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2012 Section 1: Moot Court: Fisher v. University of Texas at Austin Institute of Bill of Rights Law at the William & Mary Law School

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Copyright c 2012 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/preview I. Moot Court: Fisher v. University of Texas at Austin

In This Section:

New Case: 11-345 Fisher v. University of Texas p. 2

Synopsis and Questions Presented p.2

"J USTlCES TAKE UP RACE AS A FACTOR IN COLLEGE ENTRY" p.20 Adam Liptak

"IN FISHER V. TEXAS, LOOK AT THE POLITICS" p.23 Ian Haney-Lopez

"THE FUTURE OF AFFIRMATIVE ACTION: KENNEDY IS THE KEY" p.24 Stephen Menendian

"OBAMA LAWYERS URGE HIGH COURT TO BACK AFFIRMATIVE ACTION" p.27 Greg Stohr

"THE NEXT BIG AFFIRMATIVE-AcTION CASE" p.29 Richard Kahlenberg

"ASIANS AND AFFIRMATIVE ACTION" p.31 Scott Jaschik

"U. OF TEXAS AIMS AT SUPREME COURT'S LIKELY SWING VOTE IN p. 35 DEFENDING RACE-CONSCIOUS ADMISSIONS" Peter Schmidt

1 Fisher v. University of Texas at Alistin

11-345

Ruling Below: Fisher v. University of Texas at A1fstin, 631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S.Ct. 1536 (2012).

Abigail Fisher and Rachel Michalewicz, both Texas residents, were denied undergraduate admission to the University of Texas at Austin for the class entering in Fall 2008. They filed this suit alleging that UT's admissions policies discriminated against them on the basis of race in violation of their right to equal protection under the Fourteenth Amendment and federal civil rights statutes. They sought damages as well as injunctive and declaratory relief. Proceeding with separate phases of liability and remedy, the district court found no liability and granted summary judgment to the University. Applicants appealed.

Question Presented: Whether the Supreme Court's decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, permit the University of Texas at Austin's use of race in undergraduate admissions decisions.

Abigail Noel FISHER; Rachel Multer Michalewicz, Plaintiffs-Appellants, v. UNIVERSITY OF TEXAS AT AUSTIN; David B. Pryor, Executive Vice Chancellor for Academic Affairs in His Official Capacity; William Powers, Jr., President of the University of Texas at Austin in His Official Capacity; Board of Regents of the University of Texas System; R. Steven Hicks, as Member of the Board of Regents in His Official Capacity; William Eugene Powell, as Member of the Board of Regents in His Official Capacity; James R. Huffines, as Member of the Board of Regents in His Official Capacity; Janiece Longoria, as Member of the Board of Regents in Her Official Capacity; Colleen McHugh, as Member of the Board of Regents in Her Official Capacity; Robert L. Stillwell, as Member of the Board of Regents in His Official Capacity; James D. Dannenbaum, as Member of the Board of Regents in His Official Capacity; Paul Foster, as Member of the Board of Regents in His Official Capacity; Printice L. Gary, as Member of the Board of Regents in His Official Capacity; Kedra Ishop, Vice Provost and Director of Undergraduate Admissions in Her Official Capacity; Francisco G. Cigarroa, M.D., Interim Chancellor of the University of Texas System in His Official Capacity, Defendants­ Appellees.

United States Comt of Appeals for the Fifth Circuit

Decided January 18,2011

[Excerpt: Some footnotes and citations omitted.]

HIGGINBOTHAM, Circuit Judge We consider a challenge to the use of race in undergraduate admissions at the University

2 of Texas at Austin. While the University has Justice Powell, who wrote separately in confined its explicit use of race to the Regents of the University of California v. elements of a program approved by the Bakke. This vision of diversity encompassed Supreme Court in Grzttter v. Bollinger, UT's a broad array of qualifications and program acts upon a university applicant characteristics where race was a single but pool shaped by a legislatively-mandated impoliant element. The Michigan Law parallel diversity initiative that guarantees School designed its admissions program to admission to Texas students in the top ten achieve this broad diversity, selecting percent of their high school class. The ever­ students with varied backgrounds and increasing number of minorities gaining experiences-including varied racial admission under this Top Ten Percent Law backgrounds-who would respect and learn casts a shadow on the horizon to the from one another. The Court explained: otherwise-plain legality of the Grzttter-like admissions program, the Law's own legal [The Law School's] policy makes clear there footing aside. While the Law's ultimate fate are many possible bases for diversity is not the fare of this suit, the challenge to admissions, and provides examples of the Grzttfer plan here rests upon the intimate admittees who have lived or traveled widely ties and ultimate confluence of the two abroad, are fluent in several languages, have mItIatIves. Today we affirm the overcome personal adversity and family constitutionality of the University's program hardship, have exceptional records of as it existed when Appellants applied and extensive community service, and have had were denied admission. successful careers in other fields.

Abigail Fisher and Rachel Michalewicz, The Law School's policy also reaffirmed its both Texas residents, were denied "longstanding commitment" to "one undergraduate admission to the University particular type of diversity, that is, racial and of Texas at Austin for the class entering in ethnic diversity with special reference to the Fall 2008. They filed this suit alleging that inclusion of students from groups which UT's admissions policies discriminated have been historically discriminated against, against them on the basis of race in violation like African-Americans, Hispanics and of their right to equal protection under the Native Americans, who without this Fourteenth Amendment and federal civil commitment might not be represented in rights statutes. They sought damages as well [the] student body in meaningful numbers." as Injunctive and declaratory relief. Proceeding with separate phases of liability In an effort to ensure representation of and remedy, the district court, in a minorities, the Law School sought to enroll thoughtful opinion, found no liability and a "critical mass" of minority students, which granted summary judgment to the would result in increased minority University. engagement in the classroom and enhanced minority contributions to the character of the I. GRUTTER V. BOLLINGER School. The Grutter Court endorsed this goal, holding that diversity, including A. seeking a critical mass of minority students, is "a compelling state interest that can Grzttter embraced the diversity interest justify the use of race in university atiiculated twenty-five years earlier by admissions."

