Barbara Grutter



Lee Bollinger, et al.,



Kimberly James, et al.,

                   Intervening Defendants,


)                     No.01-1447/1516


MR. PAYTON:         I want to reserve five minutes for rebuttal. (inaudible).

COURT:         It is granted.

MR. PAYTON:         Good afternoon again. I represent the University of Michigan Law School

and it's Dean Jeff Lehman, it's former Dean and current President, Lee Bollinger, and former

Director of Admissions, Dennis Shields, who are appealing the decision of the Court below. The

District Court took, I'd say, the remarkable position that no matter the educational judgment of

the Law School, that obtaining the first student body, including one that was racially and

ethnically diverse, was essential to the achievement of its mission and that no matter the

educational judgment of the Law School and in order to do that had to take racial ethnicity into


account, that the District Court could not really consider those judgments. Not that the District

Court disagreed with those judgments, because the District Court said in it's opinion that it found

that the benefits of racial and ethnic diversity as an educational matter were "important and

laudable." Nevertheless, the District Court found that irrelevant to what it could consider

because it said, and I am just going to quote, "the attainment of a racially diverse class is not a

compelling state interest because it was not recognized as such by Bakke and is not a remedy for

past discrimination." That's just wrong as a matter of law. And we think that starting there led

the Court to a whole series of errors. The standard is incorrect. But it caused the District Court

to then focus on whether or not we were taking race into account. And at various times it makes

a point of saying, therefore, when it looks at this that proves that we were really taking race into

account, and that we were really taking race into account. We take race into account. And in the

case of the Law School, we have a very well-crafted policy, drafted by a Committee of the

faculty in 1992 and adopted by the whole faculty that sets forth in detail why we do what we do.

What the mission of the Law School is and how that mission is effectuated through the selection

of the class, what factors are important, and how they are taken into account, and how …

COURT:         Is there any … in your view, is there any constitutional limit to the amount

to which race can be taken into account as long as it isn't set down in rigid numbers?

MR. PAYTON:         The interest … I think there is. And the way you go about figuring that

out is you look at the interest we are serving. And the interest we are serving is the compelling

interest of obtaining the educational value that comes from a diverse student body. And,

therefore, the measure of how much we can take race into account is no more than is necessary

to achieve that compelling interest.


COURT:         Okay, so the amount of preference, if we call it preference, is not

independently derived. It is the amount of preference sufficient to give you the goal that you


MR. PAYTON:         I would say the amount of consideration. We have considerations and

factors for a whole range of things …

COURT:         That it is a positive consideration --

MR. PAYTON:         It's a positive consideration.

COURT:         -- of some races and not of others. I mean --

MR. PAYTON:         Yes.

COURT:         -- if Heman Sweat had walked into the -- had been allowed to walk into

the Dean of the University of Texas and said Dean would you let me in if I were white? The

Dean if he were honest would have had to say yes. If Barbara Grutter walked into whom ever

the current Dean of the Law School is and said Dean would you let me in if I were black?

Wouldn't he have to honestly say either yes or pretty darn almost certain?

MR. PAYTON:         I will … I'm going to answer your question a little bit differently. If

Barbara Grutter were black, she would thereby have a completely different set of life

experiences. And then the answer to your query would be yes. Because, not because, I mean I

think it is not correct to look at this as an insignificant on or off. Our race matters and it matters

across all sorts of economic classes. Race matters in the United States. If we had someone who

was a black woman, who had otherwise an application that looked like Barbara Grutter, that

would be a different person with different life experiences that would have a different

contribution to our class.


COURT:         But, under your system, would it not be given, what her stats were --

which I think is 3.8 and 161 -- she would have been admitted whether she had grown up in the

inner city or Grosse Pointe. Isn't that basically right?

MR. PAYTON:         That's probably right. And the reason for that is that race affects the black

woman you just described whether she was in Grosse Pointe or in the inner city. That -- you

know you are not immune from how race affects you; you are not immune from how gender

affects you. Why just because you are in good economic circumstances versus poor economic

circumstances, I think that's the power of race in our country. Let me make the larger point that

I was trying to make earlier, which is we have a group of students that we conclude are fully

qualified to do the work at our University or at our Law School. What we have decided is from

that group of students to select those students to be on our student body that creates the student

body that enhances the education for all of the students. And that's why I am saying it is not a

preference, it's factors we take into account …

COURT:         Let me …

MR. PAYTON:         … all sorts of factors.

