premiums. if a catastrophic care system that $3000 a person, means that prison is on the rhône on $10,000 a year. we have got to get some idea of the scope of money. the 2.7 train dollars we will spend on healthcare this this year did not all come from somewhere else. 350 million people are not all being paid for by somebody else. we are all paying for it. will pay billions of dollars subsidizing medicare. you could give 100 million people $8,500 a year for their care. that is $34,000 for a family of four. when you build a system inefficient on price and allnistration and you are paying for it. >> you left out the fact the people who are the beneficiaries of medicare have medical needs because of their age, that puts

them five or six times above the average. apples tomparing oranges. >> i am happy to tell -- talk about that. >> let's table the discussion. we cannot give you both the last word. [applause] [indiscernible] >> in a few moments, a supreme court oral argument. , a debate on whether there is a connection between mental illness, guns, and violence. after that, we will be opened the discussion on what medicare plays on the discussion of healthcare. on the next "washington .ournal," james mcconville

he will join us from the airfield. we will also talk about the career of george washington of thee offer -- author forging of the presidency. live on c-span every morning at 7:00 a.m. eastern. >> they thought coming west, they would leave behind the racism. the sunshine and a little more benignly on them here. of themer a number telling me it was a more cruel kind of racism. a smile on the face but a dagger behind the back is how they describe california. they were not allowed to live in any of the cities, not even small town. they were locked out. the only land available to them or these patches of land. literally, when you write up on the land and look at it, it is so salty it looks as if it

snowed there. this is the land available to them. they build their little wooden shacks here. no water. they had to go into town to fetch the water. no city sewers. they had outhouses. no police roamed the area. it was a no man's land. >> african-americans who migrated to california from the south. as we explore the history and literary life this weekend on c- span two's book tv and american three. tv on c-span pack the supreme court considered a case regarding affirmative action in higher education. in a decision handed down last tok, the court voted 7-1 send the case that to the court of appeals. the oral argument in the case was a little less than an hour and a half.

>> well, i get to say that this is case number 11-345, fisher against the university of texas at austin. and you get to say -- >> mr. chief justice, general suter trained me too well. mr. chief justice, and members of the court, and may it please the court, the central issue here is whether the university of texas at austin can carry its here is whether the university burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the equal

protection clause, to abigail fisher met the two tests of strict scruty whicare applicable. first -- >> mr. rein, before we get to that, because the court is supposed to raise it on its own the question of standing. the injury -- if the injury is rejection by the university of texas, and the answer is no matter what, this person would not have been accepted, then how is the injury caused by the affirmative action program? >> well, justice ginsburg, the first injury that was before the court was the use of a system which denied equal treatment. it was a constitutional injury, and part of the damage claim was premised directly on the constitutional issue. >> how do you get past texas v. lesage with that injury, which says that mere use of race is

not cognizable injury sufficient for standing? >> lesage was litigated on its merits, and the question was whether lesage could carry his case when -- on summary judgment when it was apparent that his coch was that he was denied access to the graduate program at the university of texas, was not sustainable. as i said -- and there are several factors in this case that are quite different. first, there is a constitutional injury as such, and the court has recognized it. second, the fact premise, she could not have been allowed in under any circumstance, was never tested below, wasn't raised below. it comes up in a footnote in >> can i go to another side? she's graduated.

>> correct. >> she disclaimed the desire after her application to go to the school at all. she was permitted to apply for the summer program and get in automatically, and she didn't, correct? >> no, that's not correct, your honor. she -- she was not automatically admitted. she was considered for the summer program and rejected. you are talking about the cap program, where she could have attended a different university in the texas system, and had she been able to achieve -- >> but she's graduated. >> she has graduated. >> injunctive relief, she's not going to get. so what measure of damages will she get or will she be entitled to? >> well, that issue, of course, is bifurcated, and we've reserved the ability to >> but you have to claim an injury, so what's the injury >> well -- >> that you're claiming that would sustain a claim of damages? >> the denial of her right to equal treatment is a constitutional injury in and of itself, and we had claimed certain damages on that. we -- we started the case before it was clear whether she would or wouldn't be admitted. >> you still haven't answered how lesage gets away from that >> well, if there's >> but if there's a -- give me another. >> well, i think -- >> damages question. >> on the -- if we then, on remand, were to assert damages contingent upon the fact that she should have been admitted to ut and was not admitted, we would then have to prove that but for the use of race she would be admitted. that's the thrust of lesage. whether we can prove it or can't prove it is something you can't tell on this record. it's merely asserted. and i would point out that texas said below, there was no way to determine that issue without

