, you always complained that when your husband was elected, people said to you, are you going to be barbara bush or hillary clinton? >> i would like to be laura bush. >> there's always that they goes on. i read that best truman relies the comic and after eleanor roosevelt, eiffel like munro. -- i feel like munro coming in after. -- cat, both of us have written about -- you have written about the. martha washington. we know she was active politically and in terms of policy. lobbying for the benefits of the campans she had been to

with for eight long years. the revolution. a rowl adams probably break their upbringing civility breaker for bringing in the civility. dolly madison was a figure in american politics. people to have a good sense of. >> i have to say something else about martha washington. she was a very nice lady. mary washington not so much. [laughter] that she not disagree did not have a taste for the role. she said she felt like a prisoner. a state prison. she and knowledge to ride away there is something going on at she understood the american experiment was more than just politics or politics in a different way. she began right away even

though she did not care for it and would rather be at home at mount vernon, she began wondering about protocol. differentto establish protocols. the founders understood it is not enough to have a constitution and a set of laws, we had to remake life in an american way. an americand about manner. abide manners, they did not mean cups or a way of treating each other. she went toward that. as you pointed out among abigail adams not so much. she was much more of a traditional, and political partner to her husband. [laughter] , with a pointed to her influence in politics the extradition laws. it was not until a dolly madison to washington in 1801

that we begin to see a real political animal as first lady. she did have a taste for the job. she establishes so many things we connect with the first lady. the social sphere, the connection to the white house, the role of the charismatic figure. i must say, i sympathize with everybody who followed her. she just sat so much up into place. essentially remained first lady after her successors came in. she rolled over washington for decades. >> i was drawn to her because she was so famous. i did not understand that. i grew up in philadelphia. "charlie brown christmas specials." dolly besson take on

the martha stewart show. martha stewart cap slapping my hand. i kept wanting to talk. marthae the store -- stewart kept slapping my hand. >> she lived long enough to be photographed. as firsto understand ladies have a capacity for personifying if they so choose. this the pattern in american women and politics famous are not. there are two things. one is that our women, real people who do things. then there is this secondary capacity of being a personifying figure, charismatic figure. many at first lady has realized they are larger than life. that is something dolly figured

out. she becomes a figurehead for her husband's administration. james is not terribly charismatic. the very short. he also do not have that capacity. she made at white house into a symbol. although this is happening in 1808. she does not know know that. in 1814, the british is going to bring the capital city area all the work she put in to help the public identify with this house is a call to the white house under her terms is going to pay off. is going to -- it is going to do the surge of nationalism. >> you have written about all of the white -- the first ladies. them carrying this theme through? >> they made it their own. cat ando say, i love

this the first time we have spoke together in public. she has never heard me say this. what you have done to set the tone for all of us is really remarkable work. you have not gotten enough credit for it. [laughter] that if i could tweak that a little bit and bring it brought up to today. , havehese women have done shown amazing encourage because calm when the country is going crazy. there is no other word for it " crazy." inre is interruption partisan politics after dolly. we are breaking into politics

which is a jugular sport which i thought we had gotten rid of if i may be personal for a moment. >> and that period they were. >> they were painting each other in the halls of congress. they were pulling out the guns and shooting each other. if it were looking at was a war with the native americans or american indians. whether it is the civil war. i am going counter historically. or the war of 1812. where you have huge economic depressions where the country is andrally falling apart there is no cash. there is no common currency between states. there is no sense of a union at all. regardlesswomen do of the period they are in, have done what you have done, i do

not know the adjective for it. beautifully. what you did was you listed us up -- lifted us up -- [applause] you did. ad you cannot write that in job description. and you sure cannot go into the role expecting that to be your job area nobody told eleanor roosevelt she was going to be in a fox hole. nobody told her she was going to fly an aircraft and spend five weeks on 17 islands in wartime and have her air drums shattered and go deaf in one ear. she is flying through shooting ballistics -- missiles. you cannot prepare for this. thence she did that,

general had been hesitant for her to do that saw the huge and different she made in troop morale. >> just like martha did. >> he said please come back. >> they went on record in both the press and the memoirs and say it was the single biggest miscalculation of the war was to oppose her visit. you cannot train for that. we can talk about policy and politics. you think to me that is so remarkable about the women who but assumed this position how much brains they have. stamina that is beyond imagination and a willingness to rise above it and just to do it. my beloved pet summit with: a pity party. that is it. pat summit would call it a

pity party. >> grace coolidge said you just do it. been part of her husband's political party. he had excluded her. he became vice president. she is in washington. >> that is right. -- and do you just do what you do when the war is not on and there is not a crisis? when i look at the grace and there are two people i will mention, mrs. hoover and mrs. bush as well. what they did was education. very, very often. they turned to that. you had somewhere in her case who was the first first first lady who graduated from a coed

school. the university of vermont. she had a bit of professional training to teach the deaf. .hat was incredible cal,en she starts to date maybe you can teach the mute to hear. [laughter] .> she had a marital challenge an introverted president. the deaf and blind him that he no were not as today. people looked away. disabilities awareness test. she brought them into society. helen keller came to the white house. that was an important moment for the deaf and blind that the first lady would recognize them and integrate them. she had a great personality. she could draw out anybody.

she was the opposite of the president she made that her work. mrs. hoover, who loved reading and reading.eaders she was head of the girl scouts. she was always ending how to train up. -- thinking how to train up. lou contributed to that. i know this at stanford. she brought her readers to the white house. i was reading a store. when her back was out and she there weredown, people from the mountains who do not know how to read. she was so sick but she received them upstairs because she knew it was important for them to be the first lady even if the first lady was not doing too well.

she said what do you read? here is what i read. read the great works. she was always there. in the background for president hoover and with scouting. scouting is wonderful. i noticed at with mrs. bush. i am a reader, too. when i was observing the book festival and the literacy project and to have another library in their -- library and there.- librarian to send that signal in our time is so important. people who read the books are that are able to handle the emergency's that we just spoke. >> that is absolutely right. many first ladies have the experience as you said of you

are going to do this and then a life happens as with september 11, mrs. bush. i want to come back to that. on the theme of education, even their can can be something different than you would expect. mrs. johnson, she was always interested in education. with the great society and the war on poverty and all of that, people came forward what you need is early childhood education. we know we really need early childhood education. she started head start. it turned out not to be so easy. i love this i never get to talk about it. [laughter] >> i follow instructions. when a- >> congresswoman let me interview her, we were talking about

different policies and i cut by education. and she started telling me the story about how headstart got into -- implemented. the program had been conceptualized, the money had been authorized, but they were coming down to the weier it had not spent the money yet. it was either spend the money or lose it. what mrs. johnson dead was called -- did was call mrs. ford. to blair of them went house. they had phones put in for the three of them. and called every minister every bus driver they knew from the campaign trails because they to get the program up and running. what they did was, we will use these buses, the churches and

different schools will lend us their buses and that is how headstart money first and got spent and the kids got to the classrooms. there is a point to this. , anduity, paying attention bipartisanship, and friendship focusing on an area of expertise that is good for the country. it is a model that we can all follow. get to that part of bipartisanship especially. i had the great honor last summer a speeding and mrs. ford's funeral which she asked me to do and told me what to say. [laughter] she wanted me to talk about that time when every bite was together. dolly madison did that. thomas jefferson would only have the federalist one night and the republicans another night. she brought everybody together

even when they were really imparts in battle. they discover they cannot skip her dinners because that is what -- and that was where everything happened. they had to show up. >> to both of you, i am speaking because i'm a professor and there will be a test. ?hy do we study first ladies we do not do it just because it is nice. and not just because they are there. by looking at the work of women and women who are spouses of presidents, we see things and we pay attention to things we would not if we just paid attention to the officials sphere, press releases. psychological politics, al gore -- eleanor roosevelt is contributing to psychological politics which may be the only politics there are. it means how people feel about how they are being ruled.

they feel that way from the messages they get from their leaders. what these women did was send these messages about how they were rolling. -- ruling. the dirty little secret of american history. from the beginning, we americans have had a fascination with aristocracy. the american revolution against the king. power, world see that we knew. when it came down to legitimize his brand-new nation that nobody was sure was even going to work, they wanted to have aristocracy. we had this crazy moments where john adams is are going to call george washed it my supreme highness. -- george washington my supreme highness. we do not, thank goodness. we call him mr. president.

