on the same footing for consideration which suggests that there's a certain element of procedural fairness involved with these cases and second that the schools involved must give consideration to serious they issued a letter that allowed people to supplement their personal statements about diversity but this letter after the deadline and beyond the word limit never went to white you're not giving there is an element of procedural unfairness about only allowing racial minorities and not other people to add to their statement and provided supplemental information about what diversity they can bring to the school there's also i would there be implemented for example let's suppose that this option was available to everybody how would be true what would be true well it's unclear how it is triggered current or how it was triggered in ninety four ninety five ninety six but i was chested if there are elements of an individual's application that would suggest that additional information be worthwhile then the school ought to in a recent neutral way send out such letters not minorities who might be able to supplement their diversity statements but to white who might also be able to supplement their diverse state how would that be applied to any of your clients well certainly even under defendant even defendants conceded that the tourists met would have been a much stronger candidate had she been given that opportunity there were things in her record that she did not unfortunately put in her initial statement that she never had the same opportunity as others who were not of her race did to supplement that state tell us with were what i'm wondering is whether the only kind of information in the letter that maybe there's nothing wrong with that but the prop there's nothing wrong with doing that as long as you're doing something similar for other people and putting all the firstly characteristics on the same footing for consideration  course or other diversity characteristics that the law school took into account aside from race and this was giving some people by race an advantage to supplement their personal statement to identify other what are the others that would be exposed as a letter t school takes account of well if the letter specifically asked for family back on in cultural ties the policy permits virtually anything to be identified as a diversity characteristic now in addition positions and you know which ones they really take account of and which ones they don't then leave background and cultural ties are mentioned in the letter what helps applicants get in as a diversity factor other than like you understand my question i do not i apologize to try and thought one thing that helps an applicant get in is if they're in one of the preferred racial or ethnic groups yes the theory of these letters is maybe there are other diversity characteristics besides a lot of sides having the right ethnic or racial i know that the discovery has been done what works besides a lot oh well i mean one of the interesting aspects of trial is that different reviewers looked at different things some reviewers would say well somebody traveled to minnesota one year that counts as a diversity characteristic other reviewers would look at that sounds like a hypothetical that was not illustrated by a real case was there anyone who got in because they went to minnesota example going to a foreign country and living there for a while for example was an additional diversity characteristic that they would consider working in public service was considered a diversity characteristic  i would i would think that that's correct your honor and that's of course the point is that white people are gay so white person who had formed a business or work in public service or spent time in a foreign country would not be able to supplement the application and person of one of the ethnic groups or racial groups that gets the letter would the idea that's correct your honor can i ask a question then related to that i'm looking at the letter and  this is a plus factor because of your minority status because of your race but before we automatically were just knowingly give you credit for that we need to know whether in fact you're going to  if you were admitted as a minority person at the diversity why doesn't that letter therefore implement a individualized judgment that grettir says needs to be made so that they aren't simply reacting to whether they're black or hispanic or asian first your honor the letter that you use the form letter but if you look at the actual letters that were sent to people they're a little different and they don't say insufficient we think regard to the form of the the letter y i think i'm still an interested in the answer my question if they decide to plus an african american as the hypothetical instance and they ask for supplemental information to know so they help them decide whether in picking that person plussing them on the basis of minority there is more information about them that w if they're trying to engage in a effort to create diversity and simply other than color in other words to create a minority representation but not do it just because somebody they can take into account to be selective amongst the univers to make sure they're advancing the purpose of the diversity program in the first instance first try again as i think it was clear that you could not answer the record at all and still get a very substantial plus on account excuse me not answering the letter at all and still get a very substantial plus i count a phrase and i would disagree i think your honor respectfully with the premise that you don't get a plus for what you get a plus to life for diversity characteristics that they may have not fine is not sending a letter to every one and the reason it matters is that a white could also show diversity characteristics like living in a foreign country in the letter so if you're going to send a letter great send it to everyone who's not in the certain admit or certain reject category or more i got a logic right yes never sending it to a white person never sending anything to a white person is the problem i'd like to focus for just a moment on the advantage that the school gave to asian american applicants the tenets go on in their brief a gret length about the virtues of these candidates and the other kinds of diversity that they bring to the school and we don't dispute that at all but it only shows that there was in fact a race neutral alternative with respect to these specific candidates that the law school never seriously considered that is to say to consider their non racial diversity and it seems clear that from the record that there would have been a significant number of asian americans in the school had they done so and no one ever cast the fly by the marginal increment and the proportion of asian americans in the school was necessary to achieve the compelling interest how we start something here and trying to figure out the relationship between something that came up and  that look similar we are recurring both and who gets a good category and who doesn't get a good category and i'm wondering whether that adarand analysis has any application or whether it just doesn't have any application because you don't need a past history of discrimination so you don't need a past