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Grutter v. Bollinger—U.S. Supreme Court REBUTTAL ARGUMENT OF KIRK O. KOLBO ON BEHALF OF THE PETITIONERS MR. KOLBO: With respect to the point system, Counsel has made it sound as if it's sort of a fortuity that the University of Michigan has an admissions system that ends up admitting -- admitting virtually all minority students. In fact, I want to talk a little bit about the record here. We put in the record the guidelines from the original system that was in place in 1995 and 1997 . At the joint appendix, at page 80, it's made very clear that the guidelines were set in 1995, when Jennifer Gratz applied to admit all qualified minority students. It's also undisputed in this record that the way the University got to the 20 points was to statistically design it based on the old model. So what they've done is they've taken the old guidelines that were set to admit all qualified minority students, statistically figured out how many points they needed to give -- to give to students under the new system to replicate the old system, and that's how we ended up with 20 points. So it -- it strikes me as disingenuous to suggest that it's simply an accident. These policies have a purpose. They grant a preference for a purpose. And the new system does what the old system did -- did, which is to create a two-track system. It's not enough if you're Jennifer Gratz or Patrick Hamacher to be merely qualified to get admitted to the University. To be admissible is not simply enough because of their skin color. If however you're a member of one of the minority students and you meet those minimum qualifications, that's sufficient. If that's not a two- track system, I can't imagine what one -- what one would actually look like. With respect to test scores, a question was made -- a question was asked about how long are these systems going to last. There's actually evidence, and this was not put in the -- in the record by the University, with respect to test scores and disparities, but there's -- there's also opposing opinion which has indicated that as long as we have these preferences, they create perverse incentives. We've cited the work of John McWhorter, for example, in our reply brief indicating that test scores to the extent that they're not narrowing, or to the extent that the gaps are increasing may, in fact, be to the fact -- due to the fact of these -- of these preferences. With respect to the Hobbesian choice that Mr. Payton has talked about, they have resolved a different Hobbesian choice. The University has decided that they are willing to lower their academic standards to get their critical mass. They've resolved that -- that Hobbesian choice that way. But they've resolved the other Hobbesian choice, how to get those objectives and stay selective, they've resolved that Hobbesian choice on the backs of the constitutional rights of individuals like Jennifer Gratz and Patrick Hamacher. They are the ones that are paying for the Hobbesian choice that the University has resolved with -- by the use of a two-track admission system. With respect to the concept of critical mass, all I have to say, if one can't ascertain from the way it's defined, meaningful means sufficient, sufficient means critical, critical means sufficient, that meets the definition, it seems to me, of an interest that's too amorphous, too ill-defined, too indefinite, just like the role model theory, just like a remedy for societal discrimination, too indefinite to support the use of a compelling -- to suit -- to use -- to be a basis for racial preferences. CHIEF JUSTICE REHNQUIST: Thank you Mr. Kolbo. The case is submitted. 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
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