his wife became a lady washington. then there was queen dolly. she answered that need for legitimacy and authority that we needed. getting back to this idea of bipartisanship. >> it was always a tug-of-war which every first lady has gone through. you have to be elegant enough and glamorous enough and not just personally. people do look up to and see the sense of loyalty. also down-home enough so you do not alienate people in this society. martha washington knew that. , as she arrived in new york much as she loved her second and silks, she arrived wearing -- >> she had a lovely white gown. dolly madison did it the other

way. she combined lavish outfits, --k satin and a crown [laughter] >> tiara. she had a down-home quality and sweetness. this what i have to say about dolly madison. there was not a word for bipartisanship in the early republic. these were people spout one party should rule and anybody else was a traitor. there were two groups of people who thought that. they do not have a sense of working together which was quick to be the hallmark of a democracy was two parties in it. somehow dolly madison understood the system would be to bring people together and make them behave and let them begin to see each other as people of good heart. >> that's was necessary at the time and we were limited to some degree now -- and we are living get to some degree now because

washington did not exist. we were in the boarding houses with people who thought exactly like them. they do not have the ameliorating discussions with other people who may not be exactly like minded except for in social settings. she isy madison's -- famous for redecorating the white house. every body, every member of the ,overnment, their families visitors, diplomats could gather one place. that is amazing. , thereher white house was another place in washington where everybody could meet. , in talking about this i alluded to mrs. bush's situation. education was what she thought

she was going to be doing to briefing the education committee when the first airplane hit the trade towers. and then life changes. all of a sudden, another set of issues come out. the women of afghanistan and the world. >> and that is right. you look at the situation and your risk fund and just to turn on a dime. edat's amazing thing we watch mrs. bush do. women were important to democracy in the middle east. something other people take up later -- picked up later. at the bush center, with a big emphasis of women in democracy. . want to talk about grace she did not expect to be the president's wife.

their status was pretty low in washington. when coolidge was vice president, they were stuck at the willard. she loved animals. she cannot have them. the glitches were like the roosevelt. coolidges were like the roosevelt. she only had a rat. already talking about a vice president he cuts coolidge had not worked out. sadly, she is in the white house. she is waiting outside the white house for mrs. harding to be ready to leave. the prisone that, before has died and the widow is there and you want to show respect for the widow. they did that beautifully. mrs. harding wanted to leave and then she did not. there was another week at the willard.

they were extremely gracious. when a president dies and you come in. theodore roosevelt. and what to do when she is there. what the letters her sorority sisters. -- shethat i am like said i am a alice in wonderland. she rose to it. she understood this is not about her. this was about service. when you see that it is a role and not about you, that is all right. another time, we are going to talk about how that clashes with your marriage. -- the coolidge's, the president and the first lady, they had a terrible thing happen which is their son died. he got a blister on the tennis court and died within about

eight days. >> he was 16 years old. >> just before we got antibiotics. if had been 20 years later, he might would have been saved. >> i was telling amity, i was doing a panel recently and a man stood up and said because of this death, his mother always told him not to wear dark socks because his mother out -- thought the sox did him in. a whole generation was done in. >> how do you mourn in the white house? she knew she had to mourn for the public. for the president. she wore not black but white in morning the following year. she showed how to mourn in the white house. she became a most important

symbol. many, many people lost their children. if you read the letters the papers of mrs. randolph, her secretary. he find that nearly every letter they came to the white house upon the death. they unified her with a great part of the country. >> even given that, the white that she was called sunshine. >> she was the extrovert to the introvert in the marriage. >> they called him smiley. >> it was a joke. that'll constrained that they cannot to mourn if they were not the first couple. one of her ways they were covered and demonstrated leadership what they did not cry in public. it was a different conception. they did not go on any television show.

they did not talking anyway. she wore white. she didn't many activities with children, both of them. what else did she do? she did exercise. you develop a ways. she had a secret service man who was with her who had laid tennis with her son who had been there for the tragedy who helped on did a spruce tree and bring it to the white house to place on the ground. she liked mr. haley. he was important to her. president coolidge was a gymnast -- a jealous man. she was a beautiful woman. one of the most beautiful. she could wear any color. her complexion was like that. when they were in south dakota, she and mr. haley went for a walk. they were in our late. they got lost. transferred her secret service man away.

that because he wanted to avoid scandal. he never let her do anything that would bring scandal upon the white house. wasstory was that calvin cool -- cruel. mr. haley was a highest man. was nothing going on. had a --t service men absolute worst upshot of their marriage. it was an extraordinary marriage. all of his important friends came together, there was no presidential library. they said we will raise money for your papers. it was led by clarence barron of the wall street journal. calvin said all right, you can raise the money but let it be for a cost that i wanted to be for. they did. they raised $2 million. othersbout as much as

have raised for this. at large amount of money. resident coolidge took that money and did not really use it for his papers. -- grace'sto laura's most important project which was the clark school for the deaf in massachusetts where she had taught it was so important. they devoted much of that money to the clark school. and all of the years after, he knew he might die soon him and he had a bad heart. all the years after, she had her an important educational institution backed by the friendship of the glitches -- coolidges. i was thinking as him and he

was talking. the business of coming in after a president has died. there was not a worse example that the sense of tragedy in the nation. handling that is not an easy thing to do. >> and yet she did it. nation had not just lost the lost a firstey lady they were fascinated with. of beth exception truman following eleanor roosevelt, there is not a bigger contradiction in the public's

mind between jacqueline kennedy and lady bird johnson. lucky sometimes. i think we were exceedingly bird was able to build on jackie's work, but may get her own and expanded in a way that really helped the country. , we saw the gut wrenching funeral. we saw john john saluting. of aember being pulled out very republican, very evangelical school. to be pulled into the hallway to be told the president had died. as the only democrat in the

school, it was hard for me both ways. especially in the south. bird, whoe lady understood not have to be a grandmother, but how to be strong and how to comfort and how to lead at the same time and not just lead in the public, but lead behind the scenes. >> if i could talk about the politics of the office. what she was so masterful at doing. she is from texas. i am from memphis. we are in the biggest legislative battle of the 1960s. they will take the 64 civil rights act, which i think never would have passed if john

kennedy had not been assassinated and lyndon johnson would not have been president. there is no doubt in my mind. have passed eventually. >> it would be at least a decade, maybe longer. lyndon johnson is knocking heads the way the -- the only way that knock heads.on can not h lady bird is doing the exact same thing with grace and tact. could do this and have every piece of dirt known to humankind -- [laughter] and then you have lady bird reaching out afterwards and calling the feathers, keeping her own tally on how the votes were going at the exact same

time that she is knowing how to balance. she is knowing how to do had starts. she has tremendous relationships across the aisle. that is something we do not realize. i have always been struck by the between you and senator kennedy. eleanor roosevelt was very close to john foster douglas. -- you would have never think they were friends. do isady bird was able to to clearly say to the country without saying it, i am not jackie. i miss jackie and i mourn for you, but our country is in a crisis. we are in the height of the cold

war. we have just come down from the cuban missile crisis. we have barely recuperated from the bay of pigs and now we have birmingham. how are we going to deal with this? she was able to be political and to do policy behind-the-scenes in a way that was nonconfrontational, that could help soothe the political feathers that her husband had not just ruffled, but plucked. i think there are times when it is just a fluke. we get lucky. she knocked it out of the ballpark. >> let's talk about the politics a little bit. we talk about dolly madison bringing people together, but she was also campaigning for her

husband. clear that he should be the next person elected. theerine adams was complicated person. died, sheail adams would write letters to john adams, gossipy letters about what was going on in washington. she wrote one letter saying, it is my vocation to get john quincy adams elected. give a sense how even at the beginning, the politics was very much part of what the women were supposed to be doing. >> i have to plug the bug that is not mine -- lug a book that

is not mine. that is notk mine. it is interesting what the women were doing. we understand this idea of process. with catherine adams, it becomes clear that john quincy adams begins running for president as early as 1818. is bad,u think this one 1818, james monroe was still there. the corrupt bargain, which will be on the test after this. it is this moment of right before the election of 1824 when apparently the upright john quincy adams makes a deal with henry clay. a majority in the

electoral college and it goes to the house of representatives. jackson had want the majority of the popular vote. the assumption was that jackson .ould win it became jackson, adams, clay. the fourth, jackson, adams, crawford, clay. clay is out of the running. he is a very powerful member of congress. >> who is going to get his vote? stories are very puzzled. somehow john quincy adams promised henry clay secretary of state for his vote. how could this john quincy adams, who spends all of his life disavowing any ambition about politics, how could he stooped to this kind of

politicking? we do not know the answer to that until we look at what catherine adams is doing. from 1818, she instituted the social program every tuesday night, bringing people and to washington. -- into washington. adams, a great line, mr. john quincy adams goes over my calling cards every day as if they were a battle plan. when you look at what she is doing, this historic mystery assault. -- mystery is solved. wives who acted as campaign managers. >> we get to the house of wins.sentatives, adams all of those men had been entertained by adams. one of them went back to his

boarding house where he promised where he would not vote for adams on the first ballot. they will not let him sit down to dinner, because they are very mature -- [laughter] wife, them writes to his everyone says his wife made him do it. >> she instituted something -- .his is a town where allegiance she would hold these parties ever tuesday night, but you would be invited for the season. you did not have to go overnight, but you better not show up anywhere else at anybody's party. she acted almost as a whip. >> she had a big boss.