history of discrimination what you do need is to seriously consider race neutral alternatives which suggests that if there was a group that could achieve the goal of diversity in the school without a racial preference you ought not to use your honors i would like to reserve the remainder of my time for a vital thank you for please the court my name is michael madden and i represent the university of washington law school in the individual defendants athletes in this matter i suspect i'm not going to get far before your questions start but i would like to to begin by but also one disputed that the university's policies and systems are not the paramount or hallmark requirements of narrow tailoring those being let me let me ask you a couple of questions that are more specific thank you and if you just give  you i had a couple of questions one was does the school take account of diversity factors other than blood oh yes and the district court finding the facts sixty the district court identified that or just found that the admissions dean said that she would not admit anyone who did not have one or more diversity factors these included race unusual life experiences foreign language skills geography post college work at the dance degrees disability achievements in athletics business for the military public service now granted that that's so and granted there are a bunch of people in the category who are not certain admits or certain redress correct path but in the middle where their mission may be affected by diversity characteristics i don't understand the justification for sending the letter only to people in certain racial groups that invites supplementation to explain diversity characteristics i have the same question it's good why would you need a letter whites can't get a plus anyway but it sounds like whites can get a plus so the letter would be pertinent and what's the justification for not sending it i think i think judge fisher had that as well  the directions on the application form i forget the exhibit number but it's in the record i invite applicants to set forth how in their view they believe that their presence would contribute to the diversity of the school they also ask in a separate block for applicants to identify at their rates now if the intent of the letter and this is what the district court found was if someone checked that they were of a minority race but gave no indication how that would enhance the diversity of the school and i think the suggestion in the record was this was particularly concerned with respect and they were americans but the letters were sent to african americans hispanics and people of other races so they didn't indicate in the text their essay how their background would contribute the school wanted to be cautious about giving a plots and so i think the point is here ok we're talking the finding doesn't say that that's right the point the point is you asked i'm saying what was the intent of the letter the intent of the letter was to make sure that the plus that would be awarded for how do we make sure that since the finding doesn't say that what you're saying is the intent of the letter is to take away racial pluses for people who aren't as diverse as the check mark in the box would look so you only need to send at the people who make the advantages check mark in the box so i couldn't find a finding  shortly the the other other point in this kind of relates to my second category of issue here a kind of directly is one of the things that that the plaintiffs pointed out is that it's impossible to show any demonstrably affect of the swatter in fact one of the things ironically that they complain about in their brief is not that people got the second chance and took advantage of it but that people got the second chance and either didn't respond at all or put in something that they characterized or we characterize as perfunctory and were admitted into one and soul the fact the matter if you go back to this in the entire situation and by the way it's only this method suggests that if he had the opportunity that was something else she would have added to her application because she had chosen a different focus in her essay contrary to what the instructions on the application were ok how do we know from this that this would have changed anything for ms smith the district court found that if race were totally eliminated as a factor in one thousand nine hundred four there would have been on the order of i believe one hundred forty two potential opened up and this is the sign the assumption using regression analysis that persons of color are going to get admitted at the same rate as whites with the same scores well there were at that point over one hundred  sixty people left on the admissions committee list these were people that were contemporaneously judged at the better qualified than this method who had been sent to the admissions committee referred in evaluated and on it on the waiting list in the event that there was rich people didn't accept the earlier offs in fact this turns out to be true also with respect to mr pile even if to a more extreme degree so we think you know regardless of what you think the letter  judge white flour was the good engineer right correct correct either neither being again or be having his work experience as an engineer before going to school counted as diversity factors that right well the the key factor that was identified in the review of his file was that he was not open about being gay he was a qualified candidate in fact in the subsequent year he was offered admission to the law school and rejected but the fact of the matter is he was in a group in his year where i think less than half of the applicants with his scores were admitted our expert calculated there would have been sixty four additional offers to whites if any racial preference was eliminated and there were one hundred sixty candidates remaining on the admissions committee list who were white candidates who had been contemporaneously judged to be more qualified than mr pile so it was that just so i understand the thrust of other candidates who were regardless of still very qualified correct and and because of how to how it would have been known how did they know that a thing well ranked according to their well because what we have done here is to say what happens if race is completely eliminated as a factor and not not just taking this little subcomponent of the letter about which piling smith wouldn't have gotten in any way by stringing those two things together i think it may have sounded that way but that's not what i intended when i meant to say with respect to the what's called the ethnicity  within and individual applicant files that are also in the in the record frankly i don't recall that there being a difference but i'm not going to say that there is it's the term that was used and the testimony was as to its purpose was as high as i have indicated that it was to make sure that an unwarranted plus was not given simply because it's just a case once the trial i want to read the book the right to find the testimony certainly in the record on that is from the swine hart who's the admissions coordinator for testimonies in the transcript and also  richmond was not trying to redress past discrimination because despite their history