>> this is not about governor

bush. it is not about me. it is about you. i want to come back to something i said before. if you want somebody who believes that we were better off eight years ago them are now and that we should go back to the kind of policies we had then, emphasizing tax cuts mainly for the wealthy, here is your man. if you want somebody who will fight for you and who will fight to have the middle-class tax cut. then i am the -- your man. i doubt anybody here makes more than $330,000 a year. if you do, you are at the top 1%. >> it would be a violation of the rules. >> i am not dora to ask. but, if everyone here in this audience was dead on in the middle of the middle-class, then the tax cuts for every single one of you all added up would be less than the tax cut his plan would give to just one member

of that topple wealthiest 1%. the judge to yourself whether that is fair. >> 50 million americans get no tax relief under his plan to request that is not right. >> secondly, we have had in the fighting. it is time to unite. talk about eight years. in eight years have not done anything with medicare, social security or the patients' bill of rights. >> the presidential 10 hall of bill gates -- town hall debate began in 1992. ever since, hopefuls have taken questions in the same town hall style. tonight, what president obama and mitt romney in the town hall debate. coverage but at 7 eastern. -- starts at 7 eastern. tomorrow, we will preview the presidential debate between president obama and mitt romney. our guest is washington times

political columnist charles hur t. is followed by a look at the impact of non-citizens on the number of electoral college votes each it is allocated. we are joined by american university professor leonard steinhorn. later, a look at the 50th anniversary of the cuban missile crisis. the director of harvard university's center for science and international affairs trans as from boston. washington journal with your calls, tweets and emails live 7:00 a.m. eastern on c-span. ohio rep jim jordan is our guest on newsmaker this weekend. the chairman of the republican study committee discusses the top 12 campaign. and the congressional investigation into attacks on u.s. consulate the pope and gothic. -- consulate in benghazi.

news makers, some day after washington journal at 10:00 a.m. eastern and then again later at 6:00 p.m. eastern on c-span. >> the supreme court heard oral argument wednesday on fisher v. university of texas, a case that could determine the future of affirmative action. abigail fisher, who is white, was denied admission to the university of texas at austin to richie suit, arguing that racial minorities with force credentials were accepted at had a fair -- ahead of her. she says and violates the guarantee of equal protection. this is about an hour and half. >> well, i get to say that this is case number 11-345, fisher against the university of texas at austin. and you get to say --

>> mr. chief justice, general suter trained me too well. mr. chief justice, and members of the court, and may it please the court, the central issue here is whether the university of texas at austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the equal protection clause, to abigail fisher met the two tests of strict scrutiny which are applicable. first -- >> mr. rein, before we get to that, because the court is supposed to raise it on its own -- the question of standing. the injury -- if the injury is rejection by the university of texas, and the answer is no matter what, this person would not have been accepted, then how is the injury caused by the affirmative action program?

>> well, justice ginsburg, the first injury that was before the court was the use of a system which denied equal treatment. it was a constitutional injury, and part of the damage claim was premised directly on the constitutional issue. >> how do you get past texas v. lesage with that injury, which says that mere use of race is not cognizable injury sufficient for standing? >> lesage was litigated on its merits, and the question was whether lesage could carry his case when -- on summary judgment when it was apparent that his complaint, which was that he was denied access to the graduate program at the university of texas, was not sustainable. as i said -- and there are several factors in this case that are quite different. first, there is a constitutional injury as such, and the court has recognized it. second, the fact premise, she could not have been allowed in under any circumstance, was

never tested below, wasn't raised below. it comes up in a footnote in >> can i go to another side? she's graduated. >> correct. >> she disclaimed the desire after her application to go to the school at all. she was permitted to apply for the summer program and get in automatically, and she didn't, correct? >> no, that's not correct, your honor. she -- she was not automatically admitted. she was considered for the summer program and rejected. you are talking about the cap program, where she could have attended a different university in the texas system, and had she been able to achieve -- >> but she's graduated. >> she has graduated. >> injunctive relief, she's not going to get. so what measure of damages will she get or will she be entitled to? >> well, that issue, of course, is bifurcated, and we've reserved the ability to >> but you have to claim an injury, so what's the injury >> well -- >> that you're claiming that would sustain a claim of damages? >> the denial of her right to equal treatment is a constitutional injury in and of itself, and we had claimed certain damages on that.