>> i want to get to you in a minute. roosevelt did not want to go to the convention. to be drafted and named by acclamation. this was breaking the president. is they areens pretty confident that fdr is theg to be drafted for unprecedented third term. if i can say this on c-span, when all hell breaks loose. that is when the coalition unravels. team are frantically calling the president. the president says, if i cannot have wallets, i will not run. he has already -- she is sitting

there at a card table writing out what he is going to say. , and sheed eleanor flies to the convention. with no prepared speech, no speechwriter, no nothing, walks into the convention and is absolutely pandemonium. it makes today's conventions look like everybody is falling asleep on cough syrup. >> they are. [laughter] they are not choreographed for tv, there are no huge aisles. it is such pandemonium that the people with her want to pull her back off the podium. no, in the shortest

speech in the history of either the democratic or republican convention, says this is no ordinary time. that really columns the convention down and it is out of respect -- columns the respect - - calms the convention down. i am watching the clock. in 1928, when al smith, the governor of new york, is the first catholic to seek the nomination. would come toes fdr and leaned on him heavily to run for governor, which he is not expecting to do for another couple of years. remember that the nation still very much notice that this man

has battled polio and he cannot stand unassisted. he has these 10 pounds of steel on his leg. ,hat eleanor roosevelt did remember i was never political before lucy. help workor did was with the women of new york state to build a grassroots campaign which totally restructures the politics of new york. if i knock on your door and you say, i have questions about farm parity. i will write down on my car if i cannot answer it. if you give me another question i cannot answer, i will write it down on the card.

i am not talking about robo calls, i am talking about respectful one-on-one, what do you care about? smith -- al alice smith, we must have fdr on the ballot because his wife is more well known among the party faithful and upstate voters than anybody in the history of the state. so they understand what they have to do, but they understand why they want to do it and they understand why it is important in the way that advances their husbands careers. thehis sense of being in public, the public person. i was struck that will rogers -- lovede, which

her. alwaysys about helping about putting herself second at great cost. politics.ing about mrs. adams, mrs. roosevelt signing the next campaign. she wanted to make it clear she did not know what he was planning ahead for running for that extra term in 1928. calvin coolidge was enormously popular. he could have run for another term in 28. she made a blanket in the white house that has a square for each month left.

when the president said, i do a sensor was run, over for lunch and she said the equivalent -- a senator was over for lunch and she said the equivalent of knock me over with a feather. if you look at her writings, there was another mother she was thinking of and that mother was the mother of charles lindbergh. he was doing something truly dangerous. -- it is nothat modern style or what we would do, but she did it well. for that, we admire her.

maybe it was helpful for the country to have a change in leadership after our time, this idea of going back because we are an important leader, coolidge did not like that. let the country do without one. a first lady last supported another style of presidency. she has felt this sense of tremendous duty. this was the wife of the president of the united states. >> in that way, she was similar to eleanor. you are playing a role and it is but it is of value to the people.

when they were out of the white house, she wrote poetry about her son. she wrote a book. they were happier that they were out of the prison. -- i amhe period playing a role and it is incredible work. washington, even after george is out of the presidency and even after he died, everybody still keeps coming to mount vernon, right? when one of the emissaries from we want to bury george washington at the capital . i do not want to do that, but i am so accustomed of putting my duty in front of my desires.

does that go with the territory? >> yes, i do. lets wondering if you would me say something about why we studied first ladies. >> can i just say one thing? [laughter] eleanor carried a prayer in her wallet that i think really encapsulates. dear lord, lest i continue my complacent ways, help me to remember that somewhere someone died for me today. if there be war, help me be verbal -- remember to asked and to answer, and am i worth dying for? >> goosebumps. >> 40 seconds. have our first ladies given us? from martha washington to laura bush, they have given us an alternative model for politics.

one that centers on civility. we can draw on that modern of politics. model and beo this assured. >> and love our country enough to do it. >> do you want to say a final word? >> thank you so very much. [applause] >> you can watch all of first ladies season one at www.c- span.org. send us your questions about the first ladies on facebook. next monday at 9:00, here on c- span.

>> there are 1400 monuments and markers on this battlefield. as the man who fought in this battle getting older, they want to make sure what they did here is remembered and they will do that by building monuments. in modern times, we have other ways of commemorating things like that, but in those days, that is how they commemorated the surface here. monuments help us interpret the story, they are placed in the ground. most of the monuments are union monuments. the war is going to be a union victory. by the time the war ends, there is not a lot of money in the south to build monuments. theive all day coverage of

150th anniversary of the battle sundayysburg, starting at 9:30. followed at 5:30 with your calls and tweets. penn state university professor carol reardon. at 8:00, the commemorative ceremony. dramatic readings from eyewitness accounts of the battle. 9:15, more calls and tweets. all day, sunday, on american history tv on c-span3. quick supreme court arguments in a case regarding affirmative

action policies in higher education -- >> supreme court arguments in a case regarding affirmative action policies on higher education. a discussion of cooperation between the u.s. and mexico. the supreme court decided monday to send the case on affirmative action policies in higher education. gensler --h bader ruth bader ginsburg was the only dissenting vote. this is a little bit less than 90 minutes. >> i get to say this is case number. the general trained me too well. mr. chief justice and members of the court, and may please the

court, the central issue here here is whether the university of texas at austin can carry its proving that admissions race is a plus one factor. fisher -- , thefore we get to that .uestion of standing if the injury is rejection by the university of texas and the answer is no matter what, this person would not have been accepted, how is the injury caused by the affirmative-action program? was the use injury

of a system which denied equal treatment. damage was premised on the constitutional issue. >> the stage was litigated on its merit. the question was whether the face could carry his case, while on summary judgment, h was denied access to the graduate program. but that was not sustainable. constitutional injury. a concept in a footnote -- it comes up in a footnote.

>> she has graduated. she was permitted to apply in the summer program and get it automatically, and she did not. >> that is not correct. she was considered for the summer program and rejected. have attended a different university in the texas system and had she been able -- >> she has graduated. what measure of damages will she be entitled to >> that issue was bifurcated and we have reserved the ability -- >> what is the injury you are claiming? >> the denial of her right to equal treatment. we started the case before it was clear, whether she would or were not be admitted.

>> you still have not answered. if we were to assert damages contingent upon the fact that she should have been admitted to him about was not admitted we would have to prove that but for the use of race, she would be admitted. whether we can prove it or cannot prove it is something you can not tell on this record. there wasint out that no way to determine that issue. >> we have had cases involving alleged discrimination in state contracting. the person required who was discriminated against the cousin of race to prove that he would've gotten -- against because of race. raised.ame issue was

the convention was he could not have gone into the medical school. a matter of merit, it is not a matter of standing. the same type of contention was , and the court said damages are enough. a lot of damages to explain. >> and who claims not was denied, but she a fair chance in the omission lottery? just as when a person is denied participation in the contracting >> 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 got 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. >> 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 applicants 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 box. >> 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? 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 a 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 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. >> all that is likely to included in the 10% will. incidently, when was the blood that? >> 1998, your honor -- when was the rule adopted it? >> 1998, your honor. if you look at the break down, i do not think it is disputed in this case to this point that although the percentage plan helps with minority admissions,

by and large the minorities that are in the did tend to come from segregated, racially identified schools. >> i thought the purpose of affirmative action was to help students from underprivileged backgrounds, and you make a different argument that i do not think i ever seen before. the top 10% plan applies to hispanics, and african- americans, but you say it is faulty because it does not admit enough hispanics and african- americans that come from privileged backgrounds, and you have the example of the child that is the successful -- of successful parent in dallas. let's say the parents have an income that puts them in the top 1% of earners in the country, and they both have graduate degrees, they deserve a leg up

against an asian or white applicant whose parents are absolutely average in terms of education and income? >> no, your honor. the example comes almost word- for-word from the harvard plan that this court approved in grutter. >> how does that question's answered the bell? >> our point is that we want minorities from different backgrounds. we go out of our way to recruit from disadvantaged backgrounds. >> you are saying is what counts is race above all? that is a necessary response to justice alito's question. >> what we want is different experiences. >> underprivileged of a certain race, and privilege of a certain race. that is race. >> no, your honor, that is not race. it is just the opposite. in the grutter decision --

>> the reason you are reaching for the privilege is that so members of the race who are privileged can be represented. >> it is members of the same racial group bringing different experiences. if you took any racial group and an an admission group -- had an in mission group the only admitted people from a particular -- admission group that only admitted people from it particular background, you would want people from a different perspective. >> i understand my jab under our precedents to determine whether your -- job under our precedents is to determine whether your use of race is narrowed to a critical mass, but you not tell me what the critical mass is.

>> what the president says is a critical mass is an environment in which -- >> when will we know they do have reached a critical best bet critical mass? what is the end point? >> this question implicates grutter itself, and i understood not challenging that diversity. what we looked into is feedback directly from students racial isolation they experience. >> you conduct a survey and asked students if they feel racially isolated and that is the basis? >> no no, that is one of the things we love that. >> what are the others? >> we look of the enrollment data that showed african- american the moment at the university of the texas-based

23% in 2002. >> -- at the university of texas dropped to 3% in 2002. >> at what level with satisfy critical mass? how am i my supposed to decide whether you have an environment where particular minorities do not feel isolated? >> part of this is a judgment that educators are going to make. >> when you tell me, that is good enough. >> not at all, your honor. the enrollment data, the feedback from the students, taking -- enrollment data, the feedback from students -- >> would 3% be enough in new mexico where the african- american population is around 2%? >> i do not think it would. it is not tied to demographics. it is understood that we are not pursuing demographics.

key facts have been undisputed. >> mr. garre, i think the issue my colleagues are asking is at what point and when do we stop deferring to the university's judgment that race is still necessary. that is the bottom line of this case. you are saying, and i think rightly, that you can not set a quota, because that is what our cases said you could not do. if we are not going to set a quota, what do you think is the standard that we applied to make the judgment? >> the standard you would apply is the one set for begin grutter, -- said forward in grutter, looking to if there was an environment where they do not

feel like spokespersons for their race, cross-understanding is promoted, and the benefits of diversity are realized the reason the university of texas realized. the reason the university texas came to that not been not -- >> that holds for another 16 years? >> we do not read grutter as establishing that time clock. >> you are appealing to grutter, and that is what it said. >> we are guided buy it here, at least the advocates are, and we are looking at this every year, and once we reach that point, of course we will stop. >> some of the stuff that grutter says you agree with, and saw the stuff you do not agree with. >> before your time runs out,

the other point that i would like you to answer is the argument based on parents involved, that the game is just too small to warrant using racial criteria. you have the 10%. you do not need more. how do you answer the argument that the game is too small? >> i say the consideration of race has increased risk of diversity -- rage -- increased racial diversity. african-american enrollment doubled been to thousand two through 2004, so this has had an impact. >> in terms of diversity, how'd you justified lumping together all asian americans? the have a critical mass of filipino-americans, the cambodian-americans?

