University makes its case before the Supreme Court

WASHINGTON—The University argued in support of its admissions policies April 1 before a packed Supreme Court of the United States. Outside the court, several thousand supporters—many of them students who had traveled by busload from across the country—rallied in favor of affirmative action.

The legal and communications teams for the University pose for a moment on the steps of the Supreme Court of the United States. Those present include Regent Andrea Fischer Newman; Assistant General Counsel Jonathan Alger; Law School Assistant Dean Charlotte Johnson; Law School Dean Jeffrey Lehman; Board of Regents Chair Laurence Deitch; Wilmer, Cutler & Pickering attorney John Payton; Butzel Long attorney Phil Kessler; President Mary Sue Coleman; Director of Undergraduate Admissions Ted Spencer; Butzel Long Attorney Leonard Niehoff; Vice President for Communications Lisa Rudgers; Vice President and General Counsel Marvin Krislov; Communication Studies lecturer Tony Collings; Regent Andrew Richner; and Associate Vice President for Media Relations Julie Peterson. Unable to be seen clearly in the picture are Law School Associate Dean Evan Caminker, Media Relations manager Joel Sequine and Executive Director of Federal Relations Mike Waring. Missing team members are Latham & Watkins attorney Maureen Mahoney and information officer Deborah Greene. (Photo by Marcia Ledford, U-M Photo Services)

The cases generated a virtually unprecedented amount of media and public interest, according to observers. In response, the court released a complete audiotape immediately following oral arguments, a decision made only once before in its history (Bush v. Gore). A link to the audio can be found at

A decision by the court is expected some time in June, close to the end of its term.

Grutter v. Bollinger

Arguing in the Law School case (Grutter v. Bollinger), attorney Maureen Mahoney said the government has a “compelling interest in having an institution that is both academically excellent and racially diverse.” Future leaders must be “trained in institutions that are excellent, that are superior academically, but they also need to be trained with exposure to the viewpoints, to the perspectives, to the experiences of individuals from diverse backgrounds.”

“It has certainly been the consistent position of the Department of Education for the past 25 years that (the Supreme Court’s 1978 decision in) Bakke is the governing standard, and that schools are encouraged to use programs to achieve diversity,” she said.

Kirk Kolbo, attorney with the Center for Individual Rights, said the plaintiff Barbara Grutter had a right guaranteed by the Constitution that her race would not count against her in admissions decisions. Solicitor General Theodore Olson argued that the Law School’s admissions process “fails every test” devised by the court and amounts to a “thinly disguised quota.”

Two justices, Antonin Scalia and Anthony Kennedy, questioned the University more closely about whether quotas are used. Mahoney said the word “quota” has a clear legal definition, and the Law School process does not fit that definition because there is no fixed numerical target for the numbers of minority students admitted. Instead, she said, each applicant is considered individually as part of a flexible process.

Flexible goals for minority enrollment “can be related to numbers without being a quota,” Mahoney said. She noted that the Department of Education, in 1979 policy guidelines interpreting the Bakke decision, “authorized schools to establish and pursue numerical goals” as long as they did not set aside a fixed number of places or make race the sole criterion for eligibility.

Justice David Souter said five justices agreed in Bakke that “there is a permissible zone between a purely token number (of minority students) and a quota or set-aside, and you can shoot for something in that zone.”

More than 100 amicus briefs—a record number—were filed with the court in the two cases, most in support of the University. The court seemed especially interested in a brief filed by 29 former high-ranking military leaders. Several justices returned to the issue again and again with Kolbo and Olson, noting that the military academies are dependent upon race-conscious policies to recruit a diverse officers corps. Olson, who was quizzed about the government’s own policies, did not answer the question of whether he believes such practices at the military academies are legal.

One of the key issues in the two cases is whether race ever can be taken into account in making admissions decisions. Justice Sandra Day O’Connor, seen by many as a key swing vote on the court, noted that Bakke provides an important precedent that must be considered.

