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Grutter v. Bollinger—U.S. Supreme Court JENNIFER GRATZ and PAT RICK HAMACHER, Petitioners 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.; as amicus curiae, supporting the Petitioners. JOHN PAYTON, ESQ., Washington, D.C., on behalf of the Respondents. CHIEF JUSTICE REHNQUIST: We will hear argument next in No. 02-5 , Jennifer Gratz and Patrick Hamacher v. Lee Bollinger. MR. KOLBO. ORAL ARGUMENT OF KIRK O. KOLBO ON BEHALF OF THE PETITIONERS MR. KOLBO: Mr. Chief Justice, and may it please the Court: Jennifer Gratz and Patrick Hamacher were denied admission to the University of Michigan's flagship undergraduate institution, the College of Literature and the Science and the Arts under an admissions-- under admissions policies that facially and flagrantly discriminated on the basis of race. The history of their case and of the University's defense of its discriminatory admissions policies is a powerful argument about the perils of entrusting to the discretionary judgments of educators theprotection of the Constitution's guarantee of equality toall individuals. For nearly 5 years, the University vigorouslydefended in the district court and the court of appeals the admissions systems that were in place when petitioners Gratz and Hamacher applied. These systems featured separate admissions guidelines for different races, protected or reserved seats in the class for select minorities, that is blacks, Hispanics and Native Americans, racially-segregated wait lists, and a policy of never automatically rejecting students from their preferred -- from the preferred minority groups while doing so for others. QUESTION: Mr. -- MR. KOLBO, as a preliminary matter, would you address the question of whether the named plaintiff Patrick Hamacher has standing in this case. He was denied admission, I think, in ? MR. KOLBO: Correct, Your Honor. QUESTION: And he claimed that he intended to apply to transfer to the University of Michigan, from wherever he was going to school, and yet the transfer admissions policy, I guess isn't before us. MR. KOLBO: The transfer admissions policy itself is not before you -- the Court, Your Honor. QUESTION: No MR. KOLBO: -- but the policy is essentially the same with respect to the consideration of race and the Court did -- we did certify a class in this case, with respect to Mr. Hamacher, and I believe it was December of . We moved for class certification and the district court granted that certification. And as a result of that, of course, anything with respect -- anything that's happened with respect to Mr. Hamacher subsequent to that time it seems to us is not irrelevant to the consideration of standing. QUESTION: Are you sure that the transfer policy is the same as the admissions policy for new freshmen? MR. KOLBO: Well, it's not exactly the -- QUESTION: We didn't find any such finding. There was some little material in the record that gave me a different thought about it. MR. KOLBO: The transfer policy considers race, Your Honor. QUESTION: I know it considered race, but not in precisely the same way as this -- MR. KOLBO: Not in precisely the same way, and the Court -- there -- there is nothing -- it may be, perhaps included in parts of the appendix materials, but the district court did not address the issue of the transfer policy when it -- in Mr. Hamacher's potential for transferring under the policy. QUESTION: Well, there's nothing, I take it -- if Mr. Hamacher prevails on the transfer -- there is nothing in his prevailing that would hurt any other class member. MR. KOLBO: Nothing at all, Mr. Chief Justice. I know it considered race, but -- but not in precisely the same way as this -- Not in precisely the same way, and the Court -- there -- there is nothing -- it may be, perhaps included in parts of the appendix materials, but the district court did not address the issue of -- of the transfer policy init -- in Mr. Hamacher's potential for transferring under the policy. QUESTION: Well, there's nothing, I take it -- if Mr. Hamacher prevails on the transfer policy, there is nothing in his prevailing that would hurt any other class member? MR. KOLBO: Nothing at all, Mr. Chief Justice. QUESTION: It's not a -- okay. MR. KOLBO: No. If Mr. Hamacher prevails, then the rights of many thousands of others will have been vindicated and they will be able to compete under a nondiscriminatory system. QUESTION: Of course that would be true even if he doesn't have standing. (Laughter.) MR. KOLBO: That's true. Well, Your Honor theywould not be able to compete under a nondiscriminatory system unless this particular system is struck down. QUESTION: I understand if it's struck down, but that -- that begs the QUESTION of whether the named plaintiff has standing to represent a class of people who want to get into the freshman class. He wants to get in as a transferring student. I mean, it -- maybe there's standing, but the mere fact that if he wins everybody will benefit certainly doesn't speak to the QUESTION whether he has standing. MR. KOLBO: No, Your Honor, but we -- we do believe that because the -- the transfer policy and the original admissions policy are fundamentally the same in the