>> it can be spelled out. >> do you have a critical mass? >> we look at whether we have a critical mass of underrepresented minorities, precisely what the grutter asks us to do. that could make it quick point and jurisdiction -- >> before you get to that, suppose you identified a numerical category, designation for critical mass, during the course of the admissions process, can the admissions officers check to see how close their coming to this? >> no, your honor, and we do the do not. >> you can not? >> we would not been monitoring the class. >> that happened in grutter. are you saying it is not correct?

>> no, your honor. what i am saying is we do not have that problem. >> i am asking whether or not you could do that. >> i do not think so, because it was understood to be for the purposes of reaching a demographic. >> they do not monitor, but raises the only holistic factor that appears on the cover of every application, right? >> all of the factors are taken into account. >> i am started the question is whether race is the only one of the holistic that it? can i make one point on jurisdiction? >> we will give you a little more time since we will give your friend more time. >> it makes clear that ms. fisher was not admitted no matter what her race.

>> are you arguing she does not >> you address that in one footnote. you said it is hard to see how she could establish. >> there's another part that comes from the brief was ghost believes release she has requested. the release said it began with battles was pulling out. that is undisputed. with allies in this case is is request for monetary damages. this request is on page 79. it focuses specifically on the request for the return of admission fees. the reason why it is not enough is that she would have paid the admissions be no matter what policy of the university had. >> what about our jacksonville case?

>> that injury is not sufficient in a backward looking case where you only have monetary damages. they involved four were looking cases are people -- forward looking cases. >> your friend told us these remedial damages had been segregated out of the process and are still available. >> that is not an answer for jurisdiction. it is true that we go improve damages. the complete makes no doubt that the only request is a request for a mission fees. it says that explicitly. it relieved that does not remedy the injury suffered cannot draft a plaintiff into federal court. >> part of the injury she suffered is that the only

injury. she had to pay a fee for an application process which was not treated fairly. >> the payment of application does not remedy the injury that she is complaining about. >> if this is easy, do it. if not, don't. i want to use accurate numbers. i want to find out how many universities actually use a grutter type process. one of your admissions officers is the only place that has the information. i didn't want them to do it. you are both here. if you can agree on roughly what the number is i would like to

know it. otherwise i can use re-grutter numbers. >> i do not have specific numbers. this recognizes that the best universities in america have been using this for 30 years or more. >> since we're asking questions, this is a very ambitious racial program here at the university of texas. how many people are there in the affirmative action department of the university of texas? do you have any idea? it would be a lot to people to monitor all of these classes and do all these assessments of race. it probably a large number of people would be out of a job if we suddenly went to 10%.

>> will monitor the racial climate on campus. >> i do not have the specific number. it is an important part of improving the educational experience for all students in a matter what their race. >> thank you. >> it is important to focus on what is it not at issue. a petitioner is not challenging grutter's reaffirmation that student body diversity is a compelling interest that can justify the consideration of race in university admissions. colleges and universities have relied on that principle. it is a vital interest to the

united states said they continue to be able to do so. they are insuring that the nation's universities produce graduates were going to be effective citizens and effective leaders in an increasingly averse society in global markets. >> does the united states agree that african american and hispanics from affluent backgrounds deserve a chance? >> here is what is going on with respect to the admissions process. i think this is a bit of context. the top 10% plan produces some diversity. the university cannot control that diversity in the same way it can with respect to the 25% for the holistic process. my understanding that the universities are looking to do

is not to grant a preference for privilege but to make individualized decisions about applicants to look directly for the educational mission. they will look for individuals who will play against racial stereotypes just buy what they bring. the african-american fencer. hispanic students as master classical greek. but also look for those with a demonstrated track record. >> you have two applicants that are the same in every respect, they come from affluent backgrounds come up educated parents, one falls into the group with a preference in the other does not. the last position available under the texas plant, one gets in and one does not. do you agree with that? >> i think there is a automatic

preference in taxes. this is right on page 398a of the appendix. they describe an applicant's race only considered that the student will contrary to the broader diversity. >> the two applicants are entirely the same in all other respects. if the ability to get a racial preference means anything, it certainly has to mean that in the hypothetical given by justice alito, the minority student gets in and the other does not. this is common. >> it is a matter of two equal and all other respects.

what is the racial preference mean if it does not mean the minority applicant winds and the other one loses? >> there may not be a racial preference. >> i do not understand this argument. i thought the whole point is that sometimes race has to be a tiebreaker. >> i think it functions more subtlety. >> it does not in every case. findings from both courts say the district court found that race is indisputably a meaningful factor that can make a difference. if it does not make a difference then we have a clear case they're using race in a way that does not make a difference. it has to be the race is a determining factor.

unless it is a determining factor in some cases, it they are using race when it does not serve a purpose at all. >> it does not make a respect to every minority applicants. >> and it is different in some cases. >> it does. >> this is exactly right. it is not a mechanical factor. with respect to the implementation of this compelling interest, it is clear in he is challenging this. this meets every requirement and addresses this.

there is no quota. everyone compete against everyone else. it is individualized consideration. they do not monitor the racial composition. >> the supposition is surely a possible -- impossible under this. there are not identical mechanical factors that except the 10% plan. the factors are so varied intentionally set that no to applicants ever could be identical in the sense they hypothesized. >> the specific individualized judgments.

>> as i understand it, braced by itself is taken into account. they take race into account. the district court found that race makes a difference. >> and makes a difference by casting the accomplishments of the individual applicant in a potential flight. what the universities are looking for with respect to this consideration is what is this individual going to contribute to our campus? race can have a bearing on that. this is what they can bring to the student governments or to the campus. >> if there are ever to applicants with the gpa, the

grades, leadership, activities, awards, community service, economic status, family responsibility, single-parent home, s.a.t. score, if he had a situation where those things work absolutely identical then the person would be admitted on the grounds of race. >> not necessarily. >> let me ask you another question. can you explain your rotc argument for me? >> our military effectiveness depends on a pipeline of well

qualified and well-prepared candidates from diverse backgrounds who are comfortable exercising leadership in a diverse set in. >> you have a marginal candidates who wants to go to the university of texas and is interested in rotc. how does this impact the military? >> the point of educational diversity is to create an environment in which everyone

develops appropriate sense of citizenship and the capacity to lead in a racially diverse society. it will benefit every rotc apple can. 43% of the court comes from the rotc. it is a significant part. attained critical mass? >> i agree that critical mass is not a number. it would be ill advised -- >> i am hearing a lot of what it our responsibility is to determine where the use of races narrowly tailored to achieving the universities critical mass. think this is a situation where the court simply affords complete deference to the universities judgment that

hasn't yet achieved the level of diversity that needs to accomplish its educational mission. court has to make its own independent judgment. i think the way to go about making that independent judgment is to look at the kind of information that the university considered that could be information about the confirmation of the class. aboutld be information classroom diversity, about retention and graduation rates. it can be information about what is specific to the universities context in history. then what the court has to do is satisfy itself that the university has instantiated its conclusion based on that -- based on the information considered -- that it needs to consider race to further advance the educational goals.

thell say that i think that burden on the university will get harder to meet. don't think there is a number and i don't think that it would be prudent for this court to suggest that there is a number because it would raise the kind of problem that i think justice kennedy identified in creating hydraulic pressure. >> we should probably stop calling it critical mass. it assumes numbers are a certain size or a certain weight. should be a cloud or something like that. >> i agree that it has taken a life of its own in a way that is not helpful. it's not just important to the government, but to the universitiesour

have the flexibility to shape their environments and their educational experience that justice kennedy identified with parents involved, that our strength comes from people of different races different to form and uniting more perfect union. that is what the university of texas is trying to do and it should be upheld.

>> thank you. that is more than i expected. we are seeking a level playing field. there are three things i want to touch on. there has been a lot of back and forth on standing. that really relates to marriage. we do not accept the premise of the footnote that she would not have entered under any circumstance. she was considered for the summer program. >> incentive relief and the return of the money. is that what is limited to? >> no. the point when we were writing it -- >> we said any and other damages is too speculative. is what you actually see injunctive relief and the return of the $100? >> we never had the opportunity. did you ask only for injunctive relief and the $100 specifically? >> the only specific number was the application fee.