O’Connor asked the attorneys whether they agreed with Justice Lewis Powell’s opinion in Bakke that race could be considered as one of many factors in admissions. Kolbo said it is “impermissible” to use race as a factor, to which O’Connor replied, “You’re speaking in absolutes and it isn’t quite that. I think we have given recognition to the use of race in a variety of settings.”

O’Connor also said she was concerned about whether Michigan’s use of affirmative action has a fixed time period or is intended to go on indefinitely.

Mahoney said the court should not conclude that such a remedy is “permanent.” “There are two things that can happen that will make this come to an end,” she said. “The first is that the number of high-achieving minorities will continue to grow, and the Law School will (someday) be able to enroll a sufficient number without having to take race into account.” Second, she said, “We could reach a point in our society where the experience of being a minority does not make such a fundamental difference in (people’s) lives.”

Gratz v. Bollinger

Attorney John Payton, arguing on behalf of the University in the undergraduate case (Gratz v. Bollinger), began his remarks by addressing the issue of whether affirmative action serves to break down or reinforce stereotypes, a topic the opposing attorneys and several justices had brought up during the Law School arguments.

Students come to Michigan, he said, from largely segregated backgrounds in which they “have rarely had experiences across racial or ethnic lines.”

The diverse environment created at the University allows them to set aside previously held stereotypes through their interactions in small settings such as classrooms, residence halls and coffee houses.

Such learning is only possible, however, if minority students are present in sufficient numbers to create a “critical mass,” he explained. “If there are too few African American students, there’s a risk that those students will feel that they have to represent their group, their race. 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.”

The educational benefits of diversity, Payton said, “do not depend in any way on the assumption that, for example, all African Americans think alike.”

Pressed by the justices for what number of minority students constitutes a critical mass, Payton said, “There’s a false precision here that everybody wants, which is, ‘Tell me exactly what this is.’ I don’t think it exactly works like that.”

Scalia asked both Mahoney and Payton whether the University has gotten itself into this predicament by requiring such high academic standards. “If [having racial diversity] is indeed a significant compelling state interest, why don’t you lower your standards?” he inquired of Payton. “You don’t have to be the great college you are; you can be a lesser college if that value is important enough to you.” And Justice Clarence Thomas—who is known for rarely asking questions of attorneys—raised the same issue toward the end of the arguments, saying, “Now, I know you don’t want to make the choice, but will you at least acknowledge that there is a tension [between being an elite school and having a diverse student body]?”

“We have great educational institutions in this country,” Payton said. “The University of Michigan is one of them. I think we are the envy of the world.” If the decision is between having “a poor education for the essentially white students,” he said, “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.”

Kolbo said the court should not rely on the judgment of educators to define what is fair. “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 the protection of the Constitution’s guarantee of equality to all individuals.”

Added Olson: “The Michigan Law School and the University of Michigan ultimately must make a choice. It may maintain its elitist, as it refers to it, selection process without regard to race, or it may achieve the racial diversity it seeks with race-neutral compromises in its admission standards. But the one thing that it may not do is compromise its admission standards or change its admission requirements for one race and not another. That is forbidden by the Equal Protection Clause of the Constitution.”

During the arguments, the justices asked Kolbo whether there were any circumstances under which race legitimately could be considered. “I think they would have to be extraordinary and rare, perhaps, rising to the level of life or limb,” Kolbo said.

Responded Justice Stephen Breyer: “The other side says 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, etc., that this is an extraordinary need to have diversity among elites throughout the country. That without it, the country will be much worse off. In fact, the country might not function well at all. All right, now, how can you say that isn’t extraordinary? That isn’t a matter of life or limb for the country?”

Summarizing his argument, Payton said, “When Justice Powell said in Bakke that it’s not too much to say that the nation’s future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this nation of many peoples, I think that statement was absolutely correct then. I think it has never been truer than it is today.

“This is of enormous importance—not just to the University of Michigan, I’d say to all of higher education and I think to our country as a whole—to be able to do things that bring us together, that bring us understanding, that result in tolerance.” These efforts, he said, bring us “closer to the day that we all look forward to when, in fact, we are beyond some of these problems that we’ve been discussing rather intensely here today.”


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