Questions: John Payton on affirmative action

Crisis, The, Jul/Aug 2003

On June 23, the U.S. Supreme Court issued landmark rulings in the two University of Michigan affirmative action cases. The court ruled 5 to 4 in Grutter v. Bollinger to uphold the admissions process at UM's law school. The program attempts enroll a "critical mass" of Blacks, Latinos and Native Americans by closely considering each applicant individually. But in Gratz v. Bollinger, the court ruled 6 to 3 that Michigan's undergraduate admissions program, which automatically gives members of "under-represented" racial minority groups an extra 20 points on a 150-point scale, was unconstitutional. The rulings represent a victory for proponents of affirmative action. In writing the majority opinion in the Grutter case, Justice Sandra Day O'Connor stated that "student body diversity is a compelling state interest that can justify using race in university admissions." She added that race-conscious admissions should be limited in time and that "we expect that 25 years from now the use of racial preferences will no longer be necessary." Attorney John Payton argued the Gratz case, considered the more challenging of the two. A partner at Wilmer, Cutler & Pickering, a Washington, D.C., law firm, Payton has represented Michigan for the past six years, ushering the university through the trial and appeals courts up to the high court.

How do you view the outcome of the Supreme Court rulings?

It's a sensational victory on the main point: Is it lawful to take race into account in putting together a diverse student body. The larger question is answered identically in the two cases. The fact that the admissions program in the undergraduate case had problems that the court found to be unconstitutional - we would rather to have won on that, too, but I'm quite confident it will be possible to come up with a fix in the undergraduate process that will pass muster. That'll happen this summer. During oral arguments did you ever get a sense of how Justice O'Connor, who was considered the swing vote, might rule?

I had a very good sense that we were not going to see [Regents of University of California v.] Bakke over turned. I did not think that I got any hostile questions from any justice, I'd say with the exception of [Justice Antonin] Scalia. On the basis of the questions that I was asked, and that I saw other people being asked, I felt pretty good about Bakke's future.

What do the Michigan rulings mean for states like Texas, California and Florida? They're different. In the 5th circuit, Texas, Louisiana and [Mississippi], the Hopwood case had made it unlawful for any institution of higher education, public or private, to use race in the admission process in any way. This reverses that. They can now all do what this case sanctions. ...If they choose to. California and Washington state can't because of referenda [they passed, Proposition 209 and Initiative 200, respectively]. In Florida, the public [universities] can't because of the governor [who issued an executive order], but the privates can.

What about this 25-year clock? What happens 25 years from now?

If you had asked everybody in 1978 (the year of the Bakke ruling) if they thought we would still need to use race in order to achieve a diverse student body, I think you'd probably have gotten a majority of folks who said, "no." We would have worked it out by now. We should be a little more sober about how the next 25 years. I think the statement [O'Connor] made from the bench and what's in her opinion is an aspiration. She does not expect that we will still need to do this in 25 years. As an aspiration I agree with it, and we ought to all do what we can to see that that's correct.