>> you would have paid that no matter what? >> you would have returned it for a free assessing of the application. because of the way it was bifurcated, we did not develop the additional damages. what you he pointed out is there other kinds of financial entries that were not ascertainable at the time it was filed. >> she is going to get a better job because she went to a different university? >> that is one thing suggested. the court made this clear.

let me go to another issue that i think i never concluded my answer. we recognize that there is an interest. it could be recognized it at all that what we are concerned about is universities like you'd see and others have used it as a green light to use race, no end point, no critical mass to something that can be reviewed. as long as you do not cross determinative points and fixed quotas, you are ok.

we do not think that is the way grutter was intended. it raises all kinds of red flags. make a determination whether your interesting critical mass in dialogue, the educational interest -- you no >> you're not suggesting that of every minority student that bought into a university -- got into a university only got into a physical education program that the program includes all the star athletes. every star athlete in the school happens to be black or hispanic or asian or something else. they have now reached critical mass of 20% that the university in the situation cannot use race in the holistic way that grutter >> if you are saying

this in a director and she did part of the -- >> everyone of their students who happens to be minority will end up in the program. do you not think the university should consider it needs a different diversity? >> the factor is a choice. you have a critical mass of students. they choose to major in different things. that is the problem of classroom diversity. what are they not in the small classrooms?they never asked the question. why does that happen? you would say that is an aberration. what is causing it? >> are facing the same thing-- aren't they saying the same thing when we are looking at the holistic measure we are looking for the student who is a nuclear scientist? >> no.

they do not take into account the interests. they are not going to use you in major physics. they do it in a way that is premised on academic indexes. the have a two-tiered emission their preference goes to admission as such, not as asserting a by majors. what we see is that grutter has been perceived as a green light. go ahead and use race. that unchecked use of race which we think has been spawned by misreading of grutter needs to be stopped.

>> is any different from how race is used in our military academies? >> those are two different questions. the harvard plan is a very different world. it is a plan about individual missions to establish the thisonic ideal of a class. is not what is going on at u t. i will score you individually. i am admitting categories.i am not i admitting people. in the way they do their system, you can figure out that two people would have had the same pai score. it allows them to boost be pai .core.it is not infrequent

there are many candidates who'll score the same pai and a new boost some of them. ut says we do not boost all the minorities but we want to boost we want thoseike. affluent minorities who we think will improve, in our view, dialogue during that is can't -- dialogue. the belieftrary to do believ that they give points in the same system for socio-economic disadvantages. they cannot even say at the beginning we do not have critical mass, we do not know what it is, there is no judicial supervision. there's no in point to what they are doing. what we have said goes back to how much you write it. you can clarify it. you can say it grutter requires you to do this. we said it would be

satisfactory. to the extent you have the surviving side by side, there could be enormous confusion. >> you want me to look at the critical mass, look at exactly how it is being done in taxes-- in texas which has charts. i will then find enough of a difference and i can write some words that can be administered by two or 3000 federal justices as they try to do with programs. >> if you then look at some of the other deficiencies and clarify the consideration of reasonably available alternatives a necessity, even -- if you then attribute

the weakness of the program to the absence of those factors. you may not have to overrule gruver. .ou can restate this is a narrow window. >> once you reach a certain number then you cannot use race anymore.you want to tell universities, when she reach a certain number, then you can't use race anymore. >> i do not want to gut it. this is unacceptable. this is her right.

>> i'm confident there are a number of people, republicans and democrats, who do believe the time is now to get this done. we will work together in a diligent way over the next few months to craft a solution in the house that will likely go to conference between the house and so -- and senate. it is a heavy lift, particularly in the house. i'm optimistic that the president will sign into law comprehensive immigration reform that will do with these issues make sure we can win the global battle for talent. >> how was the president's tone? >> i will not turn dries his characterize his tone. he has been appreciative of people coming together in a good-faith way. he is optimistic that what will happen this week in the senate -- he recognizes the house is more complicated.

there is a lot of work to be done. he would urge everybody to make sure that your voices are heard. people realize this is a broad coalition, not just entrepreneurs, not just the tech immunity, but a broader coalition. people in the hospitality industry, agriculture, just as much as the technology or entrepreneurship industry. you see a broader coalition of people coming together. bibles, badges, and business -- that is the breadth of the coalition that has been built to get this done. everybody is cautiously optimistic about the progress could the progress has been quite strong. there is a lot of work to be done over the next month or two. it is not the time to get complacent. >> how do you hope to get the house to vote for immigration reform and they did not pass the farm bill? is extremely

important from the perspective of the fresh fruit and vegetable industry to have a comprehensive bill passed. the ad jobs portion of the program is extremely important for us to have adequate labor force available. the new deal with perishable commodities, it needs to be picked when it is ready. the house understands how critical this is for us. >> thank you. i hope that everyone understands how imperative this is. it's got wide reaching economic implications for all sorts of businesses. it is ag immunity, extremely important to have a reliable workforce. the current situation we are left with is not adequate. >> before we quit, one story.

he is a new father. he cares enough about immigration to come to washington. i would leaveason the baby at home is because the president calls and im a colombian could i came to the u.s. when i was 18. back in 1998. i met a lot of entrepreneurs but i came -- i became obsessed with the idea of becoming an entrepreneur myself but there were no visas for people who wanted to start companies in the u.s. my solution was to enroll as a student. i worked at mcdonald's overnight to pay for that. , i cofoundedvely my business with the cuban- american. we had six people -- 60 people in the company, americans. that was not good enough for me to get a visa. i was a successful entrepreneur to some extent. i was being told that i had to go back to columbia.

not good. i was lucky, and i ended up meeting with my current wife, the mother of my daughter, and somehow i convinced her to marry me. i was able to stay here. i do know -- i do not know what she saw in the, maybe some potential. an immigrant herself, also colombian could i ended up meeting her in the u.s. we created a company called voicebunny. ofare the largest database voice actors in the planet print we have thousands of voice actors working from home. there are thousands of companies using our platform enables -- in order to be able to hire voice actors. we have been quite successful by doing something -- we have thousands of clients all over the planet come in china, india, latin america, hiring american voice actors working from their home studios in order to create the voice for the items or

applications for video games or movies they are creating. we are waiting for that. hopefully this immigration reform is going to help entrepreneurs like me do this kind of innovation to keep the u.s. on the leading edge of tech innovation good for me as an entrepreneur, the u.s. has always been attractive. it is easy to start a company. it is easy to find clients. it is easy to find capital. the only area where the u.s. is lagging behind is the immigration policy. i know many entrepreneurs all over the planet that consider that the only reason why they do not decide to come to the u.s. and start a business. >> thank you. we thank you for your interest. >> a couple of live events this morning. a senate homeland security

subcommittee looking at emergency preparedness since 9/11 brings officials from the homeland security department, the gao, and fema. that is at 10:00 a.m. eastern. the at 10:00 on c-span 3, senate banking committee is holding a hearing on private student loans good witnesses representatives of the consumer financial protection bureau, the federal reserve, and the fdic. now a hearing on medicare prescription drug abuse. witnesses before the homeland include committee officials from the drug enforcement administration and the medicare and medicaid services. this is a little less than two hours. thank you forng.

being here. for your preparation and attendance today. in colleagues are coming from across the country this afternoon. we will be joined by a number of them as this hearing proceeds. today we will hear from several witnesses about the medicare prescription drug program and its vulnerability to waste, fraud, and to abuse. medicare is a critical inponent of our healthcare our nation. prescription drug programs, which we know as part d, was past seven years ago in 2006 bid we are now in its seventh year. the overall views of the program has been generally positive. more than 31 million citizens participate. the congress must ensure that $60 billion a year works and

efficiently. unfortunately, medicare including part d is not as effective or efficient as it could or should be when it comes to preventing waste and fraud. each or the federal government raises the estimates of overpayments, underpayments, undocumented expenditures, and other mistakes. the total for fiscal year 2012 was more than $100 billion. medicare has the largest reported share of that total at $44.3 billion. the amount wasted in medicare's prescription drug program alone is approaching $2 billion. healthcare is too often the focus of criminals who wish to take it vantage of the system. whether the care is provided through government programs or the private sector, attempts to defraud the health care system are on the rise. the estimates for medicare fraud are in the tens of billions of dollars.