COURT:         Go back to the question I asked you before and you gave me a good

answer in the college, the mechanistic answer, about when you have a measure of diversity like

religion and you say look we have a proportion of Jews that is much larger than in the

population. We have a proportion of Southern Baptists that is much smaller than in the

population. Looking at it holistically, relative to what people are going to be like when they go

out into the world, we are going to give some holistic preferences to say that the Southern

Baptist's life experience probably is more different than the rest of our people in school. Would

that be all right?


MR. PAYTON:         Well, you know it's hard to actually say what goes in to all of those

judgments. At the Law School, every application is read front to back and decisions are made

whole person by whole person. In fact, in the undergraduate process every application is read

front to back. I understand that it's an effort to want to reduce it to mechanics; it doesn't reduce

to mechanics. Every application is completely read. Some substantial number, not a majority,

but a substantial number of those are flagged in the undergraduate case and then reviewed by an

Admissions Review Committee and, in that process, it's whatever they take into account that

causes them to make decisions. They throw away the points. So, the answer is we only look at

whole persons …

COURT:         Is there a flagging in the Law School system, because everybody in effect

is flagged because everybody is read?

MR. PAYTON:         Everybody is read. Everybody is read in both institutions. There is

flagging in the undergraduate. In the Law School it's one person who reads every single

application and makes judgments based upon the Policy that is written out in considerable detail

about the things we care about. And, you know, there are examples of students that have

backgrounds that are described you know as x and y in the Policy, so you can see actually the

richness of the decision making. At the trial, the Director of Admissions actually went over a

full file to go through exactly how she made a decision on a particular full file. And it takes

everything you just said into account.

COURT:         In your brief you attack some of the Larntz statistics by saying -- this is

page 41 of your brief -- by focusing exclusively on small cells of students with identical scores,

you ignore the many admissions factors that could not be quantified, such as strength of


recommendation letters or leadership ability. Do you assert that underrepresented minorities

systematically have stronger recommendations or leadership ability than non-minority students?

MR. PAYTON:         No.

COURT:         And is that anywhere in the record?

MR. PAYTON:         No. What Larntz does … I don't assert what you just said.

COURT:         Okay.

MR. PAYTON:         What Larntz does is he takes a cell and he has created a little model that

no one is pretending represents how we make decisions. So, he has a model. His model says

everyone in a cell that has grades of -- I'll give you a cell that they used -- 3.5 to 3.74 GPA, 1.64

to 1.66 LSATs, okay? And by his definition those are the only two factors and then race.

They're identical by his two factors, since they all fit into the same cell. In that cell there are 10

underrepresented minorities and they all got offers of admission. In that cell there are 173

others. And of the 173 others, 50 got offers of admission. And they say gee that's really an

impermissible use of race, because look, all of the minorities got in. It's 10 out of 60.

COURT:         There are a lot of other cells. I mean, if you look at all of those cells,

fundamentally the difference in percentages is 100 percent against 5 percent, 60 percent against 0

percent, 90 percent against 2 percent. Is there any other kind of factor that if you applied it to

that cell it would come anywhere close to those numbers?

MR. PAYTON:         Well, I think the point is that they are very small numbers. But 10 out of

10 and there is still 50 non-minorities who get in, is still 10 out of 10. And the other point I think

is that if you look at any individual decision, you would not say it was because of race or the

LSAT's or race, you would look at the whole application. And the point about the other factors

it doesn't take into account is that, when you look at the full file, you get the richness of the


person that was reviewed and offered admission. And it is not just because of the artificial cells

that Professor Lawrence is talking about; it's about the whole file review, done in coordination

with a very detailed Policy about who we want in our student body.

COURT:         Thank you Mr. Payton. Now time for rebuttal. We will hear from

Ms. Massie now.

MS. MASSIE:         Thank you, Judge Martin and members of the panel. I am Miranda

Massie. I represent the student Intervenors in Grutter. This case is about more than diversity.

What we are asking you to do is to uphold the program being challenged here on a basis that

promotes equality and integration. I come before with -- over there on the table -- some 50,000

petition signatures representing 50,000 plus Americans who have reaffirmed our national

commitment to Brown v. the Bd. of Ed…

COURT:         I think there is not a person on this panel that doesn't share the wealth of

that, but I don't think petitions are what decide lawsuits. We decide the case on the law and the

facts and we want it very clear that we are not policymakers. We are not a legislative body. We

are not the executive branch. We are the judiciary. We are struggling for identity across the

country in all of these cases. We are called upon to decide cases today no one would have ever

dreamed we would be asked to do. So, the petitions are not of any benefit in our decision

making. I think we prefer to hear from you the law of why what the University of Michigan Law

School is doing is appropriate and authorized under the Constitution.

