The legal team: John Payton

By Katie Gazella

Almost six years ago, when the first admissions lawsuit was filed against U-M, attorney John Payton began working on the case.  He has been there
every step of the way, from the earliest motions to the day he walked up the steps of the Supreme Court and argued the importance of classroom diversity. 

Attorney John Payton rehearses his defense of the
undergraduate case during a "moot court" practice session
held prior to the April 1 appearance before the Supreme Court.  Payton
was the lead attorney in the LSA case.(Photo by Marcia Ledford,
U-M Photo Services)

It has been a long journey.  From the beginning, Payton says, he understood
the potentially far-reaching and historic impacts of the lawsuits.  He
was the lead counsel on the undergraduate case from the very beginning
to the Supreme Court, and for the Law School case until Maureen Mahoney
became lead counsel and argued that case before the Supreme Court.  Along
the way, Payton handled every major argument, including his defense of
both cases before the 6th U.S. Circuit Court of Appeals. 

Now that the highest court in the land has made its decision, he says, the significance of the cases cannot be overstated. " All selective higher education
institutions will be affected," says Payton, who was the lead attorney in the undergraduate case,
Gratz, et al.  v. Bollinger, et al. 

Payton, a partner with the firm Wilmer, Cutler & Pickering in Washington, D.C., has served on numerous boards and is the immediate past president
of the District of Columbia Bar after serving as its president until last June.  He came to the U-M lawsuits with a history of work on other civil rights
cases and is considered one of the nation's leading civil rights attorneys. 

During his first year as a student at Harvard Law School, he wrote briefs defending some of the Native Americans charged with crimes related to
the American Indian Movement as they seized control of Wounded Knee in protest of the reservation's officially sanctioned government.  He later worked on
a case in which the NAACP challenged an earlier ruling that favored white merchants; the merchants had sued under antitrust laws in Mississippi after
they claimed they had been harmed by an NAACP boycott.  The NAACP ultimately won the case in the Supreme Court when the court ruled the
NAACP members' activities were entitled to the protection of the First Amendment and that they were not liable in damages for the consequences of their
nonviolent, protected activity. 

Payton also represented the city of Richmond, Va., before the Supreme Court in
Richmond v. J.A. Croson Co., defending the city's plan to give more
construction contracts to minority businesses.  The court ruled against the city. 

Throughout his six years of work on the U-M cases, Payton has defended the use of race as one factor in the admissions process, and he has made
this argument in courtrooms and at panel discussions.  He notes that while U-M's admissions process differs from that of other universities in some ways,
officials from many universities agree that race must be a factor. 

"There are hundreds of selective universities that take race into account," he says. " All of them say if they didn't take race into account, they
wouldn't have a diverse student body." 

He points to the situation at the University of Texas as an example of an admissions policy that doesn't work well.  After a federal appeals court
effectively dismantled affirmative action at the university in 1996 in the Hopwood case, a new state law guaranteed admission to the public university of
their choice to students in the top 10 percent of their high school class. 

"The school has changed so dramatically, it's unrecognizable," he says, noting that it has had a huge increase in enrollment due to the new policy. 
With such across-the-board admissions policies, he says, "you may or may not have a more diverse student body." 

In his argument before the Supreme Court, he said many students come to U-M from segregated backgrounds.  Students benefit when there is a
critical mass of minority students, he told justices. 

Colleagues praised his work on the University's brief and his appearance at the Supreme Court.  Maureen Mahoney, the lead attorney for the Law
School case and a veteran of 12 Supreme Court cases, commended Payton for his work on the cases through the years. 

"He has been a mainstay of this case from day one," Mahoney says.  Before the Supreme Court, she says, "he performed brilliantly."