we -- we started the case before it was clear whether she would or wouldn't be admitted. >> you still haven't answered how lesage gets away from that >> well, if there's >> but if there's a -- give me another. >> well, i think -- >> damages question. >> on the -- if we then, on remand, were to assert damages contingent upon the fact that she should have been admitted to ut and was not admitted, we would then have to prove that but for the use of race she would be admitted. that's the thrust of lesage. whether we can prove it or can't prove it is something you can't tell on this record. it's merely asserted. and i would point out that texas said below, there was no way to determine that issue without >> what damages? >> we've had cases involving alleged discrimination in state -- state contracting, and we haven't required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise, have we?

>> no, sir. >> it's -- it's been enough that there was a denial of equal protection. >> that is our correct, and that is our first premise. and i would say that the same issue was raised in bakke. and in bakke, the contention was he couldn't have gotten into the medical school; therefore, he has no case. the court said, in footnote 14 to justice powell's opinion, that's a matter of merits; it is not a matter of standing. i think in parents involved, the same type of contention was made with respect to the louisville class plaintiffs whose son had been admitted to the school of his choice, and the court said damages are enough to sustain standing. there is a live damages claim here, and i don't think there is a question of standing. >> her claim is not necessarily that she would have been -- would have been admitted, but that she was denied a fair chance in the admission lottery. just as when a person is denied participation in the contracting lottery, he has suffered an injury. >> yes, justice scalia, i agree with that.

>> if you are going to the merits, i want to know whether you want us to -- or are asking us to overrule grutter. grutter said it would be good law for at least 25 years, and i know that time flies, but i think only nine of those years have passed. and so, are you? and, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on? >> justice breyer, we have said very carefully we were not trying to change the court's disposition of the issue in grutter, could there be a legitimate, a compelling interest in moving -- in using race to establish a diverse class. what -- the problem that we've encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass >> so your question is whether

-- your point is, does your case satisfy grutter? is that what you're arguing? >> we litigated it on that basis, yes. >> well, how do you want to argue it right now in the next ten minutes? i'm interested because i have a very short time to get my question out, and i need to know how you are going to argue it. >> well, justice breyer, our argument is we can satisfy grutter if it's properly read. what we've seen -- >> may i ask you on that specifically, let's take away the 10 percent solution. suppose the only plan were the one that is before the court now, no 10 percent. this is the exclusive way that the university is attempting to increase minority enrollment. then, if we had no 10 percent solution, under grutter would this plan be acceptable? >> well, i think that there would be flaws under grutter even if you assumed away something that can't be assumed away because it is a matter of texas law, that is, there is a top 10 percent program, and that --

>> well, then the question is can you have both? but it seems to me that this program is certainly no more aggressive than the one in grutter -- it's more -- in fact, more modest. >> well, i don't agree with that, and let me explain why. in order to satisfy grutter, you first have to say that you are not just using race gratuitously, but it is in the interest of producing a critical mass of otherwise underrepresented students. and so to be within grutter framework, the first question is, absent the use of race, would we be generating a critical mass? to answer that question, you start -- you've g to examine in context the so-called soft factors that are in grutter.

you know, are -- is there an isolation on campus? do members of minority feel that they cannot speak out? >> the one social studies that this university did said that minority students overwhelmingly, even with the numbers they have now, are feeling isolated. so what do -- why isn't that even under your test? we can go back to whether substantial evidence is adequate, is necessary, or not. why does their test fail? >> well, the survey was -- a random survey. it's not reported in any systematic way. they evidently interviewed students. and it was all about classroom isolation. it wasn't about >> was it done before or after they announced the decision to reinstitute racial quotas? >> it was done after president faulkner had made the declaration they were going to do it. it was done before. >> which came almost immediately after our decision on grutter. >> on the -- i believe, on the same day. >> and by the way, do you think that grutter -- this goes to justice breyer's question -- do

