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Maureen Mahoney
The Grutter decision is "not likely to be undone anytime soon,” litigator Maureen Mahoney said.

Posted April 1, 2004
Grutter Litigators Explain Strategies Used to Win Affirmative Action Case

Students and professors got a lesson in the anatomy of a Supreme Court case March 30, as attorneys who worked on one of the most publicized cases before the Court in years—Grutter v. Bollinger, which upheld use of affirmative action in higher education admissions decisions—dissected their strategic approach in arguing the case. Latham & Watkins attorneys Maureen Mahoney and Scott Ballenger ’96 spoke at the event, which was sponsored by the Student Legal Forum and the Center for the Study of Race and Law.

“We never get tired of talking about this case,” said Mahoney, who argued Grutter before the court and has won 11 of her 12 Supreme Court cases. Figuring out what strategies to follow made for some “tough decisions along the way.”

The case was handled early on by another law firm, but Latham & Watkins got involved after the University of Michigan won its case in the Sixth Circuit Court of Appeals, and a trip to the Supreme Court appeared eminent. By that time, the University wanted additional counsel, and the resulting argument and brief emerged from the collective efforts of Latham & Watkins, Wilmer Cutler Pickering, local counsel Butzel Long, and the University of Michigan’s counsel’s office.

The first decision the team faced after the Sixth Circuit win was whether to oppose certiorari—their opponents’ appeal to have the case heard by the Supreme Court. Although the law school had won in the Sixth Circuit, they didn’t receive the conservative judges’ votes, portending a possible defeat in a sharply divided Supreme Court.

“The risk of loss was just too high to concede that the court should just take the case,” she said. Affirmative action programs in higher education were still legal in the vast majority of states, she added, and losing could have a devastating effect on schools. “It was a risky proposition to say you’d win with that court.”

But others thought the case was strong on the facts. “There was some feeling that this was the case to take [to the Supreme Court],” she said.

Ultimately, the team decided to oppose cert, but in its petition asked that if the Court takes the case, it should include the undergraduate case as well—not because it would act as the sacrificial lamb for winning the law school case, but “we wanted to win both cases.”

Ballenger
“A law school can’t grapple [with issues affected by race] with an all-white student body,” Ballenger said.

In determining their strategy, the attorneys considered competing approaches. The NAACP Legal Defense and Educational Fund (LDF) attorneys proposed an argument based on the idea that the 1978 Bakke decision, which approved affirmative action but not quotas, was a defeat for civil rights, as Ballenger, who worked on writing the Grutter brief, explained. “We didn’t think that was in the limits of the possible,” he said.

Some LDF arguments influenced their case, however. The LDF argued that the LSAT uses too much “academic English” that minorities don’t use at home. Ballenger pointed out that studies have also shown what researchers called a “stereotype threat”—evidence that minorities do worse in timed tests when they feel like they are representing their race. The LDF also introduced evidence about institutional racism in secondary schools, and problems with campus climates and grading in college. Furthermore, the LDF noted that the lower LSAT scores minorities register don’t correlate with success after school, an argument the Latham attorneys did use.

The problem with the LDF’s overall argument, Ballenger said, was that it could be misconstrued as suggesting all academic standards be abandoned. It was important to Michigan to defend being academically selective.

“The [NAACP] intervenors’ argument was giving away half of what we wanted to win,” he said.

Ballenger played an audio clip of Mahoney’s argument to show how the issue played out under Justice Antonin Scalia’s withering questioning. Scalia argued that Michigan created its own problem of being an elite law school, knowing the result would to a large degree exclude minorities. He criticized calling racial diversity a “compelling interest” in this context. Mahoney responded that nothing suggests the law school has to choose between academic excellence and diversity.

Ballenger said Scalia seemed to suggest the issue was only really a problem for elite public law schools, but Title VIwhich bans discrimination under federally assisted programs on grounds of race, color, or national originalso applies to private schools that get federal funds or whose students get federal loans.

Mahoney noted that only Justices Scalia and Clarence Thomas voted against the idea of academic excellence and diversity as compelling interests—Chief Justice William H. Rehnquist abstained on that issue.

“Given that vote lineup . . . [on that threshold issue], it’s just not likely to be undone anytime soon,” Mahoney said of the court’s decision.

Another strategy the lawyers debated revolved around amicus briefs and whether they were worth the effort. “It turned out to be extremely valuable,” Mahoney said. They had planned to limit the number of amicus briefs because their effect might be diluted in greater numbers, but they failed on that count. Of the 103 amicus briefs, many of which were sponsored by multiple organizations, about 90 supported race-conscious programs. Supporters included Fortune 500 companies, the Ivy League, educational associations, and importantly, one brief from high-ranking military leaders, including retired Gen. Norman Schwarzkopf. In that brief, the leaders argued race-conscious programs were necessary for a diverse officer corps.

“These briefs just don’t happen,” she said of the key brief. “We didn’t write the brief, but we did make sure it got done.”

