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Grutter v. Bollinger—U.S. Supreme Court QUESTION: When you say underrepresented, it sounds like something almost mathematical, that you're saying, we only have a certain percentage of -- and we should have this percentage, well, what is this percentage? MR. PAYTON: It's actually not a percentage at all and it really is driven by the educational benefits that we want from our diverse student body. If we had in our applicant pool sufficient numbers of minority students, African Americans, for example -- QUESTION: What is a sufficient number? MR. PAYTON: So that when we made our selection -- QUESTION: I asked you, what is a sufficient number? MR. PAYTON: Yes. QUESTION: An answer -- would you answer it? MR. PAYTON: A sufficient number so that when we made our selections, we were achieving the critical mass of students that we need for the benefits I described. That is not a fixed precise number at all, as you've heard. It is -- that's simply not the nature of the critical mass. But when you're trying to figure out whether or not in your applicant pool, you have sufficient numbers, so that the normal operation of our process would yield a critical mass, that's underrepresented. We are underrepresented with respect to Hispanics, with respect to African Americans and with respect to Native Americans. QUESTION: Because your standards are so high, you say that there are very few of those who can meet your standards. So why don't you lower your standards, actually, I mean if this is indeed a significant compelling State interest, why don't you lower your standards? MR. PAYTON: We do have sufficient numbers in our applicant pool to achieve the critical mass that we're achieving. We're not taking -- you're right we're not -- QUESTION: By taking race into account, you can you can do it. But -- MR. PAYTON: But we're not taking students that aren't qualified, you are correct about that, Justice Scalia. QUESTION: But just lower your qualification standards, if -- if this value of -- of having everybody in a mix with people of other races is so significant to you, just lower your qualifications. MR. PAYTON: It is that significant to us. But I think that -- QUESTION: You don't have to be the great college you are, you can be a lessor college if that value is important enough to you. MR. PAYTON: I think that decision which would say that we have to choose, would be a Hobbesian choice here. Our premiere institutions of higher education, I'd say, are part of our crown jewels. We have great educational institutions in this country. The University of Michigan is one of them. I think we are the envy of the world. If we had to say, gee, our educators tell us that it is crucial that for the full education they want for those students, all of those students we needed for a student body, that the decision is, oh, gee, we want to you decide to either have a poor education for the essentially white students and/or you can say, change what you are as an institution. I think we get to decide what our mission is. I think the Constitution gives us some leeway in deciding what our mission is and how we define ourselves. QUESTION: And anything that contradicts that mission is automatically a compelling State interest? MR. PAYTON: No. I think what we're saying is we can achieve both of those things, because, in fact, achieving the educational benefits that come from a diverse student body can be achieved, given our mission, if we can go about selecting students in a way to achieve the critical mass of minority students that we need. We want both of those things. We think that -- QUESTION: Go ahead. Are you finished? MR. PAYTON: Yes. QUESTION: I wanted to go back to Justice Kennedy's question. The point system here, does it meet the opinion of Justice Powell in Bakke when that was called for individualized consideration? Now, the concern that it does not, is that you under this system would seem to have the possibility that two students -- one is a minority, African American, one is not, majority, and they seem academically approximately the same and now we give the black student points and the white student, let's say, is from the poorest family around and is also a great athlete, and he just can't overcome that 20 points -- the best he can do is tie. And so that's the argument that this is not individualized consideration. And I want to be sure I know what your response is to that argument. MR. PAYTON: I have two responses. The first is to say that it is individualized if that white student actually was socioeconomically disadvantaged, that could be taken into account. QUESTION: But remember he has that and gets 20 points for it? MR. PAYTON: Yes. QUESTION: And he also is a great athlete and I've constructed this example to make it difficult for you, and -- but I mean you see he can only get 20 points, no matter how poor he is. And no matter how great an athlete he is as well, and the -- let's say the black student who has neither ties him? MR. PAYTON: Yes. QUESTION: But on individualized consideration, the black student might lose, if there were the individualized consideration. MR. PAYTON: Well, he might -- QUESTION: And that's -- and that's what you're giving him. Now what is the answer I'm -- I'm trying to find your answer? MR. PAYTON: The answer is we value both of those aspects of diversity. We want both of those represented in our student body, all right, if they tie, they will being judged exactly the same as far as how the selection index