you think that grutter held that there is no more affirmative action in higher education after 2028? >> no, i don't. >> was that the holding of grutter? >> i agree it might, but i want to get to the question, see what i'm trying to pinpoint, because we have such a limited time. and to me, the one thing i want to pinpoint, since you're arguing on that this satisfies grutter if properly understood, as you say that. in looking up, we have a two- court rule. and two courts have found, it seems to me. that here there is a certain -- there is no quota. it is individualized. it is time limited. it was adopted after the consideration of race-neutral means. each applicant receives individual consideration, and race did not become the predominant factor. so i take those as a given. and then i want to know what precisely it is that grutter required in your opinion that makes this different from grutter, in that it was not satisfied here?

the ones i listed two courts say are the same. so maybe there's some others. >> i am not sure we agree with those courts. >> we have a rule that two courts say it, we are reluctant to overturn it. that is why i mention it. >> considering the case of alternatives, it worked as well >> there are facts and there are back. if i might try to answer your question, there was no effort to try to establish even a working target for critical mass. they simply ignored it. they never ask the question, absent the use of race can we generate critical mass? so -- i mean, that's a flaw we think is in grutter. we think it's necessary for this court to restate that principle. now, whether that --

>> that -- that's a normal fact that we accede to two-court holdings on: whether there is or is not a critical mass? >> no. i -- >> it's a weird kind of a fact. >> and i'm -- i'm not saying -- >> it's an estimation, isn't it? a judgment? >> justice scalia, that is correct. and in addition, the courts didn't find whether a critical mass -- >> so could you tell me what a critical mass was? i'm looking at the number of blacks in the university of texas system. pre-grutter, when the state was indisputably still segregating, it was 4 percent. today, under the post-grutter system, it's 6 percent. the 2 percent increase is enough for you, even though the state population is at 12 percent? somehow, they've reached a critical mass with just the 2 percent increase?

>> well, we don't believe that demographics are the key to underrepresentation of critical mass. >> no -- putting aside -- i don't -- i'm not going to quarrel with you that if demographics alone were being used, i would be somewhat concerned. but you can't seriously suggest that demographics aren't a factor to be looked at in combination with how isolated or not isolated your student body is actually reporting itself to feel? >> well, i think if you start to split out subgroups of minorities, you mistake i think what i think is the proper thrust of grutter, or at least ought to be. >> it might be -- it might be insulting to some to be thrown into a pot. >> why -- why don't you seriously suggest that? why don't you seriously suggest that demographic -- that the demographic makeup of the state has nothing to do with whether somebody feels isolated, that if you're in a state that is only 1 percent black that doesn't mean that you're not isolated so long as there's 1 percent in the class? >> certainly -- racial balance -- >> i wish you would take that position, because it seems to me right.

>> justice scalia, racial balancing is not a permissible interest, and we are constantly -this court has constantly held not a permissible interest. and that is something we certainly agree with. trying to respond to justice sotomayor and in the framework of grutter, what you're looking at is, do you -- does this person, member of a so-called underrepresented minority -- it's a concept we don't necessarily accept, but it's texas's concept -- are they isolated? are they unable to speak out? and i think we've always said if you have a very large number, as texas did in 2004 when they ostensibly made the decision to reinstitute race, they had a 21 percent admission percentage of what they called the underrepresented minorities. they also had about an 18 percent admission ratio of asian-americans.

so on campus, you're talking about -- about 40 percent of the class being minorities. >> but the test is -- the test is, in your opinion -- i have to write this in the opinion, you say -- the proper test of critical mass is is the minority isolated, unable to speak out. that's the test. and it wasn't in grutter or was in grutter? and in your opinion, it was in grutter. >> yes. it said expressly in grutter. >> isolated. all right. and the reason it was satisfied there and not here is? >> in grutter, the court assumed that the very small number of admissions, minority admissions, looked at as the whole -- and it was looked at as a whole, only as a whole in grutter -- would have yielded about 3 or 4 percent minority admission in a class of 350, which means about 12 to 15 students -- >> so what are you telling us is the standard of critical mass? at what point does a district court or a university know that it doesn't have to do any more to equalize the desegregation that has happened in that particular state over decades, that it's now going to be stuck at a fixed number and it has to change its rules.

