramatic, not in magnitude, but in how mechanical it
is. The Harvard plan, and this is a very important case or a its distinction, and I am glad you
asked the question. The Harvard plan talked about comparing individuals. Individuals don't
participate in the University of Michigan's undergraduate program. Individuals plus 20 points or
individuals without 20 points compete in the University of Michigan's system. What Harvard
had talked about … And you need to read the part at Harvard Plan that's attached to the Bakke
decision. It is very clear. Justice Powell thought there was something to comparing people and
reaching a conclusion that maybe a Black would be preferable to a White -- and those are the
terms he used -- in the circumstances comparing the two, in comparing to who's already in the
class. But, not at the front door, giving somebody 20 points and then going through the process
that way.
COURT: I know that you are out of time, but just quickly. Do you see the same kind
of constitutional problem in the University giving preference to children of alumni or in
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admissions preference based on geographic considerations or other situations that would
overwhelmingly benefit Whites and exclude other groups?
MR. HERR: There is sort of a two-level answer to that Judge Clay. First of all, I am
not aware of a constitutional provision that says you can't discriminate on the basis of alumni
status. So …
COURT: I'm saying, though, that it results in a racial ceiling of who gets admitted
based on preference consideration?
MR. HERR: If you have that situation, and that was the second part of my answer, you
could detect it, I think, on a disparate impact (inaudible) kind of analysis and that is something
that would be available, for example, to people that don't like how the SAT works. They could
chose to attack the school's use of the SAT. I would like for the …
COURT: Or the geography. I mean, if Northern Michigan got so many points that
you were letting in all the whites from Northern Michigan and not people from Southern
Michigan who were of different ethnicities, that would be at least a suit that could be brought.
MR. HERR: Right. You don't get to this racial strict scrutiny that you get where you
have 20 points because of race. I mean race is different under the constitution.
COURT: All right, thank you. All right, take a moment and shift positions.
END OF HEARING
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