>> what damages? >> we've had cases involving alleged discrimination in state state contracting, and we haven't required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise, have we? >> no, sir. >> it's -- it's been enough that there was a denial of equal protection. >> that is our correct, and that is our first premise. and i would say that the same issue was raised in bakke. and in bakke, the contention was he couldn't have gotten into the medical school; therefore, he has no case. the court said, in footnote 14 to justice powell's opinion, that's a matter of merits; it is not a matter of standing. i think in parents involved, the same type of contention was made with respect to the louisville class plaintiffs whose son had been admitted to the school of his choice, and the court said damages are enough to sustain standing. there is a live damages claim here, and i don't think there is a question of standing. >> her claim is not necessarily that she would have been -- would have been admitted, but that she was denied a fair chance in the admission lottery.

just as when a person is denied participation in the contracting lottery, he has suffered an injury. >> yes, justice scalia, i agree with that. >> if you are going to the merits, i want to know whether you want us to -- or are asking us to overrule grutter. grutter said it would be good law for at least 25 years, and i know that time flies, but i think only nine of those years have passed. and so, are you? and, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on? >> justice breyer, we have said very carefully we were not trying to change the court's disposition of the issue in grutter, could there be a

legitimate, a compelling interest in moving -- in using race to establish a diverse class. what -- the problem that we've encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass >> so your question is whether your point is, does your case satisfy grutter? is that what you're arguing? >> we litigated it on that basis, yes. >> well, how do you want to argue it right now in the next ten minutes? i'm interested because i have a very short time to get my question out, and i need to know how you are going to argue it. >> well, justice breyer, our argument is we can satisfy grutter if it's properly read. what we've seen -- >> may i ask you on that specifically, let's take away the 10 percent solution. suppose the only plan were the one that is before the court now, no 10 percent. this is the exclusive way that the university is attempting to increase minority enrollment.

then, if we had no 10 percent solution, under grutter would this plan be acceptable? >> well, i think that there would be flaws under grutter even if you assumed away something that can't be assumed away because it is a matter of texas law, that is, there is a top 10 percent program, and that >> well, then the question is can you have both? but it seems to me that this program is certainly no more aggressive than the one in grutter -- it's more -- in fact, more modest. >> well, i don't agree with that, and let me explain why. in order to satisfy grutter, you first have to say that you are not just using race gratuitously, but it is in the interest of producing a critical mass of otherwise underrepresented students. and so to be within grutter

framework, the first question is, absent the use of race, would we be generating a critical mass? to answer that question, you start -- you've 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.

>> so it is not a system with just exclusion. >> could you comment on this and i hope we can get back to justice scalia's question. you argue that the university's race conscious admissions plan is not necessary to achieve a diverse student body because it missed so few people, so few minorities. i had trouble with that reading in the brief. if it's so few, what's the problem? >> it's a question -- >> let's assume that it resulted in the admission of many minorities. then you come back and say, well, this shows that we were probably wrongly excluded. i see an inconsistency here. are you saying that you shouldn't impose this hurt or this injury generally for so little benefit? is that the point? >> yes, that's part of it. the second is the question of reasonably available

alternatives. if we take texas at its word and say we are satisfied, they are happy going on with the way they apply race today, we tried to measure, well, what difference is it making and could you achieve the same thing with a reasonably available race neutral alternative. that was the question asked in glutter. they were supposed to analyze that, they didn't look at it. >> if the race neutral alternative is the 10% plan? >> the race neutral alternative includes an extension of the 10% plan because it's a major generator of minority admissions. >> would you say and that's ok because it's race neutral, but is it really? i mean the only reason that they instituted the 10% plan s to increase minority enrollment. and that, the only way it works if you have heavily

separated schools. and worse than that, i mean, if you want to go to the university of texas under the 10% plan, to go to the low performing school, you don't take challenging courses because that's how you'll get into the 10%. so maybe the university is concerned that that is an inadequate way to deal with it. >> justice ginsberg, let me say that, a lot of that is speculative. there is nothing in the record to support it. we don't know. they have never surveyed the top 10 minority admits. >> the 10% is not imposed by the university, it's not their option to say this is not good for education because people will take easy courses. it's imposed by state law, isn't it? >> correct. >> anybody in the top 10% in any school gets into the university of texas. >> the fifth circuit says you