what's that fixed number? >> we -- it's not our burden to establish the number. it was the burden of the university of texas to determine whether -- >> well, they told -- they told the district court. they took a study of students. they analyzed the composition of their classes, and they determined in their educational judgment that greater diversity, just as we said in grutter, is a goal of their educational program, and one that includes diversifying classes. so what more proof do you require? >> well, if you are allowed to state all the grounds that need to be proved, you will always prove them, in all fairness, justice sotomayor. the question is, they have -- >> well, but given it was in the evidence, what more do you think they needed? i think i hear all you saying in your brief is the number's fixed now, they got enough, no more is

necessary. >> what we're saying in the brief was they were generating in fact a very substantial number of minority presence on campus. >> that's enough now. >> and -- >> that's what you're saying. >> no. and that immediately thrust upon them the responsibility, if they wanted to -- you know, essentially move away from equal treatment, they had to establish we have a purpose, we are trying to generate a critical mass of minorities that otherwise could not be achieved. >> tell me -- tell me what about their use of race did not fit the narrow tailoring, not the necessity prong as you've defined it, but the narrow tailoring that grutter required? how is race used by them in a way that violated the terms of grutter? >> and for this purpose >> assuming that the need is there. i know you're challenging the

need. >> put -- put aside whether this was necessary and whether it was an appropriate last resort in a quest for diversity and critical mass, because grutter's not without limits. but i'll put that aside and let me come directly to your question. first of all, if you think about narrow tailoring, you can't tailor to the unknown. if you have no range of evaluation, if you have no understanding of what critical mass means, you can't tailor to it. >> so you have to set a quota for critical mass? >> no. there's a huge difference, and it's an important one that is not well put out by the university of texas. having a range, a view as to what would be an appropriate level of comfort, critical mass, as defined in grutter, allows you to evaluate where you are -- >> so we won't call it a quota; we'll call it a goal, something grutter said you shouldn't have. >> well, justice sotomayor, i think it's very important to distinguish between the operative use of that range, in other words, that's where we are, and we're going to use race until we get there every year in consideration of each application, which was a problem.

>> boy, it sounds awfully like a quota to me that grutter said you should not be doing, that you shouldn't be setting goals, that you shouldn't be setting quotas; you should be setting an individualized assessment of the applicants. tell me how this system doesn't do that. >> this system doesn't -- i mean, it's not narrowly tailored because it doesn't fit. there are certain forms of grutter that it follows. it -- >> mr. rein, do you understand what the university of texas thinks is the definition of a critical mass? because i don't. >> well, it simply reiterated the language of grutter. they have no definition. they can't fit >> mr. rein, it seems to me that in your talking about critical mass, you are relying entirely on the 10 percent is enough. they don't -- they got minorities through the 10 percent, so they don't need any more. and i tried to get you rigidly to focus on -- forget the 10 percent plan. this is the entire plan. >> well, let me tell you that if you look outside the top 10, at the so-called ai/pai admits only -- forget the top 10 for a minute, they were generating

approximately 15 percent minority admissions outside the top 10, which is in -- above what the target was in grutter. so this is not grutter on its facts. it's vastly different. this is a -- >> because of the 10 percent. >> no. i am talking about only the non- top 10% of admissions. 15% of those were so-called underrepresented minorities. this is without the top-10. the top-10 is also a major generator of admissions.

>> this was before the adoption of the plan. >> that was correct. >> now i am confused. i thought the figure was a ride that with the 10% plan. >> no. with that 10% plan, it is much higher. in 2004, it was much higher with asians, it was over 30%. i am isolating to non- top 10 in admissions. the average close to that over time. the minority presence is a combination of two, in fact, but the system, which was adopted, as texas says, the first thing they tried, to accommodate to their loss of the ability to use race that came up directly. that was their first response. to the to a more balanced admissions program between academic and personal achievement index. >> could you comment on this, then i hope we could get back to the question from justice scalia. you argue that a race conscious ignition plan is not necessary

