Grutter v. Bollinger—U.S. Supreme Court
Argument in support of petitioners

General Olson, we'll hear from you.

AS AMICUS CURIAE,

IN SUPPORT OF THE PETITIONERS

GENERAL OLSON: Mr. Chief Justice and may it please the Court:

The Michigan law school admissions program fails every test this Court has articulated for evaluating governmental racial preferences. First, it is --

QUESTION: General Olson, just let me get a question out and you answer it at your convenience. I'd like you to comment on Carter Phyllis brief. What is your view of the strength of that argument?

GENERAL OLSON: Well, I'm not sure --

QUESTION: That's the one about the generals and about the military academies.

GENERAL OLSON: I understand -- the -- our position with respect to that is we respect the opinions of those individuals, but the position of the United States is that we do not accept the proposition that black soldiers will only fight for -- black officers or the reverse that race neutral means should be used in the academies as well as other places.

And that to the extent that there's any difference in analysis, the Court might consider its position, the position it articulated in connection with the military in Rostker v. Goldberg. But our position with respect to that brief is that --

QUESTION: Your suggestion is that the military has broader latitude than the private university?

GENERAL OLSON: No, I'm suggesting that --

QUESTION: Well, you're pointing to Rostker suggests that.

GENERAL OLSON: Yes, I'm suggesting that the Court will want to look at each of these individual situations according to the circumstances and that may be a factor in that context. But I started my answer, Justice Stevens, by saying you do not accept the proposition that race neutral means should not be used and employed fully to -- to make sure that the academies are accessible and open and -- and offer opportunities for as many people as possible.

QUESTION: But you recognize, General Olson, that here and now, all of the military academies do have race preference programs in admissions?

GENERAL OLSON: The Coast Guard does not. It's prohibited by Congress from doing so. I do acknowledge, Justice Ginsburg that the other academies are doing so.

It's the position of the United States --

QUESTION: Is that that's illegal what they're doing?

GENERAL OLSON: Pardon me?

QUESTION: Is it -- that it is illegal, a violation of the Constitution?

GENERAL OLSON: We haven't examined that and we haven't presented a brief with respect to the specifics of each individual academy. And we would want to take into consideration any potential impact suggested by the Court in the Rostker case.

QUESTION: What do you -- what do you think is the -- is the principal race neutral means, that the academy should use?

GENERAL OLSON: Well -- QUESTION: Without criticizing necessarily what they're doing now, what would be the -- in your judgment, the best race neutral way for them to go about reaching your objective?

GENERAL OLSON: Well, there are a variety of race neutral means and narrowly tailored methods by which academies and universities can reach out to people of all backgrounds to make sure that they've eliminated --

QUESTION: No, no. I realize your position.

But specifically, which -- which of the race neutral suggestions that have been considered do you think would be, you know, most adaptable to the academy situation?

MR. KOLBO: Widespread recruiting, making sure that there's opportunities for education and advancementin the -- in the academies.

QUESTION: Recruiting with an objective of minority students?

GENERAL OLSON: Not limited, a race neutral system of broad scale recruiting that this Court has always supported the proposition that efforts may be made by governmental institutions to eliminate barriers that have existed where artificial barriers --

QUESTION: Okay. But my question is, if they don't do it with a racial objective, how does the recruiting respond to the position taken in -- in Mr. Phillips's brief that without the kind of -- of racial weighting and admissions that is given now, they simply will not reach a -- a -- a substantial number of -- or be able to attain a substantial number of minority slots in the class?

GENERAL OLSON: That is the opinion of certain individuals. It is -- we do not accept that conclusion based upon those opinions. And this Court has repeatedly held that race neutral means must be demonstrated and will be accepted, and will not -- and the Court will not accept the proposition that race neutral means will not be successful unless they've been attempted and demonstrated. These -- this program that the University of Michigan Law School fails every one of the Court's tests. First, it's a thinly disguised quota which sets aside a significant portion of each year's entering class for preferred ethnic groups.

Secondly, it overtly employs stigmatizing and divisive racial stereotypes, what the law school calls diversity-relevant characteristics. It identifies persons by diversity-relevant characteristics.

QUESTION: Well, what they do is they use race. GENERAL OLSON: Exactly.

QUESTION: I know. But they have a reason for it. The reason for it is they want to produce a diverse class and the reason they want to do that, using it as a plus, they say, is to do the things I said before. They think it breaks down stereotypes within the class. They think it's educationally beneficial. They think it supplies a legal profession that will be diverse and they think a legal profession like business and the military that is diverse is good for America from a civics point of view, et cetera, breaks the cycle. Those are the arguments which you well know. So what is your response?

GENERAL OLSON: Well, a response to those many arguments is that they've -- they're using stereotypes to in an effort, they say to break down stereotypes, they're using race as a -- a surrogate for experience. And if they want to look at experience, they can look at experience. If they want to improve the educational opportunities of minority groups, one of the biggest problems --

QUESTION: That's not what they say. They say they're not using race as a surrogate for anything, because if you have a person who went to Exeter who's very rich and happens to be black and is a conservative Republican, it's great for the class to know that, too. And that's why they want a certain number.

GENERAL OLSON: But that person -- that person if he went to Exeter and he has a great GPA and so forth gets an extra opportunity either a portion of the class is 15 set aside for that individual solely on the basis of race, irrespective of his experience. And the -- and the application isn't examined for the type of experience or the type of viewpoint that race-diversity characteristic is used as a substitute for any examination of the individual on the individual.

QUESTION: General Olson, do you -- do you agree with the articulated proposal of Justice Powell in the Bakke case of using race as a plus factor as he -- as he saw the use of it? Do you disagree with that approach?

GENERAL OLSON: We disagree with that approach in the sense that we -- we -- in the first place, contrary to what our opponents have said, we would not believe that that single opinion, which was the only opinion, to examine the issue of diversity under a compelling argument --

QUESTION: I don't think it commanded a court. I'm just asking if you agreed with that approach.

GENERAL OLSON: We're reluctant to say never, Justice O'Connor. But this test -- every test that Justice Powell applied in that opinion, the law school program here fails. It's a stereotype.

QUESTION: But General Olsson, is race different from sex in that regard? I thought we have -- we have disapproved using sex as just a plus factor? That is one factor among many, but, you know, when you get down to it, this is -- this person is a male and therefore we'll put that into the mix and that'll favor the person. We've disapproved that with regard to sex discrimination, haven't we?

GENERAL OLSON: I don't disagree with that.

QUESTION: Why would race discrimination be any different?

GENERAL OLSON: I'm suggesting that the programs here, without getting to the point of whether are there any other circumstances whether they be remedial, which this Court -- a factor of the Court has recognized before, or something else in an unusual situation, where it could be appropriate. I don't know what that might be. But this test --

QUESTION: I think Santa Clara -- I think what Justice Scalia said bears modification, because in fact in Santa Clara, the highway dispatcher, there was a plus for sex, although there was no proven discrimination against that particular woman and this Court approved that.

GENERAL OLSON: I would also say that it's conceivable if you're constructing -- the National Institutes of Health is constructing this study of diseases that focus on particular races, the race may be a factor but the fact is that the law school program here, not only is a set aside and a quota, but it -- but it --

QUESTION: General Olsson, I'm not sure you answered Justice O'Connor's question.

Do you agree with Justice Powell's suggestion that race could be used as a plus in something like the Harvard program?

GENERAL OLSON: No, the Harvard program A wasn't examined aaccording to to any compelling governmental interest. It was examined only --

QUESTION: So your answer is no, you would not agree with that?

GENERAL OLSON: We would not based upon any what we see in that opinion, which is --

QUESTION: Would you disagree with his use of the term diversity as being a permissible governmental goal?

GENERAL OLSON: Well, the only way to answer that Justice Kennedy is that the word diversity means so many things to so many different people. It means both a means to get experience and a diversity of experience. It also means, I think what the law school has done, it's an end in and of itself. If it's an end in and of itself, obviously it's constitutionally objectionable that this Court --

QUESTION: So is the Texas plan constitutional? If it's designed solely in order to have a diverse mix in the colleges they takepercent, but their motive stated and their purpose is to have diversity in the college?

GENERAL OLSON: Justice Breyer, I don't believe that that is the stated motive of the Texas plan or the California or the Florida plan. Those are intended to open up those institutions to a broader selection, one of the ways in which this Court has accepted the institution such as universities may operate is to make sure that barriers are broken down, accessibility is made more available and that is one very race neutral means of accomplishing that legitimate objective.

QUESTION: General, what do you say to the argument that the only reason accomplishes it is because it depends on segregation at the lower level of the schools, otherwise it would not accomplish that?

GENERAL OLSON: No, there is no evidence that it depends upon segregation of the schools in Texas or in any other place.

It is a diverse selection of the high schools in that state.

QUESTION: Thank you, General Olson.

This excerpted transcript of the oral arguments before the Supreme Court in Grutter v. Bollinger and Gratz v. Bollinger was recorded by the Alderson Reporting Co.

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