we cannot afford to tolerate these levels of waste and fraud in our healthcare programs. as everyone knows, we faced record budget deficits in recent years, and while they are coming down, they are way too large. even the debt and deficit problems that we face, and the tough work ahead of us as we attempt to address those challenges, we need to focus like a laser on the avoidable extensive, and unacceptable issues we will be discussing today. during a hearing that i chaired in the fall of 2011, i think dr. heurn was there as well -- has great interest and this -- the government accountability office testified that they identified about 170,000 beneficiaries who require the same class of frequently used drugs, primarily hydrocodone and oxycodone, from five or more

medical practitioners at a taxpayer cost of almost $150 million. into egregious examples, individuals receive prescriptions from 87 and 58 different medical practitioners. this followed a similar study in 2009 showing the same problem and medicaid. this fraud technique called dr. shopping involves recipients going to multiple doctors for the same type of drug. aree cases, beneficiaries almost always feeding an addiction or selling drugs they do not use on the street. drug dealers make the profits while the federal government foots the bill. problem of prescription drug fraud is about more than just the loss to taxpayer dollars. it is also about the toll that drug abuse takes on people. it is a grave concern that one out of seven high school seniors in america has abused or is abusing prescription drugs. more americans abuse prescription drugs than the

number who abuse cocaine, heroin, hallucinogens, ecstasy combined. the department -- do we have a ofrt -- the department health and human services specifically the center for medicare and medicaid services has established a set of oversight procedures to protect the medicare prescription drug program. this is a team effort. it involves medicare officials, law enforcement at the federal, state, and local levels, the medicare prescription drug plans, pharmacies and doctors, and beneficiaries themselves. unfortunately based on today's testimony by the health and human services office of inspector general, there is still a lot more work to do. on thursday of last week, inspector general released a report detailing over 700 general care practitioners who had questioned -- questionable

prescription patterns. while prescription drugs with a high abuse attention constitute on average only 2% of general practitioners prescriptions, it constituted 78% for one general practitioner identified in the report. this physician prescribed a years supply of three painkillers, such as morphine and codeine, for just one of medicare in the fishery -- beneficiary. today we will learn about an even more clear failure of oversight. the inspector general is reporting that medicare is paying for prescription drugs prescribed not by physicians or others authorized, but by people with no authority to prescribe at all. -- 400,0004000 prescriptions totaling some 31 $.5 million were prescribed by

individuals who appeared to be massage therapists, interpreters, using therapists, or contractors who perform healthcare related home repairs. you can see the list to my left. , the 29,000ing prescriptions were for controlled substances. including drugs with a high potential for abuse, such as oxycodone. one contractor alone wrote 79 prescriptions for commonly abused and killers. -- painkillers. these numbers show clear indications of fraud and abuse. i understand you need -- the unique challenges coming along with running a program like medicare. however, we have to do a better job in overseeing the medicare prescription drug program. i will continue to work with dr. coburn, our colleagues, and the administration to ensure that programs across the federal government are improving, monitoring results, and finding ways to do more with less in

almost everything we do. a key part of these efforts will involve program managers sharpening their pencils. in conjunction with our private sector partners, for venting expensive and harmful waste and fraud -- preventing expensive and harmful waste and fraud. we must make sure our healthcare programs help those who need medications rather than feed drug addictions or profiteering. by working together, we can take another important step in earning their trust once again. with that, let me turn to our ranking member, dr. coburn, for any comments you might like to make. >> thank you, senator. welcome to each of you. is prettyport revealing. i've been sitting here, thinking about what we will do next year on the basis of the recommendations not being followed in the ig report,

because that seems to be the case with cms. my question is, not is it happening, it is, what is wrong with the recommendations that the ig is making in this? it fits with common sense. if we come back one year from now, chairman carper, and this that has not been done, and a contractor is not either fired or made to do what they are supposed to do, what we ought to do is see about cleaning house at cms. in ais another layer continuing saga of not applying common sense and recommendations to fix problems. i look forward to hearing the testimony. the problem is real. it is not a problem of waste of dollars. it is wasted lives. medicare is allowing that through cms. the fact that people have identification and medicare -- in medicare, and we have a

contractor not catching the fraud, not prosecuting the are wastingys we that contract money based on what we have seen in the ig report versus what the contractor has done. my hope is we are not back here in new york, and we can say, way to go, cms. ,ou have put it into action and we will not see this happening again. >> a new member, the first hearing he has joined us. he comes from the state of new jersey. we are honored to have you join us in the u.s. senate. we are delighted that you have ended up on our committee. normally the chair and ranking member give an opening statement, but since this is a -- if youy for you would like to make a brief statement, please go ahead. we are happy to have you on our team. >> thank you for that warm

welcome. i would just say that we took a lot of steps in new jersey because we recognize how catastrophic the prescription drug issue is. the chairman talked about the fact that we think about drugse and cocaine as that kill people could we realize now that prescription drug abuse is killing more people than those drugs are. that we live in a state tells us that these drugs are state -- are safe, they are only saved if they are used as we are told they're supposed to be used. i look forward to this conversation, continuing conversation is important to the safety that -- to everybody that lives here. >> again, a warm welcome. our first witness is a witness whose name that has probably been frequently butchered. i will try not to do it today. ?s it ron is easy >> that is perfect.

the drug enforcement deputy assistant administrator of the office of divergent control of the drug diversion control at the drug enforcement ministration. he oversees major diversion investigations in drafting and promulgating regulations and working with the pharmaceutical industry, international governments, state governments, and with other agencies. he holds a jd from the detroit college of law at michigan state industry -- university. we are delighted to see you today. jonathan, nice to see you. acting principal deputy administrator and director of the center for medicare at the center for medicare and medicaid services. he is responsible for overseeing regulations in payment of

medicare providers and plans. including private plans that participate in medicare prescription drug programs. during the development of the medicare prescription drug benefit, he was an advisor to senate finance committee working on prescription drugs and other medicare policies. a medicare program analyst at the office of management and budget. he has testified before this committee before. we welcome your testimony today. i need to introduce to oig witnesses together. i believe you are going to be splitting your testimony time. one is gary cantrell. nice to see you. stuart wright, we welcome both of you. they are from the health and human services office of inspector general. mr. cantrell serves as a deputy inspector general for investigations. he has served in various

leadership positions within the office of investigations where he advanced the office's use of data analysis in health care fraud detection screen he has degrees in computer information sciences from the university of maryland. mr. wright joined the office of inspector general in 1987. he has held a variety of positions including chief of medicare and medicaid branch and director of the program evaluation division, a graduate of the university of rochester, a ba in economics and a masters in public policy. and you for joining us today. -- thank you for joining us today. ,lana lavelle from wellpoint director of the in dash special invest -- special investigations for a large healthcare company. she joined wellpoint in 2000 -- 2004. after 24 months of service with

the fbi -- just kidding -- 25 years of service with the fbi including service fighting health care fraud and bioterrorism. she also serves as the chair of the national heritage -- health care antifraud association which brings together the private and public sectors. she is eminently well-qualified to testify. we are grateful to you for being here today. others of ourd, panel will join us throughout the afternoon. by 5:30 we will be done good i will ask you to take about five minutes to summarize your testimony. >> good afternoon, on behalf of

the men and women of the drug enforcement administration, thank you for the opportunity to discuss the epidemic of pharmaceutical abuse. the abuse of prescription drugs continues to plague the nation crossing all age, gender, and socioeconomic boundaries. studies showed substantially high levels in the abuse of these drugs and the adverse consequences. according to the most recent 2011, therealth in were approximately 6.1 million people over the age of 12 who used prescription type psychotherapeutic drugs for nonmedical reasons during the past month to devastating effects. it can be demonstrated by a report released in 2013 by the drug appeased warning network it revealed a 103% increase in er visits from 2004-2011 attributed to narcotic pain were little -- narcotic pain relievers.

as substances are increasingly abused, the number of deaths has correspondingly increased. the center for disease control revealed 38,000 people died from a drug overdose in the united states in 2010. nearly 60% of the drug overdose deaths involve pharmaceuticals. -- analgesics, hydrocodone, methadone, those were involved in about three of every four pharmaceutical overdose deaths. box he couldn't and hydrocodone are the top two divergent drugs. it is a problem that cannot be addressed through law enforcement. multidisciplinary -- multidisciplinary address -- a multidisciplinary approach will address this threat. education, prescription monitoring, disposal, and enforcement to comprehensively

address the epidemic. we play an important role in education, disposal, and enforcement. the host numerous education programs. in 2011, we began a program to educate professionals on the front line of diversion. these pharmacy diversion awareness conferences have been held in nine states thus far. providing continued education to nearly 4000 techs. we finished the conference last week training almost 400 corporate representatives. we also continue to present at state and local community meetings and law enforcement programs in the country. the accumulation of unwanted and unused prescription drugs and household medicine cabinets provides easy access for abuse, accidental ingestion, and illegal distribution. this easy access has undoubtedly contributed to the

increase in the abuse. dea has responded by coordinating national takeback events with other law enforcement partners. this has0 -- 2010, resulted in about 2.8 million pounds in unwanted restriction drugs. eea is finalizing regulations which authorizes additional ways for americans to dispose of their unwanted and expired controlled substance medications in a secure and responsible manner. the diversion of controlled substances occurs at all levels of the supply chain. continue to identify targets and investigate violators who caused millions of dosages to be diverted. noncompliance has allowed dangerous pharmaceuticals to pour into the illicit market posing an imminent danger to public health and safety. pharmaceutical diversion and be -- when the dea system breaks down, massive

diversion occurs, as seen on domestic internet distributional schemes. rigorously pursues criminal and civil actions against registrants who fail to comply. on june 11, 2013, walgreens corporation, the nation's largest rug store chain, agreed to pay the largest civil fine in dea history, $80 million, resulting administrative regarding the jupiter florida distribution center and six retail pharmacies in florida. these are only the latest in a series of enforcement and regulatory operations focused on all levels of the registrar population within the delivery situation. of the chain, from many factoring, wholesalers, retailers, pharmacies, practitioners are being closely

scrutinized to ensure compliance. controlled substance pharmaceuticals that are illegally obtained through health care fraud or abuse of the medicaid program is yet another method of diversion that ultimately weakens the .ntegrity of the system while these violations generally occur outside of our jurisdiction, there are occasions that while investigation of violations, dea agents and investigators uncover violations involving health care fraud. this information is shared with investigators from the department of health and human services, the fbi, and other state and local enforcement regulatory bodies with relevant federal and state authorities. the importance of these cooperative and information sharing relationships are reflected in the fact that the hhs oig and the fbi and others are working on an ad hoc basis with some of the dea tactical diversion squad's threat the country. this effort facilitates information sharing between all involved agencies.