because it did so few people. so few minorities. i had trouble with that. what is the problem --? let's assume it resulted in the admission of many minorities. then you come back and say this shows we or wrongly excluded. >> assuming consistency, are you saying you should not impose this hurt or this injury generally for so little benefit. is that the point. yes, that is part of it. the second is the question of reasonably available alternatives. if we take texas at their word, and they say that they are satisfied with the way they apply race, we tried to measure what difference it is making, and could you achieve the same thing with a reasonable alternative. that was a question as in grutter. >> the race-neutral alternative is the 10% plan? >> it includes an extension of the 10% plan. it was a major generator of minority admissions. >> is it really race-neutral. the only reason they can stick to the 10% plan was to increase minority enrollment. the only way it works is if he were to have some -- heavily separated tools. worse than that, i mean if you want to go to the university of texas under the 10% plan, you go to the low performing schools. you do not take challenging courses because that is how you will get in to the 10%.

maybe the university is concerned that that is an inadequate way to deal with it. >> justice ginsburg, a lot of that is speculative. there is nothing in the record to support that. they have never surveyed the pac-10. -- the top 10 admits. >> 10% plan is not been posed by the university. it is not their option. it is not them saying this is not good for education. it is imposed by state law. anybody that is in the top 10% of any school in the state gets into the university of texas. >> in the fifth circuit said you cannot disregard the consequence because it is a law. that is not the only alternative. one simple alternative is looking at the yield. what percentage of the amended minorities are they encouraging?

>> this underlines my thing here, and i did look up the figure. before the 10% plan, and the african-american side it averaged 5% a year pretty steadily. after 10%, it went down a little bit, not a lot, but down to 3.5%, maybe 4% maybe, that they introduced grutter and it is back to 5%. is that a lot? is that a little? there are several admissions officers, several thousand universities, what are we going to say that was not shown in grutter that will not take hundreds or thousands of these people and have federal judges dictating the policy of the mission for these universities?

i am looking for certainty. i saw what happened. we saw the numbers. >> i will answer your question. >> you could answer it later, if you want, or not answer it at all. [laughter] >> i am perfectly happy to answer your question. i think the increase you are looking at was pre-grutter, generated before 2004. they do not depend on ways to do it. that is why we say there is an alternative, which would serve increasing yield, or reading the pai, a critical element, putting more emphasis on the social and economic factors. >> now, will tell the university is how to run and way qualifications. >> it is not the job of the court to tell them how to do it.

it is their job to examine the alternatives available to them. >> but you defend held the use of race overwhelmed those other factors. >> the question is not whether it overwhelms. they admit there are admissions that would not have taken place before. somebody else would have had that place but for the use of race. to answer the question fully, you have to analyze race-neutral alternatives, and if you look at parents involved, that was the critical question. >> perhaps you could summarize by telling us from your point of view, this plan still scrutiny because the objective is inappropriate or ill-defined, or because the implementation is defective.

which, or both of those are you arguing? >> we have argued both. >> in what respect does the plan fail the strict scrutiny under both of those categories? >> under the first category, was it a necessary means of pursuing a compelling interest, we do not believe they have shown any necessity for doing what they're doing. race should have been a last resort. it was a first resort. they failed in every respect. if you go to narrow tailoring, what we say is if they did not consider alternatives, and their treatment of asian-americans and hispanics makes an incomprehensible distinction. they say we do not worry about asians. there are a lot of asians. is a demographic measure. if you are trying to find individual comfort levels, breaking it down between african-americans and hispanics -- >> you are the ones in your brief who has assumed that their value in different races

differently, but asian numbers have gone up, under however they have structured this pai, and as i understand their position, race is balanced against other issues like social economics, the strength of class's people took. it is not a stand-alone. even a white student, i presume, who goes to entirely black or latino school and becomes class president would get points because he has or she has proven that they foster or canned dealing in a diverse environment.