MS. MASSIE:         And the petitions relate to that, if I may take one moment for a rejoinder,

because they are about the way in which the Supreme Court reshaped the notion of citizenship in

democracy in this country in 1954 when it decided Brown, and why that notion is still the notion

that should guide this Court in making its determination in this matter. We have made a lot of


progress since Brown, but we have not come far enough and we shouldn't squander the distance

that we have traveled. Bakke doesn't make sense outside of the context of Brown and other anti-discrimination

and anti-segregation cases. When the Supreme Court decided Bakke, what it said

was that the plans that the University had used to start to desegregate in the late 60's and through

the 70's were constitutionally impermissible. Justice Powell's rationale was a diversity rationale,

but reading his opinion, it is perfectly clear that it shot through with broader notions about

integration and equality. Because otherwise racial diversity isn't compelling; it's only

compelling if it's connected to integration and what the Student Intervenors' evidence showed at

the trial was that it's profoundly and inextricably bound up with integration and with social

progress in this country and that you can't understand the criteria on which the plaintiff bases her

proofs without reference to the inequality that the Brown Court sought to eradicate, the stigma

that the Brown Court sought to eradicate. Those numbers of LSAT scores and GPA's don't

mean the same thing for people of different races, because of bias and discrimination that they

capture. In Bakke, Justice Powell in his opinion invited evidence, he expressed frustration in the

fact that there wasn't record evidence on those criteria and how they imported racial bias into


COURT:         I'm sorry, those criteria were which the LSAT's and GPA's and --

MS. MASSIE:         Standardized testing …

COURT:         … standardized testing? Okay.

MS. MASSIE:         It was a medical school case, as you know, and this is a Law School case.

And this Court allowed student intervenors in, in part in order to address that gap in the Bakke

record and it was also (inaudible) …


COURT:         Okay. If I can ask you a comparable question, the one I asked before. If I

were to agree that you used the terms integration and equality, you used one more that I didn't

catch, but integration and equality justify giving a degree of preference, how would you

characterize the narrowly tailored side? That is, how do we know when we've gotten to

integration and equality? Is it proportion? Is it critical mass, is it … where do you get that


MS. MASSIE:         We support the University's position on critical mass that says I wouldn't

start to worry about whether we had gone too far until we had a rough representation of the

population in a school like the University of Michigan. Not a hard number, but rough

representation. Deviation from those numbers is some rough measure of the amount of

discrimination that has been …

COURT:         So the amount of deviation from rough proportionality -- rough

proportionality. I agree -- is the measure of the amount of discrimination that has been

imported? Did I hear you pretty much right?

MS. MASSIE:         Roughly, yes.

COURT:         Okay.

MS. MASSIE:         That's roughly right.

COURT:         I'll definitely give you roughly. Okay.

MS. MASSIE:         And, until we reach a point where we have rough proportionality, there

isn't any question that we haven't gone far enough. We think the University of Michigan Law

School needs more affirmative action, not less. It's not close enough to being integrated, though

it's made very, very important steps in that direction. And this is a basic question of citizenship

and democracy in this country. It always has been, since the earliest days of the nation.


COURT:         So, the numbers currently being admitted or offered admission in your

view is insufficient to meet the standard of integration and equality?

MS. MASSIE:         That's correct. That's absolutely correct Judge Boggs. And if I, might I

address your point about your Baptists.

COURT:         As far as I am concerned the Judge controls … she controls the


MS. MASSIE:         Might I?

COURT:         But I defer to my colleagues on many occasions and since you're

responding to a question of Judge Boggs, I will allow you to respond.

MS. MASSIE:         If there were bias and discrimination in the Law School entry criteria, such

that Baptists systematically did worse on them, and, if bias and discrimination against Baptists

had been a major impediment to social progress in our nation, then, yes, it would be fine. That's

what the diversity interest is. It has been narrowed over the years, but that's essentially what it

is, it's connected to questions of equality and we ask you to clarify that and bring that out in your

holding. Thank you.

COURT:         Thank you very much. Mr. Kolbo?

COURT:         Now, it is very hard for us to see these. If you are going to use charts and

graphs, the people in the back can't see it and the people downstairs can't see it, and that's too

small of a print for most of us to see it.

MR. KOLBO:         I'll be brief with them, Your Honor, to the extent I use them at all.

COURT:         To the extent they are in the briefs, most of us have the briefs and can read

them from the briefs. Are they in the briefs?

MR. KOLBO:         They are either in the briefs or the Appendix.


COURT:         So we know where they are. We have this wonderful staff. We've got

law clerks who can work into the late nights. And you show us the page, they will find it.