works. QUESTION: What you're saying is that race is individualized consideration? MR. PAYTON: I'm saying that each student -- QUESTION: Otherwise you're saying that only in the hypothetical given that only the white student receives individualized consideration? MR. PAYTON: No, no. They both -- QUESTION: Some are more equal than others? MR. PAYTON: They both receive individualized consideration. They're both reviewed in their totality. They both may be sent to the admissions review committee where they get a second reading. In Bakke -- QUESTION: If in those circumstances, because we have the white student who is both a good athlete and also very poor, and the other student, the minority is not, could that be sent to the -- the individual -- could that be sent to the review committee and the review committee would say, well, we have a special circumstance here, and even though the points tie, nonetheless when we look at it carefully, we see that the white student has these extra pluses, despite the points, we let in the white student? MR. PAYTON: The admissions review committee -- about 0 percent of the applications that it reviews in any given year are white student applications that are sent to it. Okay. It can reach its judgment irrespective of whatever happened in the selection index score. QUESTION: So they can ignore the points? MR. PAYTON: They can -- actually once it goes to them they simply look at the application and make a judgment. QUESTION: So I want a clear answer to this. That review committee can look at the applications individually and ignore the points? MR. PAYTON: It does. QUESTION: Yes. The answer is yes? MR. PAYTON: The answer is yes. QUESTION: Okay. MR. PAYTON: In Bakke, where Justice Powell says that he could look at one example of an admissions policy and he discusses briefly the Harvard plan and then he has a long quote from it, there is the footnote 50 that Ms. Mahoney mentioned. In both footnote 50 and footnote 5 there is a citation to this study by Carnegie and he introduces that by saying in the footnote there are in this study examples of the actions by other leading institutions, trying to get diverse student bodies. That study indicates that there are plenty of other models where in fact some effort to come up with a system to handle these different factors was successful. QUESTION: Mr. Payton, it's easy to say they can ignore the points. It's easy to say. Do you know of any case where a minority applicant, one of the minorities favored in your program, who was minimally qualified, got the 20-point favor and was rejected? MR. PAYTON: I don't know, Justice Scalia. QUESTION: It's important, I mean, to say theoretically, it's fine, yes, theoretically, you can reject it. But as I understand what -- what the other side is saying, it is automatic, if you are minimally qualified, and you get those 20 points, you are in, that's what they claim? MR. PAYTON: Actually -- QUESTION: Now, do you assert that that is false? MR. PAYTON: That is not correctly describing what happens. The way the policy works and the way it is implemented is how I described the policy. In fact, the results of the policy are that most of the qualified minority applications do end up getting admitted. That's not the design. The design is here's how you do it, here's how the decisions are made, either on the selection index score, some are sent to the admissions review committee. Most of those that are sent to the admissions review committee are in fact not minority applications, but the design is not gee, admit all qualified minorities, the design is to take these different factors into account in order to achieve the student body that we think is crucial here. QUESTION: So there are some qualified minorities who get the 20 points and who are rejected? MR. PAYTON: I believe that is the case, all the record says in this is that virtually all of the minority students, as a result of the policy ended up being admitted. I think there are certainly some, I can't give you one, I can't give you one, but there are certainly some where if you work it out, you can see that won't happen. QUESTION: But the design is to admit a higher percentage of the qualified minority applicants that you get, given the numbers that there are today, because if you do that you won't get your mix? MR. PAYTON: The design is to make sure we get to the critical mass of the meaningful numbers and given the small pool size we have, the way it operates is as you just described, but that's the way it operates, the design is to make sure we get the critical mass of students that are, in fact, necessary for the educational benefits that we are asserting here. QUESTION: Has anyone at Michigan ever defined critical mass as being anything more specific than something beyond token numbers? MR. PAYTON: I think that the reason I referenced the two expert reports by Professor Raudenbush and Professor Gurin is to try to see this -- those two reports try to put this in sort of an everyday example, you know, students don't interact with the student body as a whole, they interact in small settings and it's to see if you see what our minority student population is how that would distribute into these small settings. And on the basis of how that distribution works, Professor Gurin looked at it to see whether or not that looked like that would be generating the interactions that she would expect for these educational benefits. 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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