that is how i understood their plan. it is not because of race. it is combining that with other factors. >> there is a plus because of race. there are many other factors. the white student president of the class in an ethnically different school is a measure of leadership. leadership is an independent factor. he is not getting that point because of his race. he is getting that point because of his leadership. that is race-neutral criteria that could work for anybody. race is an independent and-on -- add-on. they say they could contextualized. it is not narrowly tailored and it gives mistreatment to asian americans because they are minorities as well. if it depends on the question factor, there is no way to fit with they are doing to the solution of the problem, which may use as a major foundation of their proposal, which is the

non-diverse class compared. there's no correspondence there. i see my time is up. >> we will afford you rebuttal time. mr. garre. >> thank you. for two reasons, it is held under this court. it is indistinguishable from individualized considerations of africans in their totality of tell been grutter. >> i've put that in the narrow tailoring category. it is not the necessity kong and -- prong and the most of his arguments have been centered on that.

>> that was the second point. the holistic process is a necessary counterpart to the top 10% loss, and were systematically to offset the systematic drawbacks of that law in the cheating and interest that is indisputable in assembling a broadly diverse student body. >> i need to figure out what these numbers mean. should someone who is one quarter hispanic check the hispanic barks or some other box? >> your honor, there is a multi- racial blocs. >> i suppose one person who is 1-quarter hispanic's determination would be that he is one-quarter hispanic and would check that box. >> they would make that determination themselves.

if anyone violated honor codes, -- >> would it violate if they were one-eighth hispanic? >> i do not think it would appear that i don't think that makes a difference in grutter. >> you do not check in any way? >> we do not, and no other college does. >> how do you know you have a 15% minority? >> the same with the determination is made in any other situation. >> what is that way? >> do they have to sell identified? -- self-identified? >> they do not. >> how do you know they're not just a critical mass class-by- class? how do they figure out if a particular class does not have enough?

>> the university has never asserted a compelling interest in any single question. it simply looks the question of diversity as one dimension. >> i do not know what you're talking about. it is either a factor that is barely used, or it is not do they look to individual classroom diversity or not, and if so how do they decide? >> this court, in grutter, said when given -- given fact, could not overrule. >> how did the to the question back to their require everybody to check a box? do they have somebody figured out this person looks 1-32nd hispanic and that looks enough?

>> they did a study that into account the same considerations in in a moment. >> what kind of a study. >> it is in the supplemental joint appendix. >> it does not explain how they go out classroom-by-classroom. >> there are student lists in each classroom. >> student lists that have raised identified? >> no, your honor. every university knows what student is taking the classes. if you want to gauge better city, go back to -- >> what they checked on the form. >> your honor -- >> that is a yes or no question. you go back to what they said on the form?

>> that is information available to the university if they check it on the application. i want to be clear on this study. it is only one of many information points. >> on class from diversity, how does the non-10% for their diversity? maya understanding is the university has over -- my understanding is the university has over 5000 class's that classified as small, and the total number of african- americans and hispanics it that it was just a little over 200. how can that possibly do more than a tiny amount to increase class and diversity?

>> first, that two hundred number is erroneous. there have been many more minority candidates. >> per class? >> not on a per-quest basis. with the university found was shocking isolation. >> how many non--top -- non-, 10% at issue are limited in each class? >> we did not look at that issue, but in trying to find holistic -- we did the study before the planet and she was adopted. at that time, there was nobody to admit -- no way to it that you're taking race into account. it to the african-american, 90% -- >> i do not believe i understand your question. you know the total number of african-americans in the engineering class. >> yes, your honor.

>> and the total number admitted under the top 10% class? >> yes. >> subtract eight from b, and you will get c. >> let me explain why the university did not look at that. the time it was conducted, it was before the holistic issue was adopted. in 2003-2004, the determination would not have been as important in just finding out african- americans or hispanics are under-represented minorities present at the university. >> what is the number? what is the critical mass of african-americans and hispanics to the university did you are working to? >> your honor, we do not have one. >> how will we supposed to tell if the plan is nearly tailored to that road? >> looking at the criteria in grutter, which rejected that you could come up with a fixed percentage.