MR. KOLBO:         I appreciate that Your Honor. May it please the Court, Kirk Kolbo on

behalf of the plaintiff, Barbara Grutter, and the class that she represents. There are three general

areas I want to cover in my remarks this afternoon. First, I want to discuss why it is that the Law

School preferences are unlawful, even if one accepts the view that Justice Powell's diversity

rationale is controlling. We don't accept that, that rationale. That raises an argument about

narrow tailoring, that this system, the University of Michigan Law School's system does not

even comply with what Justice Powell approved. Secondly, I want to discuss the diversity

rationale itself and explain why it is we don't believe it is a (inaudible) of interest.

COURT:         Let me ask you one question on that though. If I am not mistaken that in

this opinion when Justice Powell attached the Harvard "plan," it was that Harvard College

Admission Program. Didn't the testimony of the Dean at the time, in Michigan say that that was

the plan that they had adopted?

MR. KOLBO:         Oh, yes, Michigan has taken the position that they have the Harvard Plan.

We don't think that is true.

COURT:         Okay, how is it different?

MR. KOLBO:         Well, in a number of respects.

COURT:         Well let's start with one.

MR. KOLBO:         Well, first of all the Justice Powell in our defense did not provide for

something in the nature of a functional equivalent to the quota. We believe that is what the Law

School operates. It is not necessary to have it written down that you have a quota. Nor do you


have to have an explicit written policy that says you have a quota. Justice Powell concluded, that

is, you can have something about race…

COURT:         Isn't the problem with that counsel that we simply don't know what the

Harvard plan, whatever that was, or Justice Powell's application of it meant quantitatively. You

can read Powell's decision and you can say it means a tiebreaker, like in the Taxman case, or it

means something so large that every qualified, minimally qualified person gets in. And we just

have no way of getting directly out of Powell how big that amount is. Isn't that the real problem


MR. KOLBO:         That is exactly right Judge Boggs. We, of course, take …

COURT:         But it's a problem because we do have to take Justice Powell's opinion as

the opinion of a Supreme Court Justice, and we have to analyze it for how much binding effect it

has, and we have to ascribe some meaning to it. We can't just say it's incoherent; therefore, we

won't obey it.

MR. KOLBO:         Well, that's correct. But what our position is, of course, is that the opinion

of one Justice is not the opinion of the Court.

COURT:         Well, now, that's the disagreement that we have on interpretation too. Did

in fact Justice Brennan really adopt it, or did he not? I mean, there are Courts that have gone all

over the map on that issue too.

MR. KOLBO:         We think that it is clear he did not. And he said several times that he

would endorse something like the Harvard plan, so long as it arose from the lingering effects of

past discrimination. He said that actually several times in his opinion. So he conditioned

approval of the Harvard plan on remedying past discrimination in that respect because the


University of Michigan Law School's plan doesn't even pass muster under Justice Brennan's


COURT:         Well, but it said -- the qualifying phrase, however, modifies when race

may be used. As in at least so long as necessitated by the lingering effects of past discrimination.

It does not modify the why it may be used.

MR. KOLBO:         Well, what I have is a quote right from Justice Brennan's opinion.

COURT:         That's what I am reading from as well.

MR. KOLBO:         We agree with Mr. Justice Powell, that a plan like the Harvard plan is

constitutional under our approach at least so long as the use of race to achieve an integrated

student body, is necessitated by the lingering effects of past discrimination.

COURT:         Right.

MR. KOLBO:         That's not the rationale the University of Michigan has.

COURT:         Well, I thought that's what the Dean testified to.

MR. KOLBO:         The Dean testified that they believe that they have the Harvard Plan. He

certainly did not testify, Chief Judge Martin, that they have adopted a new, or what they are

doing is eliminating past discrimination…

COURT:         Was the question put to him, is the plan necessitated by past


MR. KOLBO:         I think there were several occasions the University of Michigan Law

School witnesses that made it clear that that is not what the policy is based upon. In fact, they

dropped a footnote to that effect in one of their briefs in response to the Intervenors' brief. It is

very clear and they are not relying on rationale. The University is relying only on the diversity



COURT:         Well, counsel, you know, you say that Brennan didn't adopt Powell's

theory as diversity as a goal in itself. But how do you deal with Brennan's comment in the

Metro Broadcasting case in 1990. Now, I quote from that. He says that just as a diverse student

body contributing to a robust exchange of ideas is a constitutionally admissible goal on which

race conscious University admissions programs may be predicated, and he cites Bakke, the

diversity in views and information on the airwaves serves important First Amendment values.

Doesn't he, in effect, say there that he would go along with Powell's rationale.