3 high school and struggled paycheck to B. paycheck and a minority child of a successful cardiovascular surgeon may both Recognizing the pursuit of diversity, claim adversity, but the personal hurdles including racial diversity, to be a compelling each has cleared will not be seen to be of the interest in higher education, Grutter same height. endorsed the right of public universities to increase enrollment of underrepresented C. minorities. Grutter also cautioned that, while it accepted diversity as a compelling Finally, Grutter reqmres that any race­ interest, any sorting of persons on the basis conscious measures must have a "logical of race must be by measures narrowly end point" and be "limited in time." This tailored to the interest at stake. durational requirement can be satisfied by sunset provisions or by periodic reviews to As we read the Court, a university reconsider whether there are feasible race­ admissions program is nalTowly tailored neutral alternatives that would achieve only if it allows for individualized diversity interests "'about as well. ,,, In this consideration of applicants of all races. Such respect, Grutter is best seen not as an consideration does not define an applicant unqualified endorsement of racial by race but instead ensures that she is valued preferences, but as a transient response to for all her unique attributes. Rather than anemic academic diversity. As Justice applying fixed stereotypes of ways that race O'Connor observed, "We expect that 25 affects students' lives, an admissions policy years from now, the use of racial preferences must be "'flexible enough to consider all will no longer be necessary to further the peliinent elements of diversity in light of the interest approved today." particular qualifications of each applicant. '" As the Supreme Court later summarized, II. THE CHALLENGED POLICY "The entire gist of the analysis in Grutter was that the admissions program at issue A. there focused on each applicant as an individual, and not simply as a member of a UT is a public institution of higher particular racial group." Thus, a university education, authorized by the Texas admissions policy is more likely to be Constitution and supported by state and narrowly tailored if it contemplates that a federal funding. Accordingly, it begins its broad range of qualities and experiences admissions process by dividing applicants beyond race will be impOliant contributions into three pools: (1) Texas residents, (2) to diversity and as such are appropriately domestic non-Texas residents, and (3) considered in admissions decisions. international students. Students compete for admission only against other students in Both Bakke and Gratz finnly rejected group their respective pool. Texas residents are treatment, insisting that the focus be upon allotted 90% of all available seats, with individuals and that an applicant's admission based on a two-tiered system, achievements be judged in the context of beginning with students automatically one's personal circumstances, of which race admitted under the Top Ten Percent Law is only a part. So deployed, a white applicant and then filling the remaining seats on the raised by a single parent who did not attend basis of the Academic and Personal

4 Achievement Indices. Because Appellants order to provide the fullest possible are Texas residents, their challenge focuses understanding of the student as a person and on the admissions procedures applied to in­ to place his or her achievements in context. state applicants. Race is considered as part of the applicant's context whether or not the applicant belongs Texas applicants are divided into two to a minority group, and so-at least in subgroups: (l) Texas residents who are in theory-it "can positively impact applicants the top ten percent of their high school class of all races, including Caucasian[s], or [it] and (2) those Texas residents who are not. may have no impact whatsoever." Top ten percent applicants are guaranteed Moreover, given the mechanics of UT's admission to the University, and the vast admissions process, race has the potential to majority of freshmen are selected in this influence only a small part of the applicant's way, without a confessed consideration of overall admissions score. The sole instance race. when race is considered is as one element of the personal achievement score, which itself The remaining Texas applicants, who were is only a part of the total PAL not within the top ten percent of their high school graduating class, compete for B. admission based on their Academic and Personal Achievement Indices. The Although the process for calculating AI and Academic Index is the mechanical formula P AI scores is common to all parts of the that predicts freshman OPA using University, each offer of admission to UT is standardized test scores and high school ultimately tied to an individual school or class rank. Some applicants' AI scores are major. Texas residents in the top ten percent high enough that they receive admission of their high school class are guaranteed based on that score alone. Others are low admission to the University, but they are not enough that their applications are considered assured admission to the individual school presumptively denied. or program of their choice.

The Personal Achievement Index is based Top Ten Percent Law applicants who do not on three scores: one score for each of the receive automatic entry to their first choice two required essays and a third score, called program compete for admission to the the personal achievement score, which remaining spaces, and if necessary to their represents an evaluation of the applicant's second-choice program, on the basis of their entire file. The essays are each given a score AI and PAl scores. The admissions office between 1 and 6 through "a holistic places students into matrices for each evaluation of the essay as a piece of writing preferred school or major, with students based on its complexity of thought, grouped by AI score along one axis and PAl substantiality of development, and facility score along the other axis. Liaisons for the with language." majors then establish a cutoff line, which is drawn in a stair-step pattern. Applicants None of the elements of the personal denied admission to their first-choice achievement score-including race-are program are considered for their second considered individually or given separate choice, with cutoff lines readjusted to reflect numerical values to be added together. the influx of those applicants. Any top ten Rather, the file is evaluated as a whole in percent applicants not admitted to either

5 their first- or second-choice program are underrepresented minorities is necessary to automatically admitted as Liberal Arts further its compelling interest in securing the Undeclared majors. All other applicants not educational benefits of a diverse student yet admitted to UT compete, again body." according to AI and PAl scores, for any remaInIng seats in the Liberal Arts III. STANDARD OF REVIEW Undeclared program. A. c. Judicial deference to a university'S academic The Academic Index and Personal decisions rests on two independent Achievement Index now employed by UT foundations. First, these decisions are a have been in continuous use since 1997. The product of "complex educational jUdgments lone substantive change came in 2005, in an area that lies primarily within the following the Grutter decision, when the expertise of the university," far outside the Board of Regents authorized the experience of the courts. Second, consideration of race as another "special "universities occupy a special niche in our circumstance" in assessing an applicant's constitutional tradition," with educational personal achievement score. autonomy grounded in the First Amendment. As Justice Powell explained in Race-like all other elements of UT's Bakke, "[a]cademic freedom ... includes [a holistic review-is not considered alone. university's] selection of its student body." Admissions officers reVieWIng each application are aware of the applicant's race, Yet the scrutiny triggered by racial but UT does not monitor the aggregate racial classification "is no less strict for taking into composition of the admitted applicant pool account" the special circumstances of higher during the process. The admissions decision education. "[S]trict scrutiny is designed to for any particular applicant is not affected­ provide a framework for carefully positively or negatively-by the number of examining the impOliance and the sincerity other students in her racial group who have of the reasons advanced by the been admitted during that year. governmental decisionmaker for the use of race in [a] particular context." Narrow D. tailoring, a component of strict scrutiny, requires any use of racial classifications to The district court found that both the UT and so closely fit a compelling goal as to remove Grutter policies "attempt to promote 'cross­ the possibility that the motive for the racial understanding, ' 'break down racial classification was illegitimate racial stereotypes,' enable students to better stereotype. Rather than second-guess the understand persons of other races, better merits of the University'S decision, a task prepare students to function in a multi­ we are ill-equipped to perform, we instead cultural workforce, cultivate the next set of scrutinize the University'S decisionmaking national leaders, and prevent minority process to ensure that its decision to adopt a students from serving as 'spokespersons' for race-conscious admissions policy followed their race." Like the law school in Grutter, from the good faith consideration Grutter UT "has determined, based on its experience requires. We presume the University acted and expertise, that a 'critical mass' of in good faith, a presumption Appellants are

6 free to rebut. Relatedly, while we focus on school districts' programs because they the University's decision to adopt a GYlItter­ pursued racial balancing and defined like plan, admissions outcomes remain students based on racial group relevant evidence of the plan's necessity-a classifications, not on individual reality check. circumstances.