>> this is very from group-to- group, from state-to-state tax is contextual. it could very -- state-to-state? >> is contexture will. it could very. -- is contexture will. it could very. >> is the critical mass dependent on the breakdown of the population of texas? >> no. not at all. it is looking to the educational benefits of diversity on campus. i think we agree on what that means. >> mr. garre, could you explain the critical question, why did the 10% solution not suffice? why was that not enough?

>> let me make a couple points, your honor. if you just looked at the numbers -- we do not but the numbers -- but after seven years, relations have remained stagnant or worse. since 2002, african-american enrollment has dropped to 3%. under the top 10% plan, taking the top 10% of a racially identified high school like a dead person there looks ok and paper, but it does not guarantee diversity that produces educational benefits. >> why does it not? >> because, your honor, as is true for any group, the harvard plan approved in bakke specifically said you want different viewpoints from individuals within the same racial group just as you would from outside of that. >> what kind of the points that political viewpoints?

>> any kind of experience that they grow up with. >> this has nothing to do with racial diversity. you're talking about something else. >> your honor, it impacts the educational benefits of diversity in this sense. the minority candidate that is shown that he or she has succeeded in an integrated environment, has shown leadership and community service is precisely the kind of candidate that will come on campus, help to break down racial barriers, or cross racial lines. . . .

[captions performed by national captioning institute] [captions copyright national cable satellite corp. 2012] >> your honor, let me answer the question. the answer comes almost word-for-word from the howard plan. >> how could any answer to that question be no? being an african-american is a plus factor. >> we want minorities from different back grounds. we go out of our way to recruit minorities from disadvantaged back grounds. >> what you are saying is race that counts above all? >> no, your honor. >> that is the necessary response to the question. >> well, your honor, what we want is different experiences that are going to come under -- >> under-privileged of a certain

race and privileged of a certain race. that's race. >> no, your honor, it is not race. it is the opposite. this court said failing to take into account differences among members of the same race does a disservice. >> but the reason you are reaching for the privileged is so that members of that race that are privileged can be representative, and that's race. >> it is members of the same racial group, your honor, bringing differences. and to say if you took any racial group. if you had an admissions process that only tended to admit people from a particular background or perspective, they would want people from different perspectives. that's the interest that we're discussing here. it is the interest that the harvard plan specifically adopts. >> i understand my plan -- our planned under your precedence. to determine if race is narrowly

compelled to a compelling influence. a critical mass of minority students at the university of texas, but you won't tell me what the critical mass is. how am i supposed to do the job that my court says i need to do? when will we know that you have reached critical mass? there has to be a logical end point to your use of race. what is the logical end point? when will i know that you have reached a critical mass? >> this implicates reuter itself. i understand my friend not to challenge that. they haven't challenged the compelling interest at all. what we looked for, we looked atrophiedback from students about racial isolation they experienced. >> so you conduct a survey and ask students if they feel racially isolated and that's the basis for our constitutional determination? >> that's one of the things we looked at.

another thing is we looked to enrollment data, which showed among african-americans, that african-american enrollment at the university of texas dropped to 3% at 2002. >> at what level will it satisfy critical mass? >> i think we all agree that 3% is not critical mass. >> at what level will it satisfy critical mass? >> when we have a job environment -- >> how am i supposed to decide when we have an environment when particular minorities don't feel isolated? >> part of this is a judgment that the educators will make. >> so when you tell me, that's good enough? >> no, your honor. not at all. you would look to the criteria that we looked at. the enrollment data. the feedback from students. we also took into account, diversity in the classroom. >> would 3% be enough in new mexico, your bordering state, where the african-american population is around 2%? >> your honor, i don't think it would.

i mean, our concept of critical mass is not tied to demographics. it is said that we are not pursuing any demographic poll. it is undisputed that race is only a factor. it is undisputed that we're taking race into account only to consider individuals in their totality. >> mr. garre, i think the issue my colleagues are asking is, at what point and when do we stop defering to the -- defering to the university's judgment that race is still necessary? that's the bottom line of this case. you're saying, and i think rightly because of our cases, that you can't set a quota. that's what our cases say you can't do. so if we're not going to set a quota, what do you think is the standard we apply to make a judgment? >> i think the one that you

would ply is you would -- apply is you would look to whether or not the university had reached an environment where people do not feel like a spokesperson for their race. where the educational benefits of diversity are realized. the reason why university of texas concluded that that environment was not met here, it laid out in several different information points that this can be reviewed. >> that holds for only another what? 16 years? 16 more years, and you are going to call it all off? >> we don't establish that kind of time clock. >> you are defering to gruter, and that's what it says. >> the advocates are. what we would look to is, once we're -- we're looking at this every year. we're looking at it carefully.