respect that they both consider race in the admissions process in a way that is discriminatory and we believe that's -- QUESTION: And therefore if you're right that any consideration of a race is enough to condemn the program, then he would have standing, but if it -- if it requires analysis of the particular components of the policy, then we ought to know whether the transfer policy is the same as the original policy. MR. KOLBO: That would be true, Your Honor, if the case were decided strictly on the issue of narrow tailoring, but my understanding is that the University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the law would be same with respect to the transfer policy as with respect to the original admissions policy, Your Honor. QUESTION: Oh, he has standing to challenge. That's -- that seems clear, but the -- depending on the rationale that the court adopts if it finds -- if it finds the program unacceptable, he may not be entitled to relief. MR. KOLBO: He would be -- it seems to me,perhaps, Your Honor, entitled for relief for damages. He's -- he's not at this point seeking to be admitted to the University. He's graduated with the passage of time, it's been five-plus years since this suit was filed, Mr. Hamacher has attended and graduated elsewhere. It seems to me he would be entitled to damages. QUESTION: And the Court agreed with him as far as the program that was in place when he applied. The Court, I thought, held that program unconstitutional. MR. KOLBO: It did, Your Honor. QUESTION: And -- but upheld the program that came into being after his application, and he hasn'treapplied under the new -- but he -- but there was a class certified, so I suppose you could substitute another plaintiff, someone who is applying under the current system. MR. KOLBO: Well -- well, our position, Your Honor, is that because the class was certified with respect to Mr. Hamacher, that that's sufficient; that if the -- if the system is found unconstitutional, he is anadequate class representative. Sure. Certainly. One of the critical things that is demonstrated in this case is how easy it is for one system to bedisguised as another. What has happened in this case is that for five years again, the University defended the system with its facially separate admission guidelines, with its reserved seats, and then in -- two years into this case, in fact, was still using some of these particular forms in its admissions policy. It is an indication, I think, of how difficult it is to conclude that what we have here is a system that, for example,comports with what Justice Powell indicated he was -- he approved of in the -- in the Bakke case. What we have here is a system that was -- is not narrowly tailored to achieve any governmental interest, any compelling governmental interest. I would like, if I may, to return to the issue of diversity and the diversity issue as a -- as a compelling state interest. The fundamental problem with the diversity rationale is that it depends upon the standardless discretion of educators. It is a discretion that would be exercised in a number of different respects. And we need to be clear about this. The University and its amicus have all made it clear that in their judgment they ought to be entitled to use race as much as necessary in their educationaldiscretion. If that is the rule that we end up accepting, then universities are free in their discretion to choose which races are discriminated against, which are favored. We can have one institution that discriminates against one group of individuals, and another against another. We can have with the -- with shifting fashions and -- and preferences and time, the preferences for the races can shift. An example of that is found in comparing the facts of this case to the Bakke case, wherein Bakke, Asian Americans were included in the preference, and under the University of Michigan's systems, they are excluded. The -- the exercise of discretion will extend to who's identified in a particular race. It will be for educators to decide whethersomeone of a mixed race is someone that is entitled to a preference. You can have anomalous situation of theUniversity's guidelines for example where someone who is both half-white and half-black -- QUESTION: How -- how does the University of Michigan decide those things? Do they -- is it just a self-reporting type of system on the application? MR. KOLBO: That's correct, Mr. Chief Justice,it's a matter essentially of self- identification. So ifsomeone of mixed race who is white and black identifies himself as white, then as far as the University is concerned, they don't bring the diversity that they're looking for. If that person identifies himself as black, then merely from that identification, they have fallen within the diversity that the University seeks. QUESTION: And -- and the reason that these -- QUESTION: One thing I don't quite understand what difference does it make to your client whether they're three or four races or five or six races as long as she's not one of them? MR. KOLBO: Well, it seems to me, Your Honor, it -- the problem -- 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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