B. In short, the Court has not retreated from Gnttter's mode of analysis, one tailored to With a nod to GYlItfer's command that we holistic university admissions programs. generally give a degree of deference to a Thus, we apply strict scrutiny to race­ university's educational judgments, conSCIOUS admissions policies in higher Appellants urge that Grutter did not extend education, mindful of a university'S such deference to a university's decision to academic freedom and the complex implement a race-conscious admissions educational judgments made when policy. Instead, they maintain Gruffer assembling a broadly diverse student body. deferred only to the university's judgment that diversity would have educational c. benefits, not to the assessment of whether the university has attained critical mass of a Appellants do not allege that UI's race­ racial group or whether race-conscious conscious admissions policy is functionally effOlis are necessary to achieve that end. different from, or gives greater consideration to race than, the policy upheld in Grutter. As an initial matter, this argument in its full Rather, Appellants question whether UT flower is contradicted by GYlItter. The needs a GYlItter-like policy. As their majority held that, like the examination into argument goes, the University'S race­ whether the University has a compelling conscious admissions program IS interest, "the narrow-tailoring inquiry . . . unwarranted because (1) UT has gone must be calibrated to fit the distinct issues beyond a mere interest in diversity for raised by the use of race to achieve student education's sake and instead pursues a racial body diversity in public higher education." composition that mirrors that of the state of That is, the narrow-tailoring inquiry-like Texas as a whole, amounting to an the compelling-interest inquiry-is unconstitutional attempt to achieve "racial undertaken with a degree of deference to the balancing"; (2) the University has not given University's constitutionally protected, adequate consideration to available "race­ presumably expert academic judgment. neutral" alternatives, particularly percentage plans like the Top Ten Percent Law; and (3) Parents Involved in Comm1fnity Schools v. UI's minority enrollment under the Top Ten Seattle School District No. 1 further Percent Law already surpassed critical mass, supports this understanding. The Parents such that the additional (and allegedly Involved COUli never suggested that the "minimal") increase in diversity achieved school districts would be required to prove through UI's GYlItter-like policy does not their plans were meticulously supported by justify its use of race-conscious measures. some patiicular quantum of specific We will consider each of these arguments in evidence. Rather, the COUli struck down the turn.

7 IV. RACIAL BALANCING 1.

A. The district court expressly found that race can enhance the personal achievement score UT's system was modeled after the Grutter of a student from any racial background, program, which the Supreme Court held was including whites and Asian-Americans. not a quota. UT has never established a This possibility is the point of Grutter's specific number, percentage, or range of holistic and individualized assessments, minority enrollment that would constitute which must be "'flexible enough to consider "critical mass," nor does it award any fixed all pertinent elements of diversity in light of number of points to minority students in a the particular qualifications of each way that impermissibly values race for its applicant. '" Indeed, just as in Gruffer, UT own sake. applicants of every race may submit supplemental information to highlight their Further, there is no indication that UT's potential diversity contributions, which Grutter-like plan is a quota by another allows students who are diverse in name. It is hue that UT looks in part to the unconventional ways to describe their number of minority students when unique attributes. evaluating whether it has yet achieved a critical mass, but "[s]ome attention to The summary judgment record shows that numbers, without more, does not transform a demographics are not consulted as part of flexible admissions system into a rigid any individual admissions decision, and quota." Whereas a quota imposes a fixed UT's admissions procedures do not treat percentage standard that cannot be deviated certain racial groups or minontIes from, a permissible diversity goal differently than others when reviewing "'require[s] only a good-faith effort ... to individual applications. Rather, the act of come within a range demarcated by the goal considering minority group demographics itself. '" Indeed, UT's policy improves upon (to which Appellants object) took place only the program approved in Grutter because the when the University first studied whether a University does not keep an ongoing tally of race-conscious admissions program was the racial composition of the entering class needed to attain critical mass. Appellants' during its admissions process. objection therefore must be directed not to the design of the program, but rather to B. whether UT's decision to reintroduce race as a factor in admissions was made in good Appellants nevertheless argue that UT's faith. program amounts to racial balancing because it supposedly evinces a special 2. concern or demographically underrepresented groups, while neglecting Appellants contend that UT revealed its true the diverse contributions of others. These motive to be outright racial balancing when arguments do not account for the operation it referenced state population data to justify of UT's admissions system or the scope of the adoption of race-conscious admissions the diversity interest approved by the Court measures. They insist that if UT were truly in Grutter. focused on educational benefits and critical

8 mass, then there should be no reason to that level of minority enrollment necessary consult demographic data when determining to ensure that minority students participate whether UT had sufficient minority in the classroom and do not feel isolated. representation. While Appellants' view may comport with one literal interpretation of the "critical We disagree. The University's policies and mass" label, it is not the view that prevailed measured attention to the community it in Grutter. The Grutter majority defined serves are consonant with the educational critical mass "by reference to the goals outlined in Grutter and do not suppOli educational benefits that diversity is a finding that the University was engaged in designed to produce," and the educational improper racial balancing during our time benefits recognized in Grutter go beyond the frame of review. Both Grutter and Bakke narrow "pedagogical concept" urged by recognized that "there is of course 'some Appellants. On this understanding, there is relationship between numbers and achieving no reason to assume that critical mass will or the benefits to be derived from a diverse should be the same for every racial group or student body. '" In its policymaking process, every university. We are persuaded, as was UT gave appropriate attention to those the district court, that the University adhered educational benefits identified in Grutter to Grutter when it reintroduced race into its without overstepping any constitutional admissions process based in part on an bounds. analysis that devoted special attention to those minorities which were most Grutter's structure accepts that a significantly underrepresented on its university's twin objectives of rewarding campus. academic merit and fostering diversity can be complementary rather than competing V. THE TOP TEN PERCENT LAW goals; that students rising to the top of underrepresented groups demonstrate The parties devote significant attention to promise as future leaders. These students' the Top Ten Percent Law. Since the Law relative success in the face of harmful and was first enacted in 1997, UT has seen widespread stereotypes evidences a degree increases in both African-American and of drive, determination, and merit not Hispanic enrollment, but again, changing captured by test scores alone. Insofar as demographics and other minority outreach Appellants complain that the University's programs render it difficult to quantify the limited attention to demographics was increases attributable to the Top Ten Percent inconsistent with the legitimate educational Law. concerns recognized in Bakke and Grutter, we conclude that their contention cannot be Appellants put forward the Top Ten Percent sustained. Law as a facially race-neutral alternative that would allow UT to obtain a critical 3. mass of minority enrollment without resorting to race-conscious admissions. As Appellants argue that a broad approach to the argument goes, if the Top Ten Percent educational diversity is improper because Law were able to serve the University's "critical mass" must be an "inward-facing interests "about as well" as race-conscious concept ... that focuses on the functioning admissions, without differentiating between of the student body," encompassing only students on the basis of race, then it would

