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Grutter v. Bollinger—U.S. Supreme Court Mr. Payton, we'll hear from you. ORAL ARGUMENT OF JOHN PAYTON ON BEHALF OF THE RESPONDENTS MR. PAYTON: Mr. Chief Justice and, may it please the Court: I think I think I want to spend just a few minutes briefly setting the record straight on why it is the educational judgment of the University of Michigan that the educational benefits that come from a racially and ethnically diverse student body are crucial for all of our students and why those benefits do not depend in any way on the assumption that, for example, all African Americans think alike. LS&A, our premiere undergraduate institution, is an undergraduate college, most of its entering students come in as -year-olds, about two-thirds come from Michigan, and about half from Detroit or the greater Detroit area. Michigan, I think as everyone knows is a very segregated State. QUESTION: Half of the ones who come from Michigan come from Detroit? MR. PAYTON: Yes. Half of our students come from -- yes. Michigan is a very segregated State. Detroit is overwhelmingly black. Its suburbs and the rest of the state are overwhelmingly white. While Michigan is extreme in this regard, it's not that extreme from the rest of the country. The University's entering students come from these settings and have rarely had experiences across racial or ethnic lines. That's true for our white students. It's true for our minority students. They've not lived together. They've not played together. They've certainly not gone to school together. The result is often that these students come to college not knowing about individuals of different races and ethnicities. And often not even being aware of the full extent of their lack of knowledge. This gap allows stereotypes to come into existence. Ann Arbor is a residential campus, just about every single entering student lives on campus in a dorm. On campus, these -year olds interact with students very different from themselves in all sorts of ways, not just race, not just ethnicity, but in all sorts of ways. Students, I think as we know, learn a tremendous amount from each other. Their education is much more than the classroom. It's in the dorm, it's in the dining halls, it's in the coffee houses. It's in the daytime, it's in the nighttime. It's all the time. Here's how critical mass works in these circumstances. If there are too few African American students, to take that same example, there's a risk that those students will feel that they have to represent their group, their race. This comes from it isolation and it's well understood by educators. It results in these token students not feeling completely comfortable expressing their individuality. On the other hand, if there are meaningful numbers of African American students, this sense of isolation dissipates. QUESTION: Mr. Payton, what is a meaningful number? MR. PAYTON: It's what we've been referring to as critical mass. QUESTION: What is critical mass? MR. PAYTON: Critical mass is when you have enough of those students so they feel comfortable acting as individuals. QUESTION: How do you know that? MR. PAYTON: I think you know it, because as educators, the educators see it in the students that come before them, they see it on the campus. QUESTION: Do they -- professors at the University of Michigan spend a lot of time with the students? MR. PAYTON: Yes, they do. This is an incredibly vibrant and complex campus that has diversity in every conceivable way. And I think -- QUESTION: Do they spend a lot of time with them other than lecturing to them? MR. PAYTON: They do. In the record, we actually have an expert report that's not contradicted in any way by Professor Raudenbush and by Professor Gurin, just on the issue of how do you know when you have enough students in different contexts and circumstances that there will be these meaningful numbers. QUESTION: What do they say? MR. PAYTON: They said that given the numbers that have been coming through in the last several years, we are just getting to that critical mass. And the way they analyzed it was to look at the circumstances in which students interact. Entering seminar, a dorm context, a student activities context, student newspaper context, to see what would happen if you distribute the students across these small encounter opportunities. QUESTION: Does Michigan have, as some schools I know have, schools that have affirmative action program, does it have a minority dorm? MR. PAYTON: No. The answer is no. We have dormitories like I said. Just about every single entering student stays in a dormitory. We do not have any dormitories where your entrance into it is governed by your race. But we have tremendous representation in our dormitories because everybody has to stay there, okay? So the answer is -- QUESTION: I mean, apart from being excluded, if -- it is in fact the residential pattern quite mixed and there are no dormitories that are, you know, just as sometimes there is -- there is the jocks dormitory, there is really no African American dormitory? MR. PAYTON: The answer is there is no African American dormitory, put it -- the full answer is more complex. After students are there for their first year, they can choose to move off campus. They can choose to stay on campus. Many stay on