MR. KOLBO:         No. He said nothing there about whether diversity is a compelling

governmental interest. He described it as something constitutionally permissible. And the Metro

Broadcasting Court had a very different view about what was constitutionally permissible. That

it was sufficient to have an important interest, for an important interest for something to justify

race preferences. They were not talking about the racial diversity in higher education. He is not

talking -- Justice Brennan was not talking about diversity as a compelling governmental interest.

COURT:         But he's saying that a diverse student body is a constitutionally

permissible goal?

MR. KOLBO:         But the Metro Court had very different views under our modern equal

protection analysis about what could be constitutionally permissible. Metro Broadcasting found

it sufficient that it might just be important. We know after Adarand that it has to be more than


COURT:         He changed it to strict scrutiny.

MR. KOLBO:         Exactly.

COURT:         But that doesn't mean that what his comment about the Bakke case doesn't

change because Adarand later changed it.


MR. KOLBO:         What must be demonstrated is that diversity is compelling. Justice

Brennan is not saying in that quote from Metro Broadcasting that diversity is compelling. He is

suggesting it may be constitutionally permissible and he referred to that Court's lower standard,

which is not the compelling interest standard. So, I don't think you get … you don't get

agreement that diversity is a compelling interest.

COURT:         Would you agree that at a minimum, five Justices in Bakke tell that you

cannot say zero consideration of race?

MR. KOLBO:         I would agree …

COURT:         For two different reasons, but five of them did agree with that minimal

proposition, did they not?

MR. KOLBO:         Five Justices agree that there are some circumstances where race can be

used, and we agree with that. But the ultimate question still has to be for what purpose.

COURT:         How do you deal with Justice O'Connor in what is it, Wygant v. Jackson

Bd. of Education? She quotes as saying "although it's precise contours are uncertain, the state

interest in the promotion of racial diversity has been found to be sufficiently compelling at least

in the context of higher education, to support the use of racial considerations and furthering that


MR. KOLBO:         She wasn't saying the Court as a whole had made that decision. That's a

true statement with respect to Justice Powell. Justice Powell has concluded that diversity is

compelling. And she is speaking only for herself, Judge Gilman. She is not speaking for the


COURT:         That is her view, though, of what she finds the Bakke case stands for.


MR. KOLBO:         I don't read that to say that Justice O'Connor has concluded, that Justice

O'Connor has concluded that diversity is compelling. I read that to say that someone has found

evidence and that's a true statement. Justice Powell, the only Justice who actually wrote for

himself, had concluded that diversity is a compelling interest. I don't think that, by any means,

that that answers the question. If a case like this gets in front of the Court, the Supreme Court, I

guess Justice O'Connor will be able to speak to that, but I don't believe that she's answered the

question in that particular vein. If I may, I started to talk about how this case demonstrates and I

want to talk about diversity as well, but this case makes it perfectly clear that, even if you accept

the Justice Powell rationale, that this system is not lawful. The is … Judge Boggs made the

point that we have to search and find out exactly what Justice Powell meant. And if we accept

his views as controlling, that is certainly right. He said a couple of things in his opinion. One, is

he said that applicants of different races must be able to compete on the same footing, that there

must not be systematic exclusion. We think the evidence rebuts in this case. And Judge

Friedman correctly found, and its overwhelming, that on this case and applicants from different

races at the University or at least the Law School do not compete on the same footing. In any

specialty …

COURT:         Isn't that true only within certain parameters? That is to say, the grids are

not the be all and end all. But isn't it sort of effectively truthful to say that at the high end race

makes no difference, and at the low end race makes no difference, and in that central area

effectively you look out and you pick 10 people who are going to get in and they are

overwhelming minority?

MR. KOLBO:         I think that …

COURT:         Isn't that really what is happening?


MR. KOLBO:         I think that is an unfair characterization. At the very highest end race

doesn't matter much, but at the very lowest end everybody is pretty much kept out. But the

middle range is very hard. It can span from a 156 LSAT up to a 163 or 164, with the GPA of


COURT:         Although most of the people who are, in fact, admitted could be said to be

in that higher end, aren't they?

MR. KOLBO:         Well, they are at least in the middle. I would say most of the admittees,

Judge Boggs, fall between a 3.0 and above…

COURT:         My recollection, correct me if I am wrong, is that, if you look at the ones

that are finally admitted, most of them come from cells where virtually everyone is admitted.

There are still quite a lot below that, but probably a majority comes from those areas where

virtually everyone is admitted.

MR. KOLBO:         Yes, especially if you are looking only within racial groups. But for

example, Judge Boggs, if you start taking a look at a LSAT score of say 159 to 163, and a GPA

that is 3.0 or 3.5, you will see that a very, very small percentage generally of white students and

Asian students are admitted whereas a very, very high percentage of …

COURT:         Sure, those are your nicely colored blocks on page 13 to 15.