9 render UT's current admissions program was neither warranted nor constitutional. unconstitutional. UT responds that the Top Appellants claim the best measure of Ten Percent Law does not constitute a whether UT had attained the benefits of workable alternative to a flexible admissions diversity is the raw percentage minorities system, and so it is "entirely irrelevant" as a enrolled. As a result of the combined effects matter of law in determining whether or not of changing demographics, targeted high a university may adopt the holistic school programs, and the Top Ten Percent consideration of race to achieve critical Law, total minority enrollment had mass. increased over the years. When the decision was made to reintroduce race-conscious UT is correct that so-called "percentage admissions in 2004, underrepresented plans" are not a constitutionally mandated minorities made up 21.4% of the incoming replacement for race-conscious admissions class. programs under Gmtter, although-as will become apparent-this realization alone Although Texas was not constitutionally does not end our constitutional inquiry. The required to enact the Top Ten Percent Law, idea of percentage plans as a viable Appellants are correct that the decision to do alternative to race-conscious admissions so-and the substantial effect on aggregate policies was directly advocated to the minority enrollment at the University­ Gmtter Court by the United States, arguing places at risk UT's race-conscious as amic1Is curiae. In response, the Court admissions policies. We are confident, and held that although percentage plans may be hold, that a Gmtter-style admissions system a race-neutral means of increasing minority standing alone is constitutional. That said, enrollment, they are not a workable whether to overlay such a plan with the Top alternative-at least in a constitutionally Ten Percent Law and how to calibrate its significant sense-because "they may flow presents a Hobson's choice between preclude the university from conducting the the minority students it contributes and the individualized assessments necessary to test of constitutional bounds it courts. True assemble a student body that is not just enough, the Top Ten Percent Law is in a racially diverse, but diverse along all the sense, perhaps a controlling sense, a qualities valued by the university." In "facially" race-neutral plan. But it was addition, the Com1 emphasized existing animated by effo11s to increase minority percentage plans-including UT's-are enrollment, and to the extent it succeeds it is simply not "capable of producing a critical because at key points it proxies for race. mass without forcing [universities] to abandon the academic selectivity that is the A. cornerstone of [their] educational mission." Appellants propose various baseline levels VI. CRITICAL MASS of diversity which, they suggest, would fully satisfy the University's interest in attaining Appellants contend that UT's decision to critical mass. They first argue that if "from reintroduce race-conscious admissions was 13.5 to 20.1 percent" minority enrollment unconstitutional because minority was adjudged to be great enough diversity enrollment already met or exceeded "critical each year by Michigan's Law School in mass" when this decision was made, and Gmtter, then the 21.4% minority enrollment thus any further facial consideration of race that UT had achieved prior to reintroducing

10 race-conscious admissions must already students. We cannot assume that diversity have achieved critical mass. We find this levels immediately before Hopwood were comparison inapt for numerous reasons. indicative of critical mass. Moreover, minority enrollment in 1996 is not indicative Appellants' comparison presumes that of UT's true pre-Hopwood diversity. While critical mass must have some fixed upper admissions decisions in 1996 were not bound that applies across different schools, controlled by Hopwood, the case impacted different degrees, different states, different enrollment, resulting in fewer minority years, different class sizes, and different students. If one instead compares minority racial and ethnic subcomposition. It is based enrollment from 1989 to 2004, a different on Appellants' continued insistence that the picture emerges. In 2004, UT enrolled concept of critical mass is defined by the significantly fewer African-Americans than minimum threshold for minority students to it had in 1989 (309 compared to 380). The have their ideas represented in class decrease in classroom diversity will only discussions and not to feel isolated or like continue if additional minority spokespersons for their race. As we have representation is not achieved, as the discussed, Gruffer firmly rejects that University plans to increase its number of premise and defines critical mass by course offerings in future years. Finally, reference to a broader view of diversity. whatever levels of minority enrollment sufficed more than a decade ago may no Appellants point to the Supreme Court's longer constitute critical mass today, given observation in United States v. Virginia that the social changes Texas has undergone the Virginia Military Institute "could during the intervening years. Appellants' achieve at least 10% female enrollment-a proposed baselines are insufficient reason to sufficient critical mass to provide the female doubt UT's considered, good faith cadets with a positive educational conclusion that "the University still has not experience." But this figure, even if reached a critical mass at the classroom accurate, covers only one component of the level. " multi-faceted concept of diversity elaborated in Gruffer. In any event, the claim that 10% Grutter pointedly refused to tie the concept minority enrollment is a ceiling to critical of "critical mass" to any fixed number. The mass is confounded by Grutter. Gmtter Court approved of the University of Michigan Law School's goal of attaining Appellants lastly note that minority critical mass even though the school had enrollment at UT now exceeds the level it specifically abjured any numerical target. had reached in the mid-1990s, pre­ The type of broad diversity Grutter Hopwood, when the University was free to approved does not lend itself to any fixed obtain any critical mass it wanted through numerical guideposts. overtly race-based decisions. UT responds that it has consistently maintained, both in B. the 2004 Proposal and before this Court, that even before Hopwood it had never As we have observed, benchmarks aside, reached critical mass. While UT was making UT's claim that it has not yet achieved a greater use of race in that era, its pursuit of critical mass is less convincing when viewed diversity was constrained by other interests, against the backdrop of the Top Ten Percent such as admitting only well-qualified Law, which had already driven aggregate

11 minority enrollment up to more than one­ was unwarranted. Pointing to the Supreme fifth of the University's incoming freshman Court's recent decision in Parents Involved, class before less subtle race-conscious they argue that the University's use of race admissions were reintroduced. is unnecessary, and therefore not narrowly tailored, because it has only a "minimal The chief difficulty with looking to effect." The district court thought this was aggregate minority enrollment is that it an attempt "to force UT into an impossible lumps together distinct minority groups catch-22: on the one hand, it is well­ from different backgrounds who may bring established that to be narrowly tailored the various uniqlle contributions to the means 'must be specifically and narrowly University environment. In Parents framed to accomplish' the compelling Involved, the Supreme Court specifically interest, but on the other hand, according to faulted two school districts for employing [Appellants], the 'narrowly tailored' plan "only a limited notion of diversity" that must have more than a minimal effect." lumped together very different racial groups. One school district classified students Parents Involved does not support the cost­ exclusively as "white" or "nonwhite"; benefit analysis that Appellants seek to another labeled them as "black" or "other." invoke. Rather, Parents Involved was This "binary conception of race" runs primarily a critique of the school districts' headlong into the central teaching of Gmtter "extreme approach" that used binary racial and other precedents which instruct that a categories to classify schoolchildren. The university must give serious and flexible Court referred to the "minimal effect" consideration to all aspects of diversity. sought by this policy as evidence that other, more narrowly tailored means would be On this record, we must conclude that the effective to serve the school districts' University has acted with appropriate interests. The Court did not hold that a sensitivity to these distinctions. Although Gmtter-like system would be impermissible the aggregate number of underrepresented even after race-neutral alternatives have minorities may be large, the enrollment been exhausted because the gains are small. statistics for individual groups when UT To the contrary, Justice Kennedy-who decided to reintroduce race as a factor in provided the fifth vote in Parents admissions decisions does not indicate Involved-wrote separately to clarify that "a critical mass was achieved. Further, we more nuanced, individual evaluation . . . recognize that some year-to-year fluctuation informed by Gmtter" would be permissible, in enrollment numbers is inevitable, so even for the small gains sought by the statistics from any single year lack probative school districts. force; the University needs to maintain critical mass in years when yield is low just VIII. CONCLUSION as it does when yield is high. Mindful of the time frame of this case, we c. cannot say that under the circumstances before us UT breached its obligation to Appellants argue that even if UT had not yet undertake a "serious, good faith achieved critical mass under race-neutral consideration" before resorting to race­ policies, it had come close enough that the conscious measures; yet we speak with reintroduction of race-conscious measures caution. In this dynamic environment, our