of discrimination against blacks there and been any alley it's there to discriminate against and i'm wondering whether the tailoring requirement in the school diversity cases has some analog that really struck me as it's easy to understand the affirmative action in favor of blacks but when i see affirmative action in favor of filipinos and then you've got this jewish girl from all those who's a refugee because the anti semites were beating iraq and she doesn't get any diversity  don't understand that it seems arbitrary what's the what's the diversity theory that made this narrow tailoring and not arbitrary let me let me respond to the second part of your question about jewish applicants from  although i think if you go to the same portion of the transcript and follow on where that example was used you'll see other examples of people of jewish ethnicity who had different backgrounds service in the israeli army is one that i recall  that comes to mind so this is not a question of saying gee we don't we don't consider persons of jewish ethnicity with interesting backgrounds we clearly do i'm assuming they don't get to swim in it against jews  like the quotas in the fifty's and sixty's and therefore but what i'm asking about is how come she doesn't get a diversity credit for these diverse characteristics when filipinos do your i think the question is to requires you to think to divide diversity credit from weighting against other applicants clearly not every asian i mean the vast majority of asians african americans native americans filipinos didn't get the an either whether all at perkins get a holistic consideration of all of their individual characteristics and the findings of the testimony here support that they did it and what what mr ross means example seems to say as well i can file through these these files and find a number of very interesting people who didn't get in who appear to have non racial diversity characteristics and we come back and find people with similar characteristics who did get in and and what's the point the point really has to go back to the argument about giving a plus two eight to persons of asian at the city is the flaw what i'm asking you is does there have to be any sort of rationality any anything that you might characterize as narrow tailoring to produce the educational benefits of diversity or anything else to what ethnic groups get pluses minorities are other than asians to science than the flaw in the plainest position is that there are swimming that the asians who would have been admitted based on good grades and test scores are the same as the lower scoring agents who were admitted based on diversity characteristics in the testimony in the record is to the contrary that the law school went out and looked for people who were fluent in asian languages and  english as a second language who were interested in asian line tickler who perhaps were recent immigrants to the united states seattle has a huge population of southeast asian immigrants so to say this is quite a sort of out helping an asian cases use them together the michigan cases this case of going along together as the big challenges to the overall issue of can you use race in admissions and if so how this case came up here  standpoint like a large issue and i just want to point out the magnitude of it by way of background on this asian preference issue asians were about fifteen and a half percent of the applicant pool during the years in question they were fifteen percent of the admin and fourteen percent of the students are expert calculated that if asians have been emitted at the same rate at the same score level as whites that the school would have enrolled using the same yield rates as their call about ten percent of its classes asians and the year in question that amounts to thirteen fewer students over the three years in question seven of them in one nine hundred ninety four which was a year that had a higher percentage of minority applicants than the other years and the effect on the plaintiffs this is vanishing i mean this really is a very carefully calibrated system the associate dean of the school testified that they looked constantly to see that they were getting the plus to asian students whose backgrounds that the academic goals of the school which are somewhat unique and on asian long plaintiffs argument that ten percent is enough misses the point the point forefront of action in this context is to bring in people of different backgrounds not to go find the smartest highest scoring asians that you can and that them to your school even if they happen to all have similar backgrounds be well established have gone to the same schools point of diversity is to seek out people that are that are different and the record doesn't take into those of that's based on the applications that were actually filed nobody put in any analysis about what would have happened had this letter gone out to whites as well as minorities the other thing i like to point out is that the preference for asian americans finding eighty two f was a racial preference now of course think did give preferences for people who should other kinds of diversity but it was also a racial preference we have no objection to other kinds of diversity being given up plus it is the racial preference that concerns us and why we believe that for the reasons that mr ban said that there would be a significant percentage of asian americans in the institution even without a racial plus honor that it wasn't necessary to achieve the compelling interest of diversity that's what i was trying to say and i would like to just go over this question of whether or not my client would have been admitted and there's t important points i want to make first that we were in puddle two nominal damages under this court's decision in his state of muscular us and separately under title six even if what mr madden is saying was true and second we asked for a jury on that very issue the question of causation we were entitled to a jury and we were denied it we asked for a jury on all issues related to damages incurred you don't need to go past judge billy's own earlier decision conclude this question the same decision question is in fact related to damages incurred jutsu he said important factors in determining damages would include whether the rejected applicant would have been admitted but for the response well probably cite the case of kronos versus eighty x six twelve ne second to eighty nine which describes the difference between court damages and contract images when you're talking about nominal damages and other kinds of damages normally associated with contract i would also like to point out the judge really did not file any conclusions of law so we don't know whether the burden shifting mechanism of now healthy was followed defendants at some point are supposed to bear the burden of showing what would have happened there is no conclusion of law whatsoever in judge village opinion which suggests that it was placed upon them now on this specific issues we've identified in our brief   riley of different reasons why we think under any circumstances judge really was wrong not only for not having given us a jury but for the decision themselves the most important of which are the state dependents own expert and defendant cover himself