can't disregard its consequences because it's a matter of law, i'm saying they could choose to extend where it is today, it's capped at 75%. it's not the only option. that's not the only alternative and simply one simple alternative is they could look at the yield, what percentage of the admitted minorities are they encouraging -- >> this is what is underlying my thing here, i want to get you directly to answer it. i did look it up. before hawkwood and the 10% plan, it looked like on the african-american side, it averaged 5% per year really pretty steadily. after hawkwood and 10%, it went down a little bit, not a lot, t went down to 3.5%, 4%. they introduced grutter, it's back up to 5%. is it a lot, a little, there are several thousands universities and what is it

we're going to say here that wasn't said in grutter that isn't going to take hundreds or thousands of these people and have federal judges dictating the policy of admission of all of these universities. you see why i'm looking for some certainty. >> you saw what happened, you saw the numbers. >> sorry, go ahead. >> justice breyer, i will answer your question, i would like to reserve the time. >> you can answer it now or not at all. that's up to you. [laughter] generated was before 2004. i just want to make sure the record doesn't depend, they don't depend on race to do it, minimal change with the use of race of that's why we say there is an alternative which would serve it about as well in increasing yield or indeed in reweighting the p.a.i., which is the critical element here so that you put more emphasis on socioeconomic factors and less

on the essays which are an academic measure in the p.a.i. there is a lot they could do. >> the universities have a way of qualifications, too. >> it's not the job of the court to tell them how to do it. it's their job to examine the alternatives available to them and see if they couldn't -- >> can you tell me how race and their use of race wholes those other factors in their system as its created? >> the question is not whether it overwhelms them. they say, they admit it has affected, there are admissions that would not have taken place but for, somebody else would have had that place but for the use of race. i think justice kennedy, just to answer your question fully, you have to analyze race neutral alternatives and if you look at parents involved, of that the critical question. the outcomes were so small that they were readily available alternatives. >> perhaps you could summarize

by saying, by telling us from your point of view, this plan fails strict scrutiny on one or two or both levels. a, because the objective is inpromote or ill-defined, and, b, because the implementation are defective. which or both of those are you arguing? >> we have argued both. we continue to argue both. in what respect does this plan fail strict scrutiny under both of those categories? >> under the category, the first category, was it a necessary means of compelling a concerning interest, we don't believe they have shown any necessaryty for doing what they're doing. race should have been the last resort as a first resort. that is it in a nutshell. they failed in every respect. what we're saying they didn't consider alternatives and their

treatment of asian americans and hispanics makes them an incomprehensible distinction. they say we don't worry about asians. there are a lot of asians. it's a demographic measure which is a forbidden measure. they're in excess of their share of the texas population. if you are trying to find individual comfort levels and breaking it down between african-americans and hispanics. >> council, you're the ones who have assumed that they are valuing different races differential, but asian numbers have gone up, however they structured this p.a.i. and as i understand their position, race is balanced against other issues like socioeconomics, the strength of the classes people took. it's never a stand alone. even a white student, i presume, who goes to an entirely black or an entirely la continueo school who becomes

class president would get some points because he has or she has proven that they foster, can deal in a diverse environment. that's how i understood their plan. it's not just giving you a plus because of race. it's combining that with other factors. >> there is a plus because of race. there are many other factors in the decision and might i say at the white student president of the class in an ethically different school is a measure of leadership. leadership is an independent factor in the p.a.i. he is not getting that point because of his race. he is getting that point because of his leadership. that's a race neutral criteria that could work for anybody. so race is an independent add-on. is it something they can use to boost the p.s.a. element in any way they like. we say it's not necessary. it's not narrowed tailored.

it ignores the available alternatives. it's disparate treatment to asian americans because they're minorities as well and to the extent it depends on the classroom factor, there is simply no way to relate or fit what they're doing to the solution of the problem which they use as a major foundation of their proposal which is the nondiverse classroom. certainly there is no corners there. i -- correspondence time is up. >> mr. gar. >> for two overriding reasons, the admission time before under the court's precedence. first it's indistinguishable in terms of how it operates in taking race into account as only one modest factor among many for the individualized considerations of africans in their total and plans that this court has upheld in grutter and approved in the harvard plan. > i put that in the narrow

tailoring category. it's narrowly tailored the way grutter did. not the necessity prong and notted need prong, not the necessity prong. i think most of his argument is centered on that. >> that was the second point i was going to make. the wholistic admissions process at issue here is a necessary counterpart to the state's top 10% law and works offset the system matic drawbacks in that law, the university's interest in assembling a broadly diverse student body. >> counsel, i need to figure out exactly what these numbers mean. should someone who is 1/4 hispanic check the hispanic box or some different box? >> your honor, there is a multiracial box, students check boxes based on their own determination. this is true -- >> but suppose a person who is