12 conclusions should not be taken to mean that Finally, it is neither our role nor purpose to UT is immune from its obligation to dance from Grutter's firm holding that recalibrate its dual systems of admissions as diversity is an interest supporting needed, and we cannot bless the university's compelling necessity. Nor are we inclined to race-conscious admissions program in do so. The role of black athletes in the perpetuity. Rather, much like judicial southern universtttes forty years ago approval of a state's redistricting of voter presents diversity's potential better than can districts, it is good only until the next census we, although at that early juncture, it was count-it is more a process than a fixed ability overcoming a barrier of race. structure that we review. The University'S formal and informal review processes will The judgment of the district court is confront the stark fact that the Top Ten AFFIRMED. Percent Law, although soon to be restricted to 75% of the incoming class, increasingly KING, Circuit Judge, specially places at risk the use of race in admissions. concurring: In 1998, those admitted under the Top Ten Percent Law accounted for 41 % of the I concur in the judgment and in the analysis Texas residents in the freshman class, while and application of Grutter in Judge in 2008, top ten percent students comprised Higginbotham's opmlOn. No party 81 % of enrolled Texan freshmen. This challenged, in the district court or in this trajectory evidences a risk of eroding the couti, the validity or the wisdom of the Top necessity of using race to achieve critical Ten Percent Law. We have no briefing on mass with accents that may, if persisted in, those subjects, and the district court did not increasingly present as an effoti to meet consider them. Accordingly, I decline to join quantitative goals drawn from the Judge Higginbotham's opinion insofar as it demographics of race and a defiance of the addresses those subjects. now-demanded focus upon individuals when considering race. GARZA, Circuit Judge, specially concurring: A university may decide to pursue the goal of a diverse student body, and it may do so Today, we follow Grutter's lead in finding to the extent it ties that goal to the that the University of Texas's race­ educational benefits that flow from conscious admissions program satisfies the diversity. The admissions procedures that Couti's unique application of strict scrutiny UT adopted, modeled after the plan in the university admissions context. I approved by the Supreme Court in Gruffer, concur in the majority opinion, because, are narrowly tailored-procedures in some despite my belief that Gruffer represents a respects superior to the Grufter plan because digression in the course of constitutional the University does not keep a running tally law, today's opinion is a faithful, if of underrepresented minority representation unfortunate, application of that misstep. The during the admissions process. We are Supreme Court has chosen this erroneous satisfied that the University'S decision to path and only the Couti can rectify the error. reintroduce race-conscious admissions was In the meantime, I write separately to adequately supported by the "serious, good underscore this detour from constitutional faith consideration" required by Grutter. first principles.

13 I. Comi found that the policy goals offered were insufficiently compelling to justify The Equal Protection Clause of the discrimination based on race. Fourteenth Amendment provides that no State shall "deny to any person within its In those rare cases where the use of race jurisdiction the equal protection of the properly fmihered a compelling state laws." U.S. CONST. amend. XlV. One of interest, the Court has emphasized that the the Amendment's "core principles" is to "do means chosen must "work the least harm away with all governmentally imposed possible," and be narrowly tailored to fit the discriminations based on race," and to create interest "with greater precision than any "a Nation of equal citizens in a society alternative means." Moreover, the failure to where race is irrelevant to personal consider available race-neutral alternatives oPPOltunity and achievement." This is why and employ them if efficacious would cause "[r]acial and ethnic distinctions of any sort a program to fail strict scrutiny. are inherently suspect and ... call for the most exacting judicial examination." Gruffer changed this. After finding that racial diversity at the University of In Gruffer, the majority acknowledged these Michigan Law School ("Law School") was a fundamental principles, but then departed compelling governmental interest, the Court and held, for the first time, that racial redefined the meaning of narrow tailoring. preferences in university admissions could The Couli replaced narrow tailoring's be used to serve a compelling state interest. conventional "least restrictive means" Though the Court recognized that strict requirement with a regime that encourages scrutiny should govern the inquiry into the opacity and is incapable of meaningful use of race in university admissions, what judicial review under any level of scrutiny. the Court applied in practice was something Courts now simply assume, in the absence else entirely. of evidence to the contrary, that university administrators have acted in good faith in A. pursuing racial diversity, and courts are required to defer to their educational The Grutter majority asserts that "[s ]trict judgments on how best to achieve it. What is scrutiny is not 'strict in theory, but fatal in more, the deference called for in Gruffer fact. '" But since the Court began applying seems to allow universities, rather than the strict scrutiny to review governmental uses courts, to determine when the use of racial of race in discriminating between citizens, preferences is no longer compelling. This the number of cases in which the Court has new species of strict scrutiny ensures that permitted such uses can be counted on one only those admissions programs employing hand. The Court has rejected numerous the most heavy-handed racial preferences, intuitively appealing justifications offered and those programs foolish enough to for racial discrimination, such as remedying maintain and provide conclusive data, will general societal discrimination, enhancing be subject to "exacting judicial the number of minority professionals examination." Others, like the University of available to work in underserved minority Michigan in Gruller, and the University of communities, and providing role models for Texas here, can get away with something minority students. In all of these cases, the less.