campus, many move off campus. Ann Arbor is a college town and off campus is actually in the larger campus community and what they do off campus is obviously up to the students themselves, but I think that's -- you know, that's the real world. If you have the meaningful numbers of minority students, what then happens is that students will see a range of ideas, a range of viewpoints from and among those students and they will then see things that they may not have expected, similarities and differences, and those in turn will have the result of undermining stereotypes, you know, and this happens for the minority students, and the white students. This happens for all the students. You know, the benefits from this affect every single student that comes through. And they're dependent on their being meaningful numbers, or critical mass, of minority students, or the benefits don't come about. That's the interest that the University is asserting. That's why they think that this is so crucial. Education, understanding, produces citizens and leaders in our complex society. QUESTION: But where we are is, there's an assumption, you may not agree with it, but it's one beginning assumption in this area, that there may not be a quota, every -- all of the eloquent things you said could be easily met by a quota. That -- let's just assume for argument, we cannot do. I have to say that in -- in looking at your program, it looks to me like this is just a -- a disguised quota. You have a -- a minority student who works very, very hard, very proud of his athletics, he gets the same number of points as a minority person who doesn't have any athletics -- that to me looks like an overt quota. MR. PAYTON: Here's how our system works and I believe it's not a quota at all and I can believe -- I can simply explain this. The way it works, an application comes in, it is reviewed on the basis -- every single application is read in its entirety by a counselor, every single application. It is in fact judged on the basis of the selection index, which has the 20 points for race and 20 points for athletics, but it also has all sorts of other things that it values, in state, underrepresented state, underrepresented county within Michigan, socioeconomic status, what your school is like, what the curriculum that you took at your school is like. QUESTION: But none of that matters. MR. PAYTON: Your grades -- QUESTION: None of that matters if you're minimally qualified and you're one of the minority races that gets the 20 points, you're in, correct? The rest is really irrelevant? MR. PAYTON: The way it works is that every application comes through and it's read in its entirety, it is evaluated taking all of these factors into account, and then based upon the number that comes off the selection index which can go up to 50, the students are all competing against each other. There is a score that is evaluated throughout the year, because there's an overenrollment problem that always has to be managed and if the score is higher, you are in, and that doesn't matter about anything other than what the score is. In addition, the counselor can on the basis of three factors see that an application is reviewed by the admissions review committee. QUESTION: Mr. Payton, in your brief, you say the volume of applications and the presentation of applicant information may get impractical for LSA to use admissions system as the much smaller University of Michigan Law School. Now, you're saying that every single application for admission to LSA is read individually? MR. PAYTON: Yes. Sometimes twice. Because every application is read when it comes in, and those that a counselor flags that -- because they find that there's three factors you have to have flag an application -- academically able to do the work, above a certain selection index score and also contributes at least one of various factors that we want to see in our student body, including underrepresented minority status, but also very high class rank and a whole range of other things. QUESTION: When you say underrepresented minorities, what comparison are you making to say that it's underrepresented? MR. PAYTON: I think we're taking that term as the Federal Government has used it, and the reason Asians aren't included, just to pick up one of the -- QUESTION: How does the Federal Government use it? MR. PAYTON: I think there are three minority groups, you know. Let me just go back and answer what we want. QUESTION: Well, I think perhaps I could get a more direct answer. How do you decide whether, say, African Americans or Hispanics are quote underrepresented, close quote? MR. PAYTON: I think this is actually a very important point. They are underrepresented in our applicant pool. QUESTION: Compared to what? MR. PAYTON: Compared to -- we have very small pools of African Americans, for example, that are qualified to the extent that we require students to be qualified to do the work at the University of Michigan and what that means is that if we didn't take race into account, we would not be able to get the numbers of those students, the critical mass, necessary for the educational benefits that we want. QUESTION: But -- MR. PAYTON: That's underrepresented. 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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