Mahoney said the briefs were clearly influential; Justice John Paul Stevens has since said the power of the briefs could not be ignored, and said he based his decision on the idea that the issue should be left to the democratic process. Justice Stephen Breyer made similar remarks at the Law School in February. During argument, Justice Ruth Bader Ginsburg quizzed the U.S. solicitor general about his contention that race-neutral programs could be used, when all the military academies currently have race-conscious programs.

In forming their strategy, the attorneys also discussed what limiting principle they could find to get enough justices to sign onto the idea of race-conscious programs. Ballenger said he wondered whether he could make anything out of Shaw v. Reno (1993), in which Justice Sandra Day O’Connor said consideration of race in districting does not necessarily trigger strict scrutiny—it would only be triggered if race were the predominant factor in drawing district lines. Ballenger said they weren’t sure whether a predominance test would supply enough of a limiting principle to satisfy the court. It also was unclear what using this standard would mean in the admissions context. Ultimately, they used some of Shaw’s rhetoric in their case, but within the context of strict scrutiny. “Some of that language did make its way into various opinions of the Court,” he said.

They also examined cases in the academic world, like Bakke, to consider what role academic autonomy plays, but were concerned that the court would think they were asking for a bye for academic institutions. “Frankly, it just seemed like too big of a risk,” he said.

The attorneys wanted to acknowledge the need for limits on race-conscious programs; for example, they didn’t want to argue for a rigid quota. The need for diversity seemed more apparent in law schools at first than in undergraduate institutions. “A law school can’t grapple [with issues affected by race] with an all-white student body,” he said. If you’re studying math at an undergraduate university, it’s a more difficult case, although you can argue that the school’s residential setting is an education in citizenship, and thus race would be an important factor.

Another ripple in court cases was that race-conscious programs should not impose an excessive burden on non-minority applicants. To address that issue, their brief analyzed how many admissions decisions were really changed by consideration of race.

“It tops out at about 2 percent of overall admissions decisions made,” he said. Test score gaps are misleading, he added. If a school institutes a race-neutral system of admitting all applicants who have LSAT scores above 167, there is still a gap between races.

Justice O’Connor made it clear in earlier decisions that the court was never going to approve a compelling interest that was unlimited in duration, Ballenger said, so in the end they contended that “once [minorities] just get a little bit closer [to white test scores], it will be possible to pull together all kinds of race-neutral alternatives.”

Mahoney said before the Court that the need for such programs would dissolve if minorities’ academic achievement levels out with whites, or if society reaches a point where race didn’t make such a difference in Americans’ lives.

Scalia’s repeated questions about quotas “turned out not to be such a big deal,” Mahoney said. The school acknowledges it had a flexible goal of how many minorities should be admitted, and from 1993-2000 the law school’s yearly enrollment ranged from 42 to 73. Ultimately only Justice Kennedy said the system was a quota. “Even if it sounds technical, we were right about the definition of a quota,” she said.

Their opponents reduced the complexity of the admissions data to three variables—GPAs, LSAT scores, and race. The law school’s response was to show that the actual GPA difference was that between an A- and a B+, and an LSAT differential of 7 to 9 points. They noted that some whites were accepted with lower scores than minorities who were rejected.

Mahoney added that there was no evidence to indicate that blacks were stigmatized by being viewed as the recipients of affirmative action, adding that minorities go on and succeed in ways that are indistinguishable to whites.

In response to a question, Mahoney said she did attack race-neutral alternatives, like the Texas plan that allows the top 10 percent of high school students into the University of Texas. “We did in fact mess with Texas,” she joked. “We decided in order to win we had to.” The plan doesn’t make sense, she said, and sends some kids from poor schools unprepared to college, while the next five percent in top schools aren’t admitted. “I think the court understood that.”

Ballenger added that the plan is unexplainable under any grounds except to create racial diversity, so it violates previous Court decisions itself.

If the Court thought there was an alternative, Mahoney explained, they would lose. In their favor, powerful data showed you could not get meaningful numbers of minorities into elite schools without taking race into account. For example, in the 2000 national applicant pool, 3,100 had a 3.5 GPA and 165 LSAT score or higher, but only 26 African-Americans met the same standard. “ Michigan couldn’t get them all,” she said. “The school wanted more than a handful.”

Asked about the importance of Justice O’Connor’s vote, Mahoney noted that “she does tend to like Justice Powell’s jurisprudence.” Powell wrote Bakke’s majority opinion.

To prepare for her oral argument, Mahoney said she participated in three moot courts, one with members of the Michigan law faculty, which she called a highlight of her career. She said it’s most important to discipline yourself about how to anticipate questions and “really memorize the record facts so you’ve got them on the tip of your tongue.”

Both Ballenger and Mahoney had experience with conservative jurisprudence; Ballenger had clerked for Justice Scalia and Mahoney for Chief William H. Justice Rehnquist. Mahoney said it may have helped her think like a conservative; other lawyers might have had grander visions of the equal protection clause.

Asked about whether oral arguments or briefs were more important to the Court, Ballenger said nine times as many cases are lost in argument as won, and justices often use oral argument to trip up attorneys. “It’s much more likely that you’re dancing among minefields that have been laid than arguing the case [in oral argument],” he said.
• Reported by M. Wood

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