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Grutter v. Bollinger—U.S. Supreme Court QUESTION: She's equally being discriminated against as a Caucasian, no matter how many other races are preferred. MR. KOLBO: That's true, Your Honor. I -- I raised the point because it -- it indicates how standardless this interest is. It is not defined with respect to any constitutional principle like, for example, an interest based on remedying discrimination. It is entirely discretionary with the University. QUESTION: So is it entirely discretionary when you read a set of exam books, you know, it's highly subjective, which is a little better than its -- Often I'd make a mistake as a professor, so -- so the fact that there aren't written-down standards is -- is -- I'm -- I'm not sure of the Constitutional relevance of that when what you're trying to do is something lawyers don't normally do, which is to select among people individually considered which one is better for this particular slot. Businesspeople do that, lawyers don't except when they're hiring. (Laughter.) QUESTION: But -- but I don't -- if you said to a businessperson, this doesn't have standards, such a thing, I think they might laugh and say my job and experience is to select who's better for this slot, so -- so I'm not sure of the constitutional relevance of what you say, which seems to me to me to grow out of the nature of the problem. MR. KOLBO: Well, again, Justice Breyer, the constitutional relevance derives from the fact that we're talking about a constitutional right here, the use of race, which is not the same thing as -- QUESTION: Yes, yes, but I mean, as Justice Stevens just said, the constitutional problem consists of the injury to your client and that injury is the same irrespective of the precise nature of the standards on the other side. And -- and what I'm sort of struggling for here is I see your point, if you say you cannot use race at all, period. No matter what. That's a -- that's a clear position, which I think is one of your positions. But once you depart from that, now I'm -- I'm interested in the detail. At that point I'm not quite sure the relevance of what you're saying. MR. KOLBO: Well, Your Honor, what I'm suggesting is the Court itself has made clear that for an interest to be compelling, one of the considerations that the Court must look at is whether there are standards -- independent, ascertainable standards apart from the discretion exercised by, say, an employer to determine whether the interest is one that's compelling and one that the Court can oversee. That interest, that standard -- that standard exists, for example, when we have an interest in remedying identified discrimination. The Court has made it clear that what with can be done in that case is you can measure the extent to which there has been past discrimination, that's not a matter of discretion for the employer to decide, and once you've measured the extent of that discrimination, you can tailor your remedy to that interest. QUESTION: MR. KOLBO, because you mentioned the employer and the employer's judgment, I gathered from your brief that this case is not simply about public universities. Employment -- because you bring up and you bring up Title VI -- under Title VI, this case is as much about Harvard as it is about Michigan, isn't that true? MR. KOLBO: The same standard would apply, Justice Ginsburg, that's correct. QUESTION: And it -- and in the private sector, employment in the private sector, there's . So there, too. So this case is much larger than private -- public -- public universities. It's all colleges and universities, and it's the entire realm of employment if you're right. MR. KOLBO: Well, Your Honor, I want to be clear about what it is that we're arguing for here today. We are not suggesting an absolute rule forbidding any use of race under any circumstances. What we are arguing is that the interest asserted here by the University, this amorphous, ill-defined, unlimited interest in diversity is not a compelling interest. Nothing we argue today and nothing we seek to do today would undo the Court's precedents that have recognized if some -- QUESTION: As far as -- QUESTION: But I think you are arguing that anything except remedies for past discrimination is impermissible. MR. KOLBO: Your Honor, that is not a conclusion that we need to follow from this Court's decision. QUESTION: No, I -- I think that's your position, is it not? That the only permissible use of race is as a remedy for past discrimination? MR. KOLBO: I would not go that far, Justice Stevens, there -- QUESTION: No, I -- I think that's your position, is it not? That the only permissible use of race is as a remedy for past discrimination? MR. KOLBO: I would not go that far, Justice Stevens, there may be other reasons. I think they would have to be extraordinary and rare, perhaps, rising to the level of life or limb. We do know that the Court has recognized past identified discrimination. QUESTION: What about Weber, to take a specific case? Employment setting, the employer says I don't want to confess to having been a past discriminator, but I'm willing to engage in this voluntary affirmative action. I take it that that would be impermissible if we adopt your view? MR. KOLBO: Weber, as I understand it, is a Title VII case, Your Honor and it's not implicated by this decision. QUESTION: But there's , then -- then the person who was attacking it on grounds that it's racially discriminatory just says my lawsuit is under , which it could be as well as Title VII and then what is the result? MR. KOLBO: Well, it seems to me, Your Honor, that -- if the Court could resolve the issue consistent with Title VII, which has remedial -- QUESTION: If the suit is brought under , the Court can decide what the plaintiff's complaint should be? MR. KOLBO: No, no, if this Court decides this case under section , the only interest asserted here at least is an interest in diversity that we are asking tostrike down. It may be that there are some other interests, including a remedial one, that would be justified under some other statute. But the issue is not presented. QUESTION: But there was no -- this is a voluntary affirmative action, no admission of prior discrimination. I gather if someone brought a suit, to stop that, your theory is that that person would prevail? MR. KOLBO: The use of race to exceed nonremedial objectives, I think would have problems, Your Honor. QUESTION: Congress wanted race to be considered by private institutions such as Harvard and what-not, if there's a problem with , or any of the other Federal statutes, they can simply amend it. What the -- the only thing that the Constitution applies to is State action. MR. KOLBO: Yes, that's correct, Justice Scalia. QUESTION: And all the rest is simply Congress' decision to impose a similar restriction upon private actors, which decision it can change if it wishes. MR. KOLBO: That's my understanding, Your Honor. QUESTION: Or suppose you say you used the word extraordinary as compelling justification, and the other side says, yes, extraordinary, we're 2 0 million people, we have large racial diversity within the country, the world is even more diverse, and we think from the point of view of business, the Armed Forces, law, et cetera, that this is an extraordinary need to have diversity among elites throughout the country. That without it, the country will be much worse off. That's what we're being told. In fact, the country might not function well at all. And we have to train those people. We have to. All right, now, how can you say, or can you say, that isn't extraordinary? That isn't a QUESTION of life or limb for the country? It isn't really that necessary, when so many people are telling us the contrary? MR. KOLBO: Your Honor, because there are important constitutional rights at stake. And those rights are the right to equal protection. And a mere social benefit that is having more minorities in particular occupations or the schools simply doesn't rise to the level of compelling interest. It simply is not -- it doesn't remedy a constitutional value, like -- QUESTION: So if the University president or the dean told you just what Justice Breyer said, you would tell them there's -- and that we have underrepresentation of minorities, you would tell them there's nothing you cando about it? MR. KOLBO: I would say, Your Honor, that racial preferences are not the answer. If there are problems again in not getting a sufficient number of -- if minorities are not competing at levels of other racial groups then we should take steps to solve that problem. But racial preferences, because they injure the rights of innocent people, because it's a prohibition contained in our Constitution, simply aren't permissible to remedy that problem. If I may reserve the remainder of my time, Mr. Chief Justice. QUESTION: Very well, MR. Kolbo. 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 excerpt
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