it allows investigators to easily draw upon each other's expertise when conducting investigations. , i want to assure you that eea is working closely with our partners in combating drug diversion. when encountered health care fraud, as part of the administration's comprehensive approach, dea is committed to the enforcement with a need for access to the important medications by legitimate users. thank you for the opportunity to appear today. >> think you for that. mr. bloom? >> chairman, ranking member, thank you for inviting cms to testify at this hearing and for your focus on the program. i want to assure this committee that cms takes very seriously the concerns being raised today. not only does inappropriate prescribing weaken the fiscal program, but it

places our beneficiaries and harm's way. cms sincerely thinks the oig for its work and we welcome further oversight to help us improve the program. we have taken many steps to reduce waste, fraud, and abuse in the program, but clearly we can and should do more to take further steps. to be sure, the medicare part d program is stronger than ever. it has dramatically lowered metta care beneficiaries out-of- pocket cost is 2006. due to strong management i cms and our partners, its total costs are lower in what cbo and our actuaries projected in the benefit was passed in 2003. part d sets a standard for all payers for cost-containment measures. ofever, statutory construct operating -- of operation presents vulnerabilities. part d has seen rapid growth in payments for scheduled to pain medications.

we know that no one agency can solve these challenges. it will take resources from all levels of the government and the private sector to solve this problem. cms sees its role as the following -- number one, to leverage the data resources of complete part d claims to spot prescriptions and share this information with our partners in real-time. number two, to hold sponsors, so -- pharmacies, and our contractors accountable for prescribing which is consistent with our values. those that violate our standards should expect to no longer have a relationship with the medicare program. three, to support this committee and the congress in crafting further legislation to give the federal government more tools to address prescribing fraud. cms the past four years,

has made important changes to our policies and operations not reflected in 2009. specifically, cms has changed rules to require all -- all part d drug plans to have a national provider number attached to it. in the first quarter of 2013, 99.6 oh ballpark he claims were compliant with this requirement. cms now requires all claims for controlled substances to be checked for a valid dea number. cms now requires all partner that part d plans to conduct more comprehensive drug reviews for beneficiaries taking controlled substances. who receives certain levels of prescribing our number one being managed by a physician or cut off at the point-of-sale. to date, this program has cut

off 37 beneficiaries. we expect this number to grow, and we expect to expand this program to other medications. we have now began to leverage the fraud prevention system to identify outlier prescribers and pharmacies much earlier in the process. for example, last week's cms provided to all part d plans up -- a list of high-risk pharmacies for further review and scrutiny. while we feel these actions will help curb party fraud, we also plan to take more action. cms is now considering proposing new regulations that would require all part d prescribers to be validated as medicare providers. number two, cms is considering new regulations that would expand the scope of our part d fraud contract to provide greater access to pharmacies and prescribers records at the physical premises. cms will expand its part d plan compliance reviews.

a part plans that cement plans for controlled substances greater than -- should expect potential financial penalties. in closing, i do believe further legislation may be needed to curb controlled substance abuse. some plan sponsors have recommended locking in some patients to one pharmacy to receive controlled substances. we believe it is time for congress to consider the potential change in cms stands ready to help us committee to continue to make the party program as strong as possible. we will explore that and other ideas that require our action. this is shared responsibility. all hands on deck. mr. cantrell? mr. wright? >> good afternoon. we appreciate the opportunity to say to you today about prescription drug diversion and medicare -- in the medicare program.

in addition to the medicare dollars stolen, there are few areas of healthcare fraud are we saw such a direct and devastating impact to patients. the cdc has characterized restriction drug abuse as an epidemic. too much of the time the bills being paid by medicare. this is the drug trade subsidized by the taxpayers. bringing these criminals to justice is a top priority for oig. over the last five years, our prescription investigations have nearly quadrupled. of particular concern are prescription drug schemes that result in patient deaths. these are often associated with champagne clinics or pill mills. one particular clinic with associated -- was associated with the deaths of over 60 patients. the doctor and his wife who was a nurse and office manager were sentenced over 30 years in prison in order to pay back $114 million for their crimes. prescription drug fraud also

often involve sophisticated criminal enterprises. one case involved a licensed pharmacist who owned 26 pharmacies. he was the mastermind of the scheme that brought physicians and patient recruiters to defraud medicare, medicaid, and private health insurance. he paid kickbacks to physicians to write bad prescriptions. the pharmacist responsible for this scheme was sentenced to 17 years in prison and ordered to pay back $17 million. prescription drug schemes are not limited to controlled substances from oig also investigate matters that involve expensive noncontrolled substances. pharmacy bill for medically unnecessary and very expensive antipsychotic respiratory and cardiac drugs but never to dispense the drugs. the perpetrators of this scheme were sentenced to nearly five years in prison in order to pay back $4.9 million. these cases illustrate what happens when greed and profit from patient care. my colleague will discuss a

better oversight -- good afternoon. i pre-should the opportunity to talk about our most recent work examining medicare prescription drug going as well as our body of work regarding parking in our written statement outlines this work. byensure the care is ordered an appropriate medicare professional. today showseased that the safeguard is not always operating effectively. nationwide, medicare part d paid more than $5 million in 2009 for prescriptions ordered by individuals clearly do not have the authority to prescribe. these individuals included /therapist, athletic trainers, dental hygienist, and contractors responsible for home repairs.

in addition, we reviewed 10 states in depth and found that medicare inappropriately paid for drugs ordered by other types of unauthorized prescribers such as counselors, social workers, and chiropractors. medicare paid more than $26 million for these drugs. senator carper, as you indicated, tens of thousands of these prescriptions were for controlled substances. older buildings are not limited to unauthorized prescribers. 736 general care physicians. these positions were extreme outliers and prescribed very differently than their peers. some ordered extremely high percentages of certain controlled substances such as oxycodone and morphing. in one example, medicare paid $9.7 million for one california physicians prescriptions.

medicare paid a total of $5.6 billion in 2009 to these pharmacies. while some of these billions may be appropriate, or maybe due to billing errors, these patterns raised flags weren't for the review. this demonstrates the basic checks needed to be done routinely by medicare. in addition to conducting claims analysis, since the inception of parking, we have examined vulnerabilities, and notably we found that some sponsors did not identify any fraud and abuse cases, and the medic has not fully utilize data analytics to identify fraud and abuse. taken together, our findings demonstrate the need to strengthen party monitoring and

oversight. our written statement highlights a number of recommendations including requiring sponsors to verify prescribers have the authority to prescribe drugs, strengthened the medics and tonsors, requires sponsors refer potential fraud and abuse incidents to cms, develop a mechanism to recover payments for inappropriate part d claims, provide education and training for prescribers including issuing reports to prescribers with information about their prescribing patterns. in conclusion, more needs to be done to ensure patient safety and to prevent fraud, waste, and abuse. to and plan sponsors need conduct more rigorous oversight. the oig will continue to bring all of the oversight and enforcement tools at our disposal to protect part d and its beneficiaries. and you for your interest in this port issue and the opportunity to present the results of our most recent work. >> welcome.

these proceed. -- please proceed. i chairman, ranking member, am a lot allowed all, director of the special investigations for wellpoint. i also served as the chair the national health care antifraud association. thank you for the opportunity -- one of the strengths that we bring to the fight against drug --se is the data available this allows us to see the entire healthcare spectrum. we have a special

investigations unit. i'm one of their lead investigators overseeing a team in the southeast region. we are staffed with former federal state law enforcement agencies and medical professionals. we also have a data analysis team. today some of the top fraud and abuse schemes we currently see in prescription drug coverage include the practice often referred to as the doctor shopping whereby individuals obtain prescriptions for frequently abused drugs for multiple -- from multiple prescribers and fill them at different pharmacies. oftentimes provide her's as well as pharmacies are involved in this scheme. althoughviders -- they may have national provider identifier numbers, which are usually stolen or purchased, they do not actually perform services for real patients but bill insurers. pain management doctors overprescribing pain medications. wellpoint currently has 160 investigations open involving

medicare part d. tolpoint refers every case the antifraud contractor, and wellpoint currently has the second highest number of referrals to the medic nationwide. our goal at wellpoint is to prevent healthcare fraud and abuse for the benefit of our members help. to meet this goal, we have developed a number of different programs. first we have our controlled substance utilization monitoring program. medicare restricted recipient program. areugh these programs, we helping identify those who are engaged in or contributing to prescription drug abuse or drug diversion. for our medicaid plans, we have implemented a restricted recipient program. through this program, we identify a member who was in a three-month time visited three or more prescribing providers, three or more pharmacies, and filled 10 or more controlled substance prescriptions without confirmed underline medically

necessary condition. to combat fraud and abuse of schedule two narcotics, such as oxycontin, they are locked into using only one primary care physician, one retail pharmacy of their choice, and one hospital. our case managers work directly with providers and members, and to date, this program has saved lives and many millions of dollars in emergency department visits alone. second, we have a prepayment review program to identify irregular provider practice patterns through data mining and analytics. wellpoint has implemented to such prepaid provider review programs in which the most egregious billers who after being educated and refusing to modify their billing behavior are placed on prepayment review. in that case, providers must know us with paper claims accompanied by paper medical records so we can determine whether the procedures built are

reflected in the records. third, we have recently contracted with a vendor to do predictive modeling. the program uses advanced network technology to identify previously unknown and emerging fraud and abuse provider or member schemes. areect provider and claims investigated to identify fraud and abuse and are investigated thoroughly. since we began using this tool, and open 200 investigations. -- we have opened 200 investigations. we will prevent over $13 million in inappropriate payments by having placed the system at it -- added by providers which is one of the largest clavicle -- collateral abuses spawned by the prescription drug abuse in the u.s. the overall return on investment at this time is well over 15 to one.