MR. KOLBO:         Exactly. And those are really exemplary, they are certainly typical and

representative, but there are many, many of them and what that goes to demonstrate, we believe,

is the systematic exclusion that applicants, on the whole. And Mr. Payton likes to isolate one

cell here and one cell there. This is very systematic. It pulls out cell after cell, year after year.

These grids are far more eloquent than I can be. They tell the story. We have statistical

evidence. We have other live testimony. But the grids really tell the story. And what we have


here is a double standard in admissions. Justice Powell didn't approve of that. That can't be

what he meant when he talked about competing…

COURT:         Would you have a problem if those numbers were, I'm not holding you to

anything, but if they were a fair bit closer? If it was 70 percent against 50 percent or 50 percent

against 30 percent? You would say look they are reading the whole file and they are saying that

Blacks do have a different experience in America and getting in there does mean something


MR. KOLBO:         I think you could imagine a case where they look relatively close and that

might present a tougher question, because ultimately you may be talking about what really is a

comparable student. But here the question is answered very easily. It is not even close here. We

have applicants again with scores for just the difference of race, nothing else in a record explain

what the difference is. Nothing but race can explain how it is that cell after cell at 90 percent,

100 percent position rates for designated minorities, and zero, 5, 10 percent admission rates for

the vast authority of the white students and Asian students. That's a double standard.

COURT:         Is that what Powell says in Bakke when he says race is okay to be a plus?

And if it didn't make some difference, it wouldn't be a plus.

MR. KOLBO:         A plus could then be as heavy as you want it to be under that analysis. I

don't think that is what he intended. And I think that he made that clear by stating that

applicants with different races must be able to compete on the same footing. I simply say you

can't look at these grids, you can't look at these grids and candor…

COURT:         Are you claiming there is a two-track admission system in the Law


MR. KOLBO:         In effect, in effect there are different standards.


COURT:         It's not like Bakke though is it?

MR. KOLBO:         It's not …

COURT:         The University of California Davis actually set aside 16 seats.

MR. KOLBO:         No, it's not as formal. Like Justice Powell said, it doesn't have to be.

You can have something that's the functional equivalent of a quota and that's what the Law

School has.

COURT:         Do you think it is sort of a wink and a nod system that the Law School's

got here?

MR. KOLBO:         I don't know if it's a wink and a nod. I think that the Law School has

been careful and that's why they articulate some things. They don't articulate it quite as bluntly

as they do at the undergraduate school, but the evidence is still there…

COURT:         Counsel, there is some controversy about just how much seeing eye there

is in this system. You have people, your evidence as I understand it says the underrepresented

minority figure never fell below 10 or 11 percent. Your adversary in his brief has some

references that in some years it was as low as 5.4 and some years it was as high as 19.2. Can you

reconcile those arguments?

MR. KOLBO:         Yes, Judge Boggs. I don't think that is a discrepancy at all. That is a

reference to admissions statistics and enrollment statistics on one hand, and graduation statistics

on the other. In a case of enrollment statistics you will find this in Exhibit 98, that it is a

summary of admissions from 1987 up through 1998. And the testimony on this is that the

enrollment for underrepresented minorities has never fallen below 11 percent. That is

undisputed in this case. It is has been a range between 11 and 17 percent. That, in our judgment,

is what, is the …


COURT:         I think except for one year it was more like 11 to 15 percent. I think there

was one year that was a little higher, but mostly pretty tight, wasn't it?

MR. KOLBO:         When I say 11 to 17, I believe it crosses all those years, it's 17 is the


COURT:         Right, I said I think that was one, that's page 5065 as well as elsewhere? I

think it appears in several different places.

MR. KOLBO:         Yes, Exhibit 98 is what I had written down (inaudible).

COURT:         Okay.

MR. KOLBO:         The other reference to that clause you made was to graduation statistics.

And, of course, and Judge Freeman looked at both of these. It's not true as the Law School

suggests in their brief that had he only relied upon graduation statistics. He makes it very clear

in his opinion that he also looks at …

COURT:         Is it at page 49 of their brief, your adversary's call that enrollment rates?

But you say it is graduation rates?

MR. KOLBO:         When they are talking about something as low as 5 percent …

COURT:         The sentence at the top of page 49 says a widely discrepant enrollment

rates ranging from 5.4 to 19.2 percent.

MR. KOLBO:         My recollection -- I don't have that brief in front of me -- my recollection

was that the Law School took Judge Friedman to task for looking at graduation statistics.