14 B. when race is factored in, how is that different from the mechanical group-based In Grutter, the University of Michigan Law boost prohibited in Gratz? Although one School sought to achieve a student body that system quantifies the preference and the was both academically strong and diverse other does not, the result is the same: a along several dimensions, including race. determinative benefit based on race. There, the Court endorsed the Law School's "highly individualized, holistic review of Grutter's new terminology like each applicant's file, giving serious "individualized consideration" and "holistic consideration to all the ways an applicant review" tends to conceal this result. By might contribute to a diverse educational obscuring the University of Michigan's use environment." The Court noted approvingly of race in these diffuse tests, the Court that the Law School had "no policy ... of allowed the Law School to do covertly what automatic acceptance or rejection based on the undergraduate program could not do any single 'soft' variable." The Grutter overtly. majority permitted the use of race and ethnicity as "plus" factors within the Law c. School's holistic review, but this simply raises the question: how much of a plus? Grutter found that the Law School had a Grutter did not say. compelling interest in "securing the educational benefits of a diverse student Instead, the Comi implicitly forbade body," and that achieving a "critical mass" universities from quantifying racial of racially diverse students was necessary to preferences in their admissions calculus. accomplish that goal. The Law School Contrasting the admissions system found defined "critical mass" as "a number that unconstitutional in Gratz, the Grutter encourages underrepresented minority majority noted that "the Law School awards students to participate in the classroom and no mechanical, predetermined diversity not feel isolated ... or like spokespersons 'bonuses' based on race or ethnicity." On for their race." The Court clarified: "critical this view, rigid point systems that allocate mass is defined by reference to the preference points for racial and ethnic status educational benefits that diversity is are unconstitutional because they "preclude[ designed to produce." Justice O'Connor's ] admissions counselors from conducting the majority opinion identified three such type of individualized consideration the constitutionally relevant benefits: (i) Court's opinion in Grutter requires." increased perspective in the classroom; (ii) improved professional training; and (iii) But it is not clear, to me at least, how using enhanced civic engagement. race in the holistic scoring system approved in Grutter is constitutionally distinct from My difficulty with Grutter's "educational the point-based system rejected in Gratz. If benefits of diversity" discussion is that it two applicants, one a preferred minority and remains suspended at the highest levels of one nonminority, with application packets hypothesis and speculation. And unlike identical in all respects save race would be ordinary hypotheses, which must be testable assigned the same score under a holistic to be valid, Grutter's thesis is incapable of scoring system, but one gets a higher score testing.

15 1. individuals, but as a race. At the same time, the Court approved a policy granting race­ The first constitutionally relevant benefit based preferences on the assumption that that makes up Grutter's compelling interest racial status correlates with greater diversity is racial diversity's direct impact in the of viewpoints. classroom. Here, the Court concluded that diverse perspectives improve the overall 2. quality of education because "classroom discussion is livelier, more spirited, and Grlltter's second asserted educational simply more enlightening and interesting benefit of diversity relates to improved when students have the greatest possible professional training. Such training is variety of backgrounds." essential, the argument goes, for future leaders who will eventually work within and Assuming a critical mass of minority supervise a racially diverse workforce. students could perceptibly improve the quality of classroom learning, how would State universities are free to define their we measure success? educational goals as broadly as needed to serve the public interest. We defer to My concern with allowing viewpoint educators' professional judgments in setting diversity's alleged benefits to justify racial those goals. My concern, discussed preference is that viewpoint diversity is too throughout this opinion, is not that Grutter theoretical and abstract. If all a university commands such deference, but that it "need do is find ... report[s]," studies, or conflated the deference owed to a surveys to implement a race-conscious university'S asserted interest with deference admissions policy, "the constraints of the to the means used to attain it. Equal Protection Clause will, in effect, have been rendered a nullity. Gruffer permits There is, however, one aspect of the Court's race-based preferences on nothing more than "improved professional training" rationale intuition-the type that strict scrutiny is that I find especially troubling. While designed to protect against. Grlltter made much of the role that educational institutions play in providing The Constitution prohibits state professional training, the cases the Comi decisionmakers from presuming that groups relied on involved primary and secondary of individuals, whether classified by race, schools. I question whether these cases ethnicity, or gender, share such a quality apply with equal force in the context of collectively. There is no one African­ higher education, where academic goals are American or Hispanic viewpoint, and, in vastly different from those pursued in fact, Grutter approved the Law School's elementary and secondary schools. diversity rationale precisely because of the Moreover, a university'S self-styled role that racial diversity can play in educational goals, for example, promoting dispelling such falsehoods. "cross-racial understanding" and enabling students "to better understand persons of Gruffer sought to have it both ways. The different races," could just as easily be Court held that racial diversity was facilitated in many other public settings necessary to eradicate the notion that where diverse people assemble regularly. I minority students think and behave, not as do not believe that the university has a

16 monopoly on furthering these societal goals, Grutter posits in the block quote above, I or even that the university is in the best doubt that suspending the prevalent position to further such goals. constitutional rules to allow preferred treatment for as few as 15--40 students, is 3. likely to foster renewed civic participation from among that community as a whole. Finally, Grutter articulated a third benefit of racial diversity in higher education: D. enhancing civic engagement. Here, the Court wrote that: Finally, by using metaphors, like "critical mass," and indefinite terms that lack In order to cultivate a set of leaders with conceptual or analytical precision, but rather legitimacy in the eyes of the citizenry, it is sound in abject subjectivity, to dress up necessary that the path to leadership be constitutional standards, Grutter fails to visibly open to talented and qualified provide any predictive value to courts and individuals of every race and ethnicity. All university administrators tasked with members of our heterogeneous society must applying these standards consistently. And have confidence in the openness and notwithstanding the Court's nod to integrity of educational institutions that federalism, Grutter's ambiguity discourages provide this training .... Access to [higher] States from experimenting or depmiing from education ... must be inclusive of talented the one accepted norm. In the absence of and qualified individuals of every race and clear guidance, public universities ethnicity, so that all members of our nationwide will simply model their heterogeneous society may participate in the programs after the one approved in Grutter educational institutions that provide the rather than struggle with the risks and training and education necessary to succeed uncertain benefits of experimentation. That in America. is exactly what has occurred here. With one exception-the Top Ten Percent law-the Unlike the first two "educational benefits of race-conscious admissions policy that we diversity," which focused on improving review today is identical to the program classroom discussion and professional used at the Law School. training, this third claimed benefit plainly has nothing to do with the university's core II. education and training functions. Instead, Grutter is concerned here with role that As mentioned at the outset, I concur in the higher education plays in a democratic opinion because I believe today's decision is society, and the Court suggests that a faithful application of Grutter's teachings, affirmative action at public universities can however flawed I may find those teachings advance a societal goal of encouraging to be. I am compelled to follow the Court's minority participation in civic life. This unusual deference towards public university proposition lacks foundation. administrators in their assessment that racial diversity is a compelling interest, as well as If a significant portion of a minority the Court's refashioned narrow-tailoring community sees our nation's leaders as inquiry. My difficulty is not necessarily with illegitimate or lacks confidence in the today's decision, but with the one that drives integrity of our educational institutions, as it. Nonetheless, there is one aspect of Judge