1 -- 4% hispanic, his own determination would be hispanic box. >> they would check that box. what about 1/8? >> your honor, they would make that self-determination, your honor. if anyone in any part of the application violated some honor code -- >> would it violate for someone who is 1/8 hispanic and i identify as hispanic to check the hispanic box? >> i don't think it would, your honor. i don't think that issue would be any issue upheld in grutter -- >> you don't check in any way -- >> we do not. and no college in america, the ivy league -- >> how do you know, you have 15% african-american or hispanic or 15% minority? >> your honor, the same way that that's determination is made in any other situation that i'm aware of where race is taken into account. >> you say the same way. what is that way? >> the person self-identify on that form. >> do they have to self-identify? >> every year people do not. >> how do they decide they want

not just the critical mass in the school at large, but class by class, how do they figure out the particular classes don't have enough? someone walks in the room and looks them over to see who looks asian, who looks black, who looks hispanic, is that how it's done? >> no, your honor. let me try to be clear on this. the university has never asserted a compelling interest in any specific diversity in every single classroom. it simply looks at classroom diversity as one dimension of student body versety. >> i don't know what you're talking about. it is either a factor that is validly in this case or it isn't. do they look to video classroom diversity or not? if so, how do they decide when classes are diverse? >> this court in grutter, your honor, and maybe the most important thing that was said during the first 30 minutes when given an opportunity to challenge grutter, i understand my friend not to ask this court to overrule it. this court in grutter

recognized the obviously fact that the classroom is one of the most important environments where the education benefits of diversity are realized. the university of texas, determining whether or not it reached a critical mass looked to the classroom. >> i'm asking how. how did they look to the classroom? >> well, you're horn -- >> do they require everybody to check a box or they have someone figure out this person looks 1/32 hispanic and that's enough? >> they did a study and took into account the same considerations they did in discussing the enrollments. >> what kind of a study? >> well, your honor, it's in the supplemental joint appendix. >> how do they decide how many priorities are? >> there are student lists in each classroom. >> there are student lists in each classroom that have race identified with the students? >> no, your honor. each classroom, the university knows which students are taking the classes. one can then, if you want to gauge diversity in the classrooms, go back --

>> you go back to what they checked on the form? >> your honor, this was part of a multi-- >> that's a yes or no question. you go back to what they checked on their application form in deciding whether economics 201 has a sufficient number of african-americans or hispanics. >> that is information that is available to the university, your honor, the race of students that they have checked on the application. i want to be clear on the classroom diversity study. this is one of information points -- >> how does the non10% part of the plan further classroom diversity? my understanding is that the university has over 5,000 classes that qualify, they're small, and the total number of african-americans and hispanics were admitted under a part of the plan was challenged was a little over 200. so how does that, how can that possibly do more than a tiny, tiny amount to increase

classroom diversity? >> well, your honor, first, i think that 200 numb is erroneous. there are more minority candidates -- >> per class? >> not on a per class basis. >> in class? >> in looking at the classrooms, your honor, what the university found was shocking isolation. >> how many nontop 10% members of the two priorities at issue -- minorities at issue here are admitted at each class? >> your honor, we didn't like specifically at that determination. we tried to find if .300 wholistic admits or percentage admits. we concluded in 2004, this was before we did the classroom study before the plan at issue was adopted. at that time, there were no wholistic add admits taking race into account. what we concluded, if you looked at african-americans, for example, in 90% of the classes of the most common participatory -- >> i don't understand your

answer. you know the total number of let's say, african-americans in an entrance class, right? >> yes, your honor. >> you know the total number that were admitted under the top 10% plan? >> we do, your honor. >> subtract a from b, you'll get c, right? >> your honor -- >> what is the value of c per class? >> your honor, i don't have the answer to that question. let me try to explain why the university didn't look specifically to that because at the time that the classroom diversity study was conducted, it was before the wholistic admissions process at issue here was adopted. in 2003, 2004, and so that determination wouldn't have been as important as just finding out are african-americans or hispanics underrepresented minorities present at the university in such numbers that we're not -- >> what is that number? what is the critical mass of african-americans and hispanics at the university that you are working toward? >> your honor, we don't have one. >> how are we supposed to tell