we take a multifaceted approach to identifying bogus providers who do not actually perform services for real patients. our provider database team alerts investigator to the presence of new labs, pharmacies, and durable medical quitman suppliers. we perform a full background check as well as a drive by of the providers office space. in the last six months, we have identified and stopped payment to 63 bogus pharmacies through our collaboration with our system resulting in the savings of $2.1 million. first, we are supportive of investigation -- of giving cms the authority to establish a restricted recipient program and medicare part d are those beneficiaries displaying a pattern of ms. utilization.

second, we recommend that duly eligible beneficiaries with evidence of drug seeking behaviors should be locked into one managed care plan rather than continue to be allowed to switch plans on a monthly basis to avoid detection. third, we support better coordination and cooperation among cms, doj, and all stakeholders. for healthl expenses and sure anti-abuse programs should be included as activities that improve health care quality in the medical loss ratio copulation for both commercial health insurers as well as medicare advantage since they reduce waste, reduce the cost of healthcare, and enhance patient safety by helping to identify and remove providers engaging in unsafe and fraudulent practices. in conclusion, i would like to thank the committee for the

opportunity to testify today on behalf of wellpoint on this critical issue and pledge our support. >> thank you. dr.ut this in some context, coburn and i are focused on our -- has your name ever been mispronounced? >> never. [laughter] >> i will work on that. to put this in context. budget deficits are down, down from about $1.4 trillion four years ago. this year, it will be only about $650 billion. that his improvement. the biggest piece of our deficit is healthcare costs.

the 800 pound gorilla in the room is probably medicare. rather than cutting benefits to people who actually need it, what we have to do is to look for every bit of money that is waste spent inefficiently, fraudulently. that brings us to today's hearing. i've got numbers on the board. these are 2009 numbers. month -- thatat medicare paid inappropriately for prescription drugs that we are aware of to about 470,000 prescriptions that year. some 29,000 controlled substance prescriptions. 15,000 or so prescribers. my fear is that that understates the situation. we never conduct the doctor hearings -- gotcha hearings. i want a sense of urgency.

we do not have the money to be wasting it, whether it is $31 million or $131 million -- we do not have the money. i supported the medicare prescription drug program. not many democrats voted for it. a lot of people would be concerned -- were concerned that it would not be a benefit. the folks who use it would not like it. it turns out it hasn't run over budget. $60 billion a year or so. a little more than that. 5% of the people who use it -- 95% of the people who use it like it. those are better numbers than i have at home. having said that, we've got to figure out a way how to save money. everything we do, we've got to look at it and say, how do we save money? we have a bit of a to do list. i want to ask everybody in the panel to react to it and find out who is responsible for doing that. the first one may involve some

responsible before us on this side. go ahead. >> the first one was to establish a restricted recipient program and medicare part d or a locking program. >> don't we have that in medicaid? say to somebody who is thought to be an abuser, you say, you will have one doctor or one pharmacy and that is it. the federalequires government. i do not know that it does. it seems strange to me that we have that provision in medicaid but not in medicare. let's start off. your reaction? >> again, it is a little outside the scope of my authority, -- >> be very brief. >> as far as thai version goes, it is a -- as divergent goes, it is a great idea.

thelieve the lot in program is being used in ohio. the ohio board of pharmacy, they believe in that program. >> i am told it is used in a number of states, not just ohio. we will find out how many. doi think that many states have that program. i do not believe that it is a federal requirement, but i know that states on their own do put in place lock in the programs. the part d program in its current construct one's benefit through many different part d plans could this is an area that congress would have to authorize. i think it is time that congress consider this change. congress would have to set out clear thresholds. we are happy to work with this committee. i think the drug utilization review program that cms put in place this year could serve as a model for which beneficiaries

hit that threshold. legislation that would help us explore ways to prevent doctors shopping -- dr. shopping. some patients are paid kickbacks to participate in these schemes. it would be interesting to explore ways to prevent that activity. >> i agree. i think there are maybe two different kinds of lock ins. one is to lock in benefit -- lock in beneficiaries to approve -- to a specific plan, or another to a pharmacy good at think both should be considered. >> your second point? >> that was indeed the dual eligibles with -- that bounce from one managed care plan to another on a monthly basis. we at wellpoint are not allowed aetna thatnot -- somebody coming from our plan

is going to be a problem for them as well because of vehicle requirements. -- hipa requirements. >> what can we do within the restraints? >> i think honduras can clearly provide greater -- congress can clearly provide greater authority for that data to be shared. there is always a balance between privacy and controlling payments. is is another area where i suggest congress can give more permission for that data sharing to happen. >> what was number three? was we support better coordination and cooperation among cms, doj, and all stakeholders. >> our friends from oig? react to that one. >> we are very much in favor of better coordination and communication. we are coordinating very well. we have the health care fraud prevention partnership established. it is in its infancy.

we are supportive of private- public and sharing. -- data sharing. >> number four? to recommendne was that all expenses for health insurance and i abuse programs be included as activities that improve health care quality in the medical loss ratio. right now, they are not. >> reaction to any of that? blum? -- ithink cms believes think it is consistent with state insurance commissioners -- that fraud and abuse is part and parcel of what a plan should be doing. it is a cost to run a well- managed program. cms does permit collections to count towards the mlr.

we require plans to set up procedures that are part and parcel -- we do allow plans to allow collections towards the benefit side of the mlr. , you have a to-do list for us. there is work to be done on both sides. not just the federal government, not just legislation, not just cms, but a bunch of us. dr. coburn? get you on the record a little firmer. cms supports the modification of part d program to establish a lock in? >> what i can say is that we but no official position, i believe it is time for congress to consider this change. >> semesters not have a position? it is time for the congress to consider it. it is not part of the

president's 2014 budget mission, but advocate is time for congress to make the change. >> with your recommendation back up the change -- the chain at cms that would go along with congress writing the bill that would do that? >> yes, we are happy to support the committee. >> would cms go back up the lifting ofupport a the rules so insurers can protect patients and their long- term well-being by allowing them to transfer data on drug seeking behavior patients? principles that cms believes is we have to have greater data sharing to spot outliers, beneficiaries, pharmacies, and physicians. >> if i wrote a bill that would allow a little hole for the insurance industry that are managing this to share the data on drug seeking behavior to the next managed care plan, there

would not be an objection from cms? >> we would have to see the details -- >> in principle? >> in principle, yes. its $40u think cms million worth of value year from the program? >> i think it can be improved. we want medics to be active. we want the medic to be proactive. of a strongne piece cms oversight practice. i do think that the process can be improved. to be more proactive, to take more action. data analysis is one piece. it is what you do with the data. we have to have action. we have to have many steps he on law enforcement action. i agree with you that we can improve. >> 21 referrals last year for $14 million for prosecution. you heard wellpoint talk about

hundreds they have done in the last six months. explain to me why we are not getting more value out of the program. >> my understanding is that the way the program works today is that once the referral is made, it has to meet certain thresholds for law enforcement to take action. what i think we want to see is the same principle that we have in the part b program. there are different levels. for behavior that is not -- that does not meet the law enforcement prosecution threshold, but is still outlier behavior, i believe the program should extend that position and move to paper claims and the same processes that wellpoint talked about. our planse holding and contractors to that standard. one change that we can consider is rather than having prescribers self-declared what their backgrounds are according about being

formerly enrolled into the medicare program, similar to we plan, that is a change to make. >> when? >> we put out rules on the fall. it is in the process right now. >> we are going to put out rules. this time next year we might see a change? >> my hope and my promise to that in 2013, is we will see a number -- a lower number than what the oig found. cms will continue to make changes to our rules. that number down close to zero. my hope is that given the change that cms has made, including requiring the mpis, holding our contractors to a higher degree of accountability, we will see lower numbers. that will continue through further policy change in

operational details. date andot no firm people will continue to die under this program and we will put out rules and the fall. why would we put out rules now? >> we are taking action steps to respond to the oag funding. we have shared the pharmacies that are out fliers to all our people for actions today. the burdens balance that will be placed on for scribers who are part of the medicare program today that need to come into the medicare program for validation and oversight and that is a process we cannot do overnight. we have to go into a proposed rule making. that is one more step the agency can take to achieve better results. >> you've got