>> some of the stuff that will it says you agree with, some of the stuff it says, you don't agree with. >> i don't know that i disagree with anything it says. >> before you are out of time, the other point i want you to answer is the argument based on parents involved. that the game is just too small to warrant using racial criteria. if you have the 10%, you don't need more. how do you answer the argument that it is too small? >> page 138, joint appendix. secondly i point to the fact that african american and hispanic admissions did increase. this has had an important impact on diversity at the university of texas. >> in terms of diversity, how do you justify lumping together all

asian americans? do you think you have a critical mass of cambodian-americans? >> that can be spelled out. >> do you have a critical mass to all the sub -- groups that falls within this enormous group of asian americans? >> we do what it asks us to do. >> if i can, before we get to that, suppose we, that you in your experience identify a numerical category, a numerical standard or designation for critical mass, x percent. during the course of the admissions process, can the admissions officers see how close they are coming to this? >> no. no, your honor, and we don't. on page 389 --

>> you cannot do that? >> we would be monitoring the class? >> isn't that what happened? >> it did. >> are you saying that gruter is -- are you saying that grutter is incorrect? >> no, your honor. >> i'm asking whether you could do that? >> i don't think so. the grutter majority did not understand monitoring for the purposes of reaching a specific demographic. they don't monitor. >> but race is the only one of your holistic matters -- >> they take into account. >> the question is whether race is the only one of your holistic factors that appears on the cover? >> yes. may i have a little more time? >> a little more time and your friend a little more time. >> she cannot show she is

injured by -- injured. pages 415 and 416. what makes clear that miss fisher was not admitted to the fall 2008 class no matter what her race. >> are you arguing that she does not have standing in an article 2 sense? >> yes, your honor. >> you address that in your footnote. we have an obligation to consider every case, and you gave us one footnote in which you say it is hard to see. >> and another part that comes from the brief in opposition that goes to the relief she was requested. the declare tri and -- the declartory and injunctive relief. that is a request for monetary damages. that request is on page 749 of the joint appe in. dix. it is -- the reason why it is not enough to confer standing is she would have paid the

admission fee no matter what policy the university had had. >> what about our jacksonville case which said it is an injury to be forced to be part of a process in which there is race conscious evaluations? >> that injury is not sufficient in a backward looking case like this when you only have monetary damages. in jacksonville and all the other cases, they involved forward-looking claims for declare tri injunkive relief for people who would -- declaratory injunctive relief for people. it is not an answer to jurisdiction for this reason. it is true in a bifurcated case. it says that explicitly. this court has said relief that is not to injury suffered cannot

bootstrap a plaintiff into court. >> it is part of the injury she suffered. it is not the only injury, perhaps. she had to pay an admissions fee for a process in which she was not treated fairly. why shouldn't she get her money back? >> the reason why, your honor, is she would have paid it even if texas did not consider race at all. therefore the payment of her application fee does not remedy the injury she's complaining about. >> if this is easy, do it. if not, don't. i wanted to use accurate numbers. i wanted to find out how many universities actually use the grutter type process. and the admissions process is the only place that has that information. it is public, and i didn't want them to do it.

you are both here, both sides. if you can agree on simply roughly what that number is, i'd like to know it. otherwise i can use pre-grutter numbers which are public. >> your honor, i don't have specific numbers. obviously the briefs being used, and this court recognizes in grutter that many of the best universities have been using these plans for 30 years or more. >> since we're asking questions about this curiosity, i'm curious to know how many -- this is an ambitious racial program here at the university of texas. how many people are there in the affirmative action department at the university of texas? do you have any idea? there must be a lot of people to monitor all these classes and do all this assessment of race.