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Grutter v. Bollinger—U.S. Supreme Court QUESTION: Is it fair to say that the -- what the -- what -- what justice Powell and the five who agreed or the four who agreed on the Harvard plan were getting at was that there is a permissible zone between a purely token number and a quota or a set aside and you can shoot for something in that zone? Is that a fair -- MS. MAHONEY: Absolutely Your Honor. What justice Powell's opinion says when paraphrasing the Harvard plan is that there needs to be an awareness of the necessity for more than token numbers. And that's because the educational benefits of diversity can't be achieved. QUESTION: It's hard to see that that's -- that's true here, when every day the admission staff looks to see what the numbers are based on race? MS. MAHONEY: Your Honor, that's not correct. The -- there is a report which is called the daily. But it is not looked at everyday. The evidence was clear that it is simply something that can be printed out. QUESTION: You just have a daily report that they look at once a week? MS. MAHONEY: Your Honor, the reason it's called a daily is that it is a running database that allows for the report to be printed at any time. And -- and the evidence indicated that -- QUESTION: To show how well they're doing in getting the so-called critical mass which is just a SPHOPL for a number? MS. MAHONEY: Your Honor, the details actually track a whole variety of admissions information including deposits, they're trying to see how they're doing in terms of whether -- QUESTION: They -- they don't track, as I understand it, the other pluses that the University talks about? MS. MAHONEY: Well, they track -- they track residency, they track gender, they don't track, for instance, socioeconomic status which is a plus or, in fact, the evidence is uncontradicted the University takes any racial background, any ethnic background, any unusual characteristic that would add to the diversity of the class into account, but it doesn't find a need to track that, because of the nature of the applicant pool. QUESTION: Is 2 percent a critical mass, Ms. Mahoney? MS. MAHONEY: I don't think so, Your Honor. QUESTION: Okay. 4 percent? MS. MAHONEY: No, Your Honor, what -- QUESTION: You have to pick some number, don't you? MS. MAHONEY: Well, actually what -- QUESTION: Like 8, is 8 percent? MS. MAHONEY: Now, Your Honor. QUESTION: Now, does it stop being a quota because it's somewhere between 8 and 12, but it is a quota if it's 10? I don't understand that reasoning. Once you use the term critical mass and -- you're -- you're into quota land? MS. MAHONEY: Your Honor, what a quota is under this Court's cases is a fixed number. And there is no fixed number here. The testimony was that it depends on the characteristics of the applicant pool. QUESTION: As long as you say between 8 and 12, you're okay? Is that it? If you said 10 it's bad but between 8 and 12 it's okay, because it's not a fixed number? Is that -- that's what you think the Constitution is? MS. MAHONEY: No, Your Honor, if it was a fixed range that said that it will be a minimum of 8 percent, come hell or high water, no matter what the qualifications of these applicants look like, no matter what it is that the majority applicants could contribute to the benefits of diversity, then certainly that would be a quota, but that is not what occurred here. And in fact the testimony was undisputed, that this was not intended to be a fixed goal. QUESTION: Ms. Mahoney may I shift focus away from this to another point before you're finished, that I -- I am concerned about. In all programs which this Court has upheld in the area of -- you want to label it affirm tisk, there's been a fixed time period within which it would operate. You could see at the end -- an end to it, there is none in this, is there? How do we deal with that aspect? MS. MAHONEY: What the policy says, of course, is that it will only take race into account as long as it 15 is necessary in order to achieve the educational objectives. I don't think that this Court should conclude that this is permanent, because there are two things that can happen that will make this come to an end. The first is that the number of high- achieving minorities will continue to grow and that law school will be able to enroll a sufficient number to have a critical mass or meaningful numbers with substantial presence without having to take race into account. The second thing that can happen, Your Honor, is that we could reach a point in our society where the experience of being a minority did not make such a fundamental difference in their lives, where race didn't matter so much that it's truly salient to the law school's educational mission. While that I can't say when that will happen, we certainly know that as a nation, we have made tremendous progress in overcoming intolerance. And we certainly should expect that that will occur with respect to minorities. QUESTION: We approved any other affirm tisk program with such a vague distant termination base? MS. MAHONEY: Well, in Bakke itself, Your Honor. In Bakke itself, there were five votes to allow the University of California Davis to use a plan modeled on the Harvard plan. It's been in effect for about 25 years. It has repeated extraordinary benefits for this country's educational system. And I think it's far too soon for this Court to included that -- QUESTION: Can -- can we tell from the statistics whether things have been achieved say, more and more minorities are getting in on their own to the University of Michigan Law School without the quotas? MS. MAHONEY: Yes. QUESTION: Or whether -- MS. MAHONEY: Yes, they're not quotas, Your Honor. QUESTION: The critical mass? MS. MAHONEY: We know aspirations. QUESTION: At per rations moan but we do know Your Honor that there has been improvement, in fact, Justice Powell cited to a study, it was done by manning it's in footnote 50 of Justice Powell's opinion and it gives the number of minorities who had achieved a 165 and a 3.5 on the L SAT. QUESTION: How about say the last 15 years, at the University of Michigan, which wasn't being under consideration which justice Powell's opinion? MS. MAHONEY: I think the answer would be that we do know that in 1964 when there was a race-blind policy, there were no blacks admitted, and under a race-blind policy today, probably six blacks would be admitted without consideration of race. So there has not been enough progress to allow for meaningful numbers at this point, but there has been progress. QUESTION: Do we know what's happened in the law schools in California since it was determined by State law affirm tisk? MS. MAHONEY: Yes, Your Honor. We know that for the first -- I think, 4 or 5 years, both only enrolled about -- between I think zero and 7 African American students. They do better on Hispanics because of the demographics of that State, where it's virtually 50 percent Hispanic at the college-age level. But what we have learned is that in the -- they changed their program 2 years ago and this fall they succeeded in enrolling 14 African-American students, but what we know from talking to the law school admissions counsel with Bolt's permission is that the African-Americans who were enrolled under that program have appoint LSAT score gap from the whites who have been enrolled, so the same gap -- QUESTION: Well, there are other law schools in California, too, are there not? MS. MAHONEY: Yes, UCLA, well, this is mainly Your Honor a problem for the highly selective schools because of the nature of the pool. QUESTION: You have some good law schools, you have UCLA, you have USC? MS. MAHONEY: UCLA. QUESTION: SC is private? MS. MAHONEY: Yes. QUESTION: But UCLA? MR. KOLBO: UCLA -- UCLA had -- the class that's graduating this year, for instance, I believe had five blacks in it. So I believe last fall they did better and we have been told that that's because they were able to recruit some additional numbers of black students because of a special critical race studies program they're offering but that's not a solution to the pool problem, Your Honor. The pool problem is that if we look at the ranges of LSATs where the University of Michigan takes its students, there are literally about 30 in the entire country, three or four per top schools. So some kind of, you know, race-conscious recruiting that schools are using doesn't solve that problem. And if I could go back to Bolt for just another minute, because that is something that the petitioners raised in their reply brief, is that given that we know that they have exactly the sam 9-point LSAT gap that Michigan gets under its program, there is no reason to think that what they are doing would satisfy the petitioner's conception of the Equal Protection Clause. 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. "Transcripts" Table of Contents | Next transcript
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