whether this plan is narrowly tailored to that goal? >> to look to the same criteria this court in grutter. this court in grutter specific rejected the notion that you can come up with a fixed percentage. >> does critical mass vary from group to group? does it vary from state to state? >> it certainly is context you'll. it could vary, more than. my friends asserted 20% as a critical mass. that's lumping together different minority groups. >> could you answer my question. what does the university of texas, the university of texas think about those questions? is the critical mass for the university of texas dependent on the breakdown of the population of texas? >> no. it's not at all. it's not at all. it's looking to the education benefits of diversity on campus. i think we actually agree on what that means and what grutter said it meant -- >> could you explain, i think you were trying to before, it

seems to me the critical question in this case, why idn't the 10% solution suffice ? there are a substantial number of minority members admitted as a result of the 10% solution. for sn't that enough diversity. >> let me make a couple points, your honor. first, if you look at the numbers, we don't think it's the numbers, but if you looked at the numbers after seven years, it had remained stagnant or worse. 2002 african-american enrollment had actually dropped to 3%. that's one part of it. the other part of it is if you look at the admissions under the top 10% plan, taking the top 10% of a racially identifiable high school may get you diversity that looks ok on paper, but it doesn't guarantee you diversity that produces educational benefits on campus. that's one of the considerations that the university took into account. >> i don't understand. why doesn't it? >> because, your honor, as is true for any group and the

harvard plan that this court approved specifically recognized this, you would want representatives and different viewpoints from videos within the same racial group just as you would from individuals outside of that. >> what kind of viewpoints? political viewpoints? >> anyone's experiences, where they grew up, the situations that they experience in their lives. >> this has nothing to do with racial diversity. you're talking about something else. >> your honor, it directly affects the educational impacts of diversity in this case. the minority candidate has shown that he or she has succeed in an integrated environment, shows leadership, community service is precisely the kind of candidate that is going to come on campus, help to break down racial barriers, work across racial lines -- >> so it's likely to be included within the 10% rule. when was the 10% rule adopted?

>> 1998, your honor, with respect to your factual point, that's absolutely wrong, your honor. if you look at the admissions data that we kite on page 34 of our brief, it shows the breakdown of our applicants under the two plans and it hasn't been disputed in this case to this point, although the percentage plan certainly helps with minority admissions, by and large, the minorities who are admitted tend to come from segregated racially identifiable pools. >> i thought the whole purpose of affirmative action was to help students who come from underprivileged backgrounds. you make a very different argument that i haven't ever seen before. the top 10% plan and there are lots of african-american, lots of hispanics and a fair number of african-americans, you say, well, it's faulty because it doesn't admit enough african-americans and hispanics who come from privileged backgrounds. you specifically have the child of the

successful professionals in dallas. that's your argument. you have an applicant whose parents, let's say, one of them is a partner in your law firm in texas. another one is a corporate lawyer. their income puts them in the top 1% of earners in the country. they both have graduate degrees. they deserve a leg up against an asian or a white applicant whose parents are absolutely average in terms of education and income? >> no, your honor. let me answer the question, first of all, the example comes almost word for word from the harvard plan that this court approved in grutter and justice powell -- >> should the answer to that question be no, being a african-american or being a hispanic is a plus factor? >> because, your honor, our point is we want minorities from different backgrounds. we go out of our way to recruit minorities from disadvantaged backgrounds. >> you're saying is what counts is race above all?

>> no, your honor. >> that's the necessary response to justice alito's question. >> your honor what we want is different experiences that are going to -- >> underprivileged of a certain race and privileged of a certain race, that's race. >> no, your honors, it's not race. it's just the opposite. in the decision this court said that failing to take into account differences among members of the same race does a disservice -- >> the reason you're reaching for the privileged is so that members of that race who are privileged can be representative, and that's race. >> it's members of the same racial group, your honor, bringing different experiences. to say if you took any racial group, if you had an admissions process that only tended to admit people from a particular background and perspective, you would want people from different perspectives. that's the interest that we're

discussing here, it's the interest that the harvard plan specifically adopts. >> i understand my job under our precedence to determine if your use of race is narrowly tailored to a compelling interest. the compelling interest you identify is attaining a critical mass of my mortgage students at the university of texas, but you won't tell me what the critical mass is. how am i supposed to do the job that our possess dense say i should do? >> your honor, what this court's presence say is the critical mass is an environment in which students -- >> i know what you say, but when will we know that you have reached a critical mass? there has to be a logical end point to your use of race. when will i know that you have reached a critical pass? >> your honor, this question, of course, implicates grutter itself. i think i understood my friend not to challenge that. they haven't challenged that as a interest at all. one we look to feedback directly from students about