COURT:         Okay.

MR. KOLBO:         And I think the evidence, I think Dean Lehman admitted in his testimony

that it has never fallen below 11 percent. Of course, graduation statistics, you can't control what

happens with respect to attrition …


COURT:         But, the major Law Schools in the United States, now the attrition rate is

almost zero.

MR. KOLBO:         Well, we don't know what -- I'm not sure what …

COURT:         I mean that's just anecdotal, I mean -- unless you offered it as proof of

some facts, it's generally recognized. I mean we all get thousands of applicants for law clerks,

and they send us all the statistics from the Universities and so forth. And you know they admit

400 and they graduate 401.

MR. KOLBO:         We don't --

COURT:         I have not ever understood that.

MR. KOLBO:         We don't take issue. We don't think that the …

COURT:         I mean isn't the issue in this case is really trying to tell the University's Law

School admission committee that they are admitting someone using a quota and not using valid

data? That's the issue, not how many graduate.

MR. KOLBO:         Well, we don't think the graduation statistics are very helpful statistics,

your honor …

COURT:         I agree.

COURT:         No, but it's the adversary whose arguing that. They are arguing that it

can't be a quota because it dipped as low as 5 percent. And that data shows that the Class of

1998 for whatever reason, that one class entered with 29 African-Americans and graduated 10.

That's what the record shows.

MR. KOLBO:         This lawsuit only challenges the Law School's admissions policies. What

we are saying is that they have a quota in terms of admissions, that they wanted enrollments to

be somewhere between and the evidence shows 11 to 17 percent. And that is not important, even


Justice Powell (inaudible) and the evidence on that is undisputed. The lawsuit does not dispute

that enrollments have ranged or in that range 11 to 17 percent (inaudible) --

COURT:         Let's see what your adversary says.

MR. KOLBO:         And if I may I would like to spend some time on the diversity rationale. I

see my time is expiring. I want to make some points very clear on that. The Law School acts as

if it is enough to demonstrate that there is something good about diversity. And we are not here

to challenge whether or not diversity could be something that is good. But that's not enough.

We are here to talk about constitutional jurisprudence and the Supreme Court has made it clear

under strict scrutiny analysis that it is not enough for something simply to be good or important

in order for it to constitute a compelling governmental interest. Now, I can be very specific

about that. We know everyone in this court room agrees that it's a good thing, it's an important

thing, it's a valuable thing for this country to do things to remedy its long history of past racial

discrimination. But we also know as a matter of law, and the Supreme Court has made this very

clear, that however meritorious that interest is, remedying societal discrimination (inaudible) is

not an interest that is sufficiently compelling to constitute a compelling interest. It cannot rise to

the level of a compelling interest. And the reason, the Court has said, is simply too amorphous.

It is ill-defined and timeless in scope. It simply cannot, no matter how good it is, support racial

preferences. And the Court made that very clear in Croson. The very same analysis incidentally

can be applied to the diversity rationale. The diversity rationale, as articulated, is extraordinarily

amorphous. Judge Boggs asked Mr. Payton a question about is there some limit on how much

you can use race in the process? If there is some standard in other words? His answer was you

could use it as much as necessary. That just goes to show you how amorphous, how ill defined,

how timeless this concept is and why it cannot, for the same reason that remedying societal


discrimination (inaudible) it cannot, as a matter of law rise to the level of a compelling

governmental interest. For another example, the Court in Wygant clear, and I think we all agree,

that providing role models to minority children, to under-privileged children is a good, worthy

thing, an important objective. But we know as a matter of constitutional law that that is not

something that can support, that can raise to the level of a compelling governmental interest.

Again …

COURT:         If it did, you would think Taxman would have gone differently at the

Circuit and people wouldn't have thrown in the towel on that.

MR. KOLBO:         Exactly. And it simply is not enough to say that there is educational

advantage to diversity, that is a good thing. That does not answer the question. And it doesn't

answer it to say that there is academic freedom to engage in race discrimination. The Courts

have never recognized a right, a First Amendment right to engage in the practice of race

discrimination. Certainly not by governmental entities. The Board of Education in Topeka,

Kansas didn't have a First Amendment right. They didn't have a right of academic freedom to

engage in discrimination and to keep out Linda Brown. The University of Mississippi didn't

have the right of academic freedom to keep out James Meredith. And the University of

Michigan does not have a right based on academic freedom to practice race discrimination. And

that's the principle we hope this Court will uphold. And we ask that you affirm Judge

Friedman's opinion.

COURT:         Thank you very much. Mr. Payton.

MR. PAYTON:         I want to respond to just a couple of the points that Mr. Kolbo made.