17 Higginbotham's thoughtful OpInIOn that enrolling class from Texas high schools), gives me pause about whether Grutter 305 (4.8%) were a product of Top Ten compels the result we reach today. Percent, while 58 (0.92%) African­ Ultimately, and regrettably, I recognize that American enrollees had been evaluated on the deference called for by Grutter may the basis of their AI/PAl scores. For the make this concern superfluous. 1,322 (21 %) total enrolled in-state Hispanic students, 1,164 (18.4% of enrolled in-state As today's opinion notes, the University of students) were a product of Top Ten Texas's race-conscious admissions policy is Percent, while 158 (2.5%) had been nearly indistinguishable from the program evaluated on the basis of their AIIP AI approved by the Supreme Court in Grutter. scores. We know that in some cases an As such, the majority opinion summarily applicants' AI score is high enough that the finds that, like the Law School in Gruffer, applicant is granted admission based on that the University of Texas has a compelling score alone. But we do not have data to interest in obtaining the educational benefits show how many of these 58 African­ of diversity in its undergraduate program. American and 158 Hispanic students were After affording all deference due, today's admitted automatically based on their AI decision focuses on the efficacy of the scores, which are race-neutral, and how University's race-conscious admissions many were admitted after factoring in the policy. In my view, the efficacy of the students' P AI scores, which use the University's race-based admissions policy is University's Grutter-like holistic evaluation more than merely relevant, it is dispositive. plan and include consideration of an applicant's race as one of seven "special The controlling question is, "Is the circumstances." Nonetheless, assuming that University of Texas's race-conscious policy all 58 and 158 African-American and effective?" The constitutional inquiry for me Hispanic students, respectively, were concerns whether the University's program admitted on the basis of their combined Al meaningfully furthers its intended goal of and PAl scores, the question is whether the increasing racial diversity on the road to University's use of race, which is a "highly critical mass. I find it does not. suspect tool," as part of the PAl score contributes a statistically significant enough In the 2008 admissions cycle, 29,501 number of minority students to affect critical students applied to the University of Texas. mass at the University of Texas. Less than half, 12,843, were admitted and 6,715 ultimately enrolled. Of these enrolled We do not know, because the University students, 6,322 came from Texas high does not maintain data, the degree to which schools. 5,114 (80.9% of enrolled Texas race influenced the University's admissions residents) of these students were a product decisions for any of these enrolled students of Top Ten Percent, meaning that, at most, or how many of these students would not 1,208 (19.1%) enrolled non-Top Ten have been admitted but-for the use of race as Percent Texas residents had been evaluated a plus factor. But assuming the University on the basis of their AI/PAl scores. gave race decisive weight in each of these 58 African-American and 158 Hispanic Of the 363 African-American freshmen students' admissions decisions, those from Texas high schools that were admitted students would still only constitute 0.92% and enrolled (6% of the 6,322-member and 2.5%, respectively, of the entire 6,322-

18 person enrolling in-state freshman class. Government-sponsored discrimination IS repugnant to the notion of human equality III. and is more than the Constitution can bear. There are no de minimis violations of the The Supreme Court's narrow tailoring Equal Protection Clause, and when jurisprudence has been reliably tethered, at government undertakes any level of race­ least before 2003, to the principle that based social engineering, the costs are whenever the government divides citizens enormous. Not only are race-based policies by race, which is itself an evil that can only inherently divisive, they reinforce be justified in the most compelling stereotypes that groups of people, because of circumstances, that the means chosen will their race, gender, or ethnicity, think alike or inflict the least harm possible, and fit the have common life experiences. The Court compelling goal "so closely that there is has condemned such class-based little or no possibility that the motive for the presumptions repeatedly. classification was illegitimate racial prejudice or stereotype." Grutter abandoned Yesterday's racial discrimination was based this principle and substituted in its place an on racial preference; today's racial amorphous, untestable, and above all, preference results in racial discrimination. hopelessly deferential standard that ensures Like the plaintiffs and countless other that race-based preferences in university college applicants denied admission based, admissions will avoid meaningful judicial in part, on government-sponsored racial review for the next several decades. discrimination, I await the Court's return to constitutional first principles.

19 "Justices Take Up Race as a Factor in College Entry"

The New York Times February 21,2012 Adam Liptak

In a 2003 decision that the majority said it alarm to the cOUli's decision to hear the expected would last for 25 years, the case. "I think it's ominous," said Lee Supreme COUli allowed public colleges and Bollinger, the president of Columbia universities to take account of race in University, who as president of the admission decisions. On Tuesday, the court University of Michigan was a defendant in signaled that it might end such affirmative the Grutter case. "It threatens to undo action much sooner than that. several decades of effort within higher education to build a more integrated and just By agreeing to hear a major case involving and educationally enriched environment." race-conscious admissions at the University of Texas, the court thrust affirmative action Opponents saw an opportunity to strike a back into the public and political discourse decisive blow on an issue that had partly after years in which it had mostly faded faded from view. "Any form of from view. Both supporters and opponents discrimination, whether it's for or against, is of affirmative action said they saw the wrong," said Hans von Spakovsky, a legal announcement-and the change in the fellow at the Heritage Foundation, who court's makeup since 2003-as a signal that added that his daughter was applying to the court's five more conservative members college. "The idea that she might be might be prepared to do away with racial discriminated against and not be admitted preferences in higher education. because of her race is incredible to me."

The consequences of such a decision would Arguments in the new case are likely to be be striking. It would, all sides agree, reduce heard just before the presidential election in the number of African-American and Latino November, and they may force the students at nearly every selective college candidates to weigh in on a long dormant and graduate school, with more Asian­ and combustible issue that has divided the American and white students gaining electorate. There was little immediate entrance instead. reaction from the campaign trail and in official Washington on Tuesday, which may A decision barring the use of race in be attributable to the political risks the issue admission decisions would undo an presents to both Democrats and accommodation reached in the Supreme Republicans. COUli's 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and Some polls show that a narrow majority of universities could not use a point system to Americans support some forms of increase minority enrollment but could take affirmative action, though much depends on race into account in vaguer ways to ensure how the question is framed, and many academic diversity. people have at least some reservations.

Supporters of affirmative action reacted with The new case, Fishel' v. University of

20 Texas, No. 11-345, was brought by Abigail The court's membership has changed since Fisher, a white student who says the 2003, most notably with the appointment of University of Texas denied her admission Justice Samuel A. Alito Jr., who replaced because of her race. The case has Justice O'Connor in 2006. Justice Alito has idiosyncrasies that may limit its reach, but it voted with the court's more conservative also has the potential to eliminate diversity justices in decisions hostile to government as a rationale sufficient to justify any use of use of racial classification. race in admission decisions-the rationale the court endorsed in the Grutter decision. Chief Justice John G. Roberts Jr. has been Diversity, Justice Sandra Day O'Connor particularly skeptical of government wrote, encourages lively classroom programs that take account of race. "Racial discussions, fosters cross-racial harmony balancing is not transformed from 'patently and cultivates leaders seen as legitimate. But unconstitutional' to a compelling state critics say there is only a weak link between interest simply by relabeling it 'racial racial and academic diversity. diversity, '" he wrote in a 2007 decision limiting the use of race to achieve The Grutter decision allowed but did not integration in public school districts. require states to take account of race in admissions. Several states, including Justices Alito, Antonin Scalia and Clarence California and Michigan, forbid the practice, Thomas agreed. Justice Anthony M. and public universities in those states have Kennedy, the court's swing justice, also seen a drop in minority admissions. In other voted to invalidate the programs. But he was states and at private institutions, officials less categorical, sharply limiting the role generally look to race and ethnicity as one race could play in children's school factor among many, leading to the assignments but stopping short of forbidding admission of significantly more black and school districts from ever taking account of Hispanic students than basing the decisions race. Still, Justice Kennedy has never voted strictly on test scores and grades would. to uphold an affirmative action program.