racial isolation that they experience. >> so you conduct a survey and ask students if they feel racially isolated? >> that's one of things. >> that's our basis for our constitutional determination. >> your honor, that's one of the things we looked at. >> what else? >> we looked at enrollment data which showed, for example, among african-americans that african-american enrollment at the university of texas dropped to 3% in 2002 -- >> at what level will it satisfy critical mass? >> i think we all agree that 3% is not a critical mass. >> at what level will it satisfy the requirement of critical mass? >> when we have an environment in which african-americans -- >> how am i supposed to decide whether you have an environment where particular minorities don't feel isolated? >> part of it is a judgment that the educators are going to make. you would look to the -- >> you tell me, that's good enough. >> no, your honor, not at all. you look at the criteria that we looked at, the enrollment data, the feedback from students. we also took into account

diversity in the classroom. we took into account the racial climate on campus. >> would 3% be enough in new mexico, your boarding state where the african-american population is around 2%? >> your honor, i don't think it would. i mean our concept of critical mass isn't tied to demographic. it's undisputed in this case that we are not pursuing any demographic poll. many factors say that race is a modest factor. it's indisputed that we're taking race into account only to consider individuals in their total. >> mr. garre, i think that 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's the bottom line of this case and you're saying and i think rightly because there are cases that you can't set a quotea because that's what our

cases say you can't do. so if we're not going to set a quotea, what do you think is make andard we apply to the judgment? standard you would apply is one set forth in grutter, that would look to whether or not the university reached an environment in which members of underrepresented minorities, african-americans and hispanics, do not feel like spokespersons for their race. an environment where cross racial understanding is promoted, an environment where the education benefits of diversity are realized. the reason why the university of texas concluded that that environment was not met here and laid out in several different information points that this court can review. >> that holds for only another what, 16 years, right? 16 more years and you're going to call it all off? >> we don't read grutter as established in that type of time clock. >> grutter has precedence.

we are guided, the advocates are. what we look to is once we're looking at this -- every year we're looking at it carefully. once we reach that point, of course, we're going to stop -- >> mr. garre -- >> some of the stuff that grutter says you agree with, some of the stuff that it says you don't agree with. >> i don't know that i disagree with anything that it said. >> before your time runs out, there is another point i would like you to answer is the argument based on parents involved, that the game is just too small to warrant a racial criteria. you have the 10%, you don't need more. how do you answer the argument that it is too small? >> i point to my present on conversion that it helps with minority enrollment. secondly, i point to the fact that african-american, hispanic

admissions did increase. they doubled from the period 2002-2004. this has had a real important impact on the diversity at the university of texas. >> how do you justify lumping together all asian americans? do you have a critical mass of filipino americans, cambodian americans? >> the common form that is used has asian american. it has country of organizin that can be spelled out? >> do you have a critical mass of the group in asian americans? >> we look at underrepresented minorities which is what the grutter decision asks us to do. if i can make a quick point of jurisdiction -- >> before you get to that, suppose we, that you in your xperience identify a numerical category, numerical standard, numerical designation for critical mass. it's x percent. during the course of the

admissions process, can the admissions officers check to see how close they're coming to this? >> no, no, your honor. we don't. on page 389 -- >> you cannot do that? >> we wouldn't be monitoring the class. >> isn't that what happens in grutter allowed that? >> it did, your honor. >> are you saying that grutter is incorrect? >> no, your honor. it was one of the things that you pointed out in your dissent. what i'm saying is we don't have that problem. >> i'm asking whether or not you could do that. >> i don't think so because the grutter majority didn't understand it to be monitoring for purposes of reaching a specific demographic. they don't monitor, but race is wholistic of your factors that appears on the cover of every application, right? >> all of the wholistic factors are taken into account on the application. >> the question is whether race is the only one of the wholistic factors that appear

on the cover -- >> that's true, on the cover of application. can i make a point on jurisdiction? >> you can have a little more time, your friend is getting a little more time. >> first of all, they cannot show that she was injured by any consideration of race. that's at pages 415, >> it makes clear that ms. fisher was not admitted no matter what her race. >> are you arguing she does not have standing? >> you gave us one footnote. this goes to the relief that she has requested. the only thing that is live in

this case is a 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? >> back 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.