First, on the issue of enrollment statistics or admissions statistics, what we were responding to in

our briefs, I think there is no doubt about this, is that the court below said that we were operating


with a something close to a quota. And the only support in the Court's opinion for that

statement, the only support, is footnote 26, and it says the percentages range from a low 5.4 in

1998 to a 19.2 in 1994, but the mean percentage of under represented minority students from

1986 to 1999 was 12.6. And he says that's a quota from 12 to 13. He just did an arithmetic

average of something that clearly spread all over the place. And what we said was that simply

can't be correct. The data is correct, but then to average it out and say that is a quota, that's just

incorrect legal conclusion from data that is not disputed …

COURT:         Is that data based on graduation rates, though, as opposed to admissions?

MR. PAYTON:         It was enrollment maybe graduation. All I am saying is that the Court …

COURT:         That's a big difference.

MR. PAYTON:         It is a big difference. But the court's conclusion that we have a 12 to 13

percent quota is based on only this.

COURT:         But do you have any disagreement that, in fact, each of the years from the

early 90's on -- actually from 1992 on, but it goes back further than that -- the percentage from

the chart of Native American, African American and Mexican Americans was 11 to 17 percent?

MR. PAYTON:         Yes, we don't, look the number of people we make offers of admission to,

from underrepresented minorities has varied across time. It's not the same and it varies within

ranges just like that. The witnesses at trial were asked if they …

COURT:         But you made a big point in your brief that 5 percent to 19 percent

couldn't be considered a fixed rate …

MR. PAYTON:         Because the court below …

COURT:         11 to 13 …


MR. PAYTON:         … but that's because the court below relied on that spread to reach the

conclusion that he reached. That's just wrong. The spread from 11 to 17 or 10 to 17, that's an

enormous spread. I am not taking an issue with the fact that what we do across time varies, that

COURT:         That never falls below 11?

MR. PAYTON:         But there is always going to be a point below which something doesn't

fall. We are not claiming that …

COURT:         So Harvard limited, as it did, the percentage of Jews to 15 percent, the fact

that it was 15, 17, 18, 14, that's not a quota, that's just a range.

MR. PAYTON:         No, I think that is actually, I think this is a good point. You raised a very

good point Judge Boggs. What Justice Powell says in Bakke is that as long as you proceed in

good faith to do this in sort of a unitary system so that everybody competes against everybody,

that's okay and you have a good faith protection that the Court won't second guess. But, if what

you do, and this is in footnote 53, if what you do is the systematic exclusion, then you have

forfeited your good faith entitlement. Now …

COURT:         So, we have to find your good faith to give you that?

MR. PAYTON:         No, we exclude no one. We operate exactly as Bakke contemplates …

COURT:         The Harvard plan in the 30's -- Counsel I am reading from a bio of a

recent Harvard President -- said Harvard would lose it's character as a democratic national

university, growing from all classes of the community and promoting a sympathetic

understanding among them. That sounds exactly like your plan. And that was the basis for

having everybody compete, but always making sure that Jews weren't too large of a percentage


of the Harvard enrollment. Isn't that what you are doing? You are making sure that the non-minority

percentage is never too large?

MR. PAYTON:         This is what I think Powell says explicitly in footnote 53. That if you are

acting to create a diverse class that is broadly diverse, and you do it in a way he sets forth, that is

protected. And that's constitutional. If, however, what you do is systematically exclude, say

what happened to Brown v. Board of Education or Sweat v. Painter, or Runyon v. McCrary, or

VMI, those are systematic exclusions, then you forfeit that. And I think that if you said well

what we want to do is make sure we exclude some number of folks, then I think that's footnote

53. We don't do that at all. Mr. Kolbo says that, gee, you can't pursue diversity as compelling

interest because, you know, there are good things but you just can't do them. And he says take a

look at societal discrimination. In the same opinion, that is Bakke, it is in that same opinion that

Justice Powell says societal discrimination is too amorphous. In that same opinion he says

diversity is not. So, I hear what he is saying, but Justice Powell confronts that head on and says

diversity is compelling governmental interest. I agree that it has clearly been recognized by

Justice Brennan and they all made it clear that the Harvard plan was something they all found

constitutional in Bakke and that's exactly what we do. There is no discernible distinction made

by the plaintiffs between what we do and what happens in the Harvard plan.

COURT:         Thank you very much Mr. Payton. Excellent argument in all three cases.

We appreciate very much the presentation. We also appreciate the audience's understanding.

You have been most cooperative. That makes our work far, far easier. We hope that it has been

a challenging afternoon for everyone and on that note we will have …



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