A Supreme COUl1 decision forbidding the In Texas, students in the top 10 percent of use of race in admission at public high schools are automatically admitted to universities would almost ce11ainly mean the public university system, a policy that that it would be barred at most private ones does not consider race but increases racial as well under Title VI of the Civil Rights diversity in part because so many high Act of 1964, which forbids racial schools are racially homogenous. Ms. Fisher discrimination in programs that receive just missed that cutoff at her high school in federal money. In her majority opinion in Sugar Land, Tex., and then entered a Grutter, Justice O'Connor said the day separate pool of applicants who can be would come when "the use of racial admitted through a complicated system in preferences will no longer be necessary" in which race plays an unquantified but admission decisions to foster educational significant role. She sued in 2008. diversity. She said she expected that day to arrive in 25 years, or in 2028. Tuesday's Ms. Fisher is soon to graduate from decision to revisit the issue suggests the Louisiana State University. Lawyers for the deadline may arrive just a decade after University of Texas said that meant she had Gruffer. not suffered an injury that a court decision

21 could address, meaning she does not have Chief Judge Edith Jones of the United States standing to sue. Court of Appeals for the Fifth Circuit, dissenting from the full appeals court's Ms. Fisher's argument is that Texas cannot decision not to rehear Ms. Fisher's case, was have it both ways. Having implemented a skeptical of state officials' rationale. "Will race-neutral program to increase minority classroom diversity 'suffer' in areas like admissions, she says, Texas may not applied math, kinesiology, chemistry, Farsi supplement it with a race-conscious one. or hundreds of other subjects if, by chance, Texas officials said the additional effort was few or no students of a certain race are needed to make sure that individual enrolled?" she asked. classrooms contained a "critical mass" of minority students. Justice Elena Kagan disqualified herself from hearing the case, presumably because The lower federal courts ruled for the state. she had worked on it as solicitor general.

22 "In Fisher v. Texas, Look at the Politics"

The New York Times February 23,2012 Ian Haney-Lopez

We should expect the Supreme Court in Instead, conservative justices wielded their Fisher v. Texas to declare affirmative action power against affirmative action. They unconstitutional. To understand this ended efforts to use race to promote decision, ignore the social reality of integration in contracting, employment and continued racial inequality. Focus instead on voting-and, with Fisher, likely higher electoral politics past and present. education.

Starting with Richard Nixon, conservative These dramatic reversals occUlTed in fits and politicians campaigned against the Supreme starts. After a notable pause, are-energized Court, using it as a foil in the culture wars. bloc is marching again. Two especially Forced busing, affirmative action, the devastating developments loom. The court coddling of criminals-these supposed seems intent on making federal laws offenses were charged to the court, and then banning discrimination as ineffective as used to mobilize voters discomfited by they've rendered the constitution III recent racial progress. Beyond race-baiting, detecting racial mistreatment; and also other choice phrases included school prayer, poised to extend the ban on affirmative abortion on demand, and tolerance for the action to corporations, private hospitals, homosexual lifestyle. In the 40 years foundations and unions. If these come to preceding Barack Obama's election, pass, the court will have curtailed every Republicans elected on these themes held direct means of achieving an integrated the presidency for 28 years-and appointed society. 12 of the 14 justices elevated to the court. Once again, today's presidential campaign The net result for racial justice can be easily resounds with themes of gay marriage, summarized. The court stopped seeing in the abortion, contraception and now affirmative Constitution a source of protection for action-issues guaranteed to inform judicial minorities: after 1980, it virtually never appointments. In 2012, vote as if racial found mistreatment against nonwhites. justice depends upon it.

23 "The Future of Affirmative Action: Kennedy is the Key"

Huff Post Politico March 6, 2012 Stephen Menendian

The United States Supreme Court recently democracy more generally-might lose agreed to take up the case of Fisher v. "legitimacy in the eyes of the citizenry." In University of Texas. The case will once addition, the Court underscored the vital more put the issue of affirmative action importance of academic freedom, of giving squarely into national focus just eight years universities the flexibility they need to select after the Court upheld the use of race in the the student body that will prepare their University of Michigan's admissions students for academic success. The Court decisions in Grutter v. Bollinger. By a 5-4 explained that creating a diverse student vote, the Court in Grutter upheld the use of body promotes the exchange of diverse race in university admissions, but placed viewpoints, reduces stereotyping and strict limits on the practice. Now that the prejudice, and generates cross-racial composition of the Court has changed, understanding. attention will fall on Justice Kennedy, the current Comi's critical swing vote. Since While the Court upheld the University of recent appointee Justice Kagan has recused Michigan Law School's admissions herself from the case, on account of her procedure, the Comi placed strict limits on participation in these cases in her previous such decision-making to safeguard the role as solicitor general, the stakes are interests of nonminority students. The Court higher than ever. One way or the other, required that any race-conscious admissions Justice Kennedy will decide the fate of procedure be "narrowly tailored." The Court affirmative action. His dissenting opinion in indicated that a narrowly tailored process Grutter is a roadmap to the outcome in would include consideration of race-neutral Fisher. alternatives and would apply a 'holistic' approach to admissions decision-making, The Court in Grutter held that promoting ensuring that race is not a decisive factor in racial diversity in institutions of higher any given admissions determination. In education is a compelling governmental particular, a university may not set a quota interest that serves to ensure that the or pursue a numerical target, but may seek pathways of opportunity are open to persons to enroll a 'critical mass' of of all backgrounds and races. This is underrepresented students. In a companion especially true for flagship institutions such decision, the Court struck down the as the University of Michigan or the University of Michigan's undergraduate University of Texas. The Court also admissions procedure for failing to meet the emphasized the impOliance of diversity for requirements of narrow tailoring. these institutions in terms of our broader democratic society. The Court reasoned that Ultimately, Grutter was decided by a 5-4 if the training grounds for our nation's vote. While Justice O'Connor, writing for leaders were not "visibly open to talented the majority, held that the University of and qualified individuals of every race and Michigan Law School's admissions plan ethnicity," then these institutions-and our was narrowly tailored, Justice Kennedy

24 remained unconvinced. To explain his proper rule for reviewing affirmative action disagreement, Justice Kennedy authored a policies, the Fisher decision will not result in separate, dissenting, OpInIOn. Justice the end of affirmative action. It does, Kennedy's dissenting opinion in Grutter however, seem likely that the Court in provides a clear roadmap for his ruling in Fisher, in a 5-3 decision (since Kagan will Fisher. not have a vote), will strike down the use of race in admissions currently employed by In his dissenting opinion, Justice Kennedy the University of Texas for failing the agreed with Justice O'Connor that the narrowly tailoring requirement. proper rule for evaluating affirmative action derives from Justice Powell's opinion in the The University of Texas currently reviews 1970s Bakke decision, an opinion had not two pools for its undergraduate programs. enjoyed clear support of a majority of the By law, any student graduