IN THE SUPREME COURT OF THE UNITED STATES

BARBARA GRUTTER, Petitioner v. LEE BOLLINGER, et al., Respondents.

APPEARANCES:

MR. KIRK O. KOLBO, ESQ., Minneapolis, Minnesota; on behalf of the Petitioners.

GENERAL THEODORE B. OLSON, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondents.

MAUREEN E. MAHONEY, ESQ., Washington, D.C., on behalf of the Respondents.

(10:04 a.m.)

(CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 02-241, Barbara Grutter v. Lee Bollinger. Mr. Kolbo.

ORAL ARGUMENT OF KIRK O. KOLBO ON BEHALF OF THE PETITIONER THE WITNESS:

Mr. Chief Justice and May it please the Court:

Barbara Grutter applied for admission to the University of Michigan Law School with a personal right guaranteed by the Constitution that she would not have her race counted against her. That race -- that the application would be considered for free from the taint of racial discrimination. The law school intentionally disregarded that right by discriminating against her on the basis of race as it does each year in the case of thousands of individuals who apply for admission.

The law school defends its practice of race discrimination as necessary to achieve a diverse student body. With the loss -- with the diversity that the law school is committed to ensuring and meaningful numbers or critical mass, is of a narrow kind defined exclusively by race and ethnicity.

The constitutional promise of equality would not be necessary in a society composed of a single homogenous mass. It is precisely because we are a nation teeming with different races and ethnicities -- one that is increasingly interracial, multiracial, that it is so crucial for our government to honor its solemn obligation to treat all members of our society equally without preferring some individuals over others.

QUESTION: Well, of course, you -- I mean, a university or a law school is faced with a serious problem when it's one that gets thousands of applications for just a few slots. Where it has to be selective. And inherent in that setting is making choices about what students to admit.

So you have an element here that suggests that there are many reasons why a particular student would be admitted or not. And a lot of factors go into it.

So how do you single this out and how are we certain that there's an injury to your client that she wouldn't have experienced for other reasons?

MR. KOLBO: Well, Your Honor, first of all, race is impermissible because of the constitutional command of equality. The university is certainly free to make many different kinds of choices in selecting students. And to look for all kinds of different diversity, experiential diversity, prospective diversity without regard to race. But race because, Your Honor, of the constitutional command of equality, must be beyond the bounds --

QUESTION: You say that's not -- it can't be a factor at all. Is that it? Is that your position that it cannot be one of many factors?

MR. KOLBO: Our view, Your Honor, is that race itself should not be a factor among others in choosing students because of the Constitution.

QUESTION: Well, you have some -- some precedents out there that you have to come to grips with, because the Court obviously has upheld the use of race in making selections or choices in certain contexts, for instance, to remedy prior to discrimination in other contexts.

MR. KOLBO: Oh, absolutely, Your Honor.

QUESTION: All right.

MR. KOLBO: And I want to be clear about that. We are --

QUESTION: Well, but you are speaking in absolutes and it isn't quite that. I think we have given recognition to the use of race in a variety of settings.

MR. KOLBO: And we absolutely agree, Justice O'Connor.

QUESTION: Is it cause for concern with your -- if you're the dean of the law school or the president in the university or the Governor of the State that minority students, particularly from the black and Hispanic community are underrepresented by a large factor, according to their -- their share of the population. Suppose you have a law school with two or three percent Hispanic and -- and black students, is that a legitimate concern for the university and for the State officials?

MR. KOLBO: We believe not, Your Honor, for the reason that we need to get away from the notion that there's some right number for each racial group.

QUESTION: So if year after year after year there's an underrepresentation, there is no cause for the State or the Government or its educational experts to be concerned whatsoever?

MR. KOLBO: I wouldn't say not to be concerned, Your Honor, I think the mere fact of underrepresentation, that is that say, blacks are not represented as they are in the population is not a concern that would justify racial preferences. It certainly would justify perhaps broad social and political concerns.

QUESTION: Well, it's a broad social and political concern that there are not adequate members of -- of the profession which is designed to protect our rights and to -- and to promote progress. I would -- I should think that's a very legitimate concern on the part of the State.

MR. KOLBO: The current concern there, Your Honor, ought to be addressed by -- by addressing the problem. If there is some reason that -- that particular minority groups are not participating as fully in the fruits of our society such as being represented at the schools, we need to address those problems. But racial preferences don't address those problems.

QUESTION: Mr. Kolbo, may I call your attention in that regard to the brief that was filed on behalf of some retired military officers who said that to have an officer corps that includes minority members in any number, there is no way to do it other than to give not an overriding preference, but a plus for race. It cannot be done through a percentage plan, because of the importance of having people who are highly qualified. What is your answer to the argument made in that brief that there simply is no other way to have Armed Forces in which minorities will be represented not only largely among the enlisted members, but also among the officer cadets?

MR. KOLBO: Justice Ginsburg, I don't believe we have an adequate record in this case from which to conclude that we wouldn't have representation of minorities. The military in the absence of --

QUESTION: Suppose that were true. Let's take that as the fact, would you still say nonetheless even if it's true that there will be very few, if any, minority members admitted to the military academies, still you cannot use race?

MR. KOLBO: I believe race could not be used, Your Honor. I think that other solutions could be looked addressing the problem why there are not minorities in the military. I note that the United States has not taken a position. We have the brief as Your Honor has mentioned from several individuals, the United States has not taken a position in this case, the military academies have not taken a position.

QUESTION: Yes, they have, if the brief is accurate about the regulations, the academies have taken a position?

MR. KOLBO: As I understand it, Justice Stevens, the briefs are filed on the behalf of individuals.

QUESTION: I understand that. But they are quoting material that the academies have distributed, which indicate they do give preferences.

MR. KOLBO: Well, Your Honor --

QUESTION: Do you challenge the fact -- that that is a matter of fact?

MR. KOLBO: We don't challenge what they say, Your Honor. We're just suggesting -- we don't have a record in this case.

QUESTION: No, but do you challenge the fact that they are giving the preference?

MR. KOLBO: We don't have enough information on it to know whether --

QUESTION: Are you serious that you think there is a serious question about that? That we cannot take that green brief as a representation of fact?

MR. KOLBO: I just don't know, Your Honor, what the facts are with respect to the military because this case was --

QUESTION: It depends on what factor you're talking about, doesn't it? You accept the fact that they're giving preferences, but that doesn't convert to the fact that if they didn't give preferences, there is no other way to get an officer corps that includes some minority people, does the brief say that?

MR. KOLBO: It does not, Your Honor. We have no evidence as to what the extent of representation is.

QUESTION: The issue as I understand it is not whether without preferences there can be a military academy population with some minorities, the question is whether without the -- the weighting of race that they do in fact give, they can have an adequate number of minorities in the academies to furnish ultimately a reasonable number of minorities in the officer corps, that's the issue, isn't it?

MR. KOLBO: Well, Your Honor, again, the -- the terms you've used, reasonable and adequate, we have no information in this record on which I can make those --

QUESTION: More than what would happen if they did nothing?

MR. KOLBO: And that number, Your Honor, I don't know what it is. Again, because it wasn't part of this case. I think it's more --

QUESTION: More than what would happen if they did something else, such as making special provision for all people of economically disadvantaged background. We don't know whether that would have produced the same number, either.

MR. KOLBO: That's correct, Your Honor. As the Court --

QUESTION: Do you believe that that would be an adequate -- at least means of experimenting here -- take it as an alternative?

MR. KOLBO: Taking race neutral alternatives into consideration?

QUESTION: Well, taking for example economic disadvantage?

MR. KOLBO: Yes, Your Honor.

QUESTION: Do you seriously believe that that would be anything but a surrogate to race? It would take the word race out of the categorization of the label that we put on it, but do you believe it would function in a different way but as a surreptitious approach to race?

MR. KOLBO: It certainly functions differently, Your Honor. Race controls --

QUESTION: Do you think it would?

MR. KOLBO: Certainly, yes --

QUESTION: Is there any reason to believe that it would?

MR. KOLBO: I do, Your Honor, because it's not just minorities that are socioeconomically disadvantaged in this country. That happens with respect across racial lines. So race neutral alternatives --

QUESTION: The object -- but the object I would have assumed given the dialogue, the object is to increase the racial number of the percentage of minorities. If that is the object, then whatever it is, it's not a race neutral measure.

MR. KOLBO: Well, I would disagree, Your Honor, because I think if you have a race neutral means that accomplishes many purposes, and one of them is race, that is not necessarily under this Court's precedents unconstitutional. The Court --

QUESTION: Well, let me ask you this, it's about the military brief that you didn't come here to argue about, but it will maybe get you back to your case.

MR. KOLBO: Sure.

QUESTION: The military brief tells us -- the green brief -- that there are preparatory schools that the academies have and 40 percent of the registration in those preparatory schools are racial minorities.

And they -- suppose the Government does this and expends money for the purpose of recruiting and helping racial minorities apply to the academies and succeed there. Is that a proper constitutional purpose?

MR. KOLBO: I see no constitutional objection there, Justice Kennedy. For the reason I think it -- it's quite permissible in principle to draw a line between casting a wider net, recruiting and -- and the point of competition where people -- where people -- where the decision must be made whether people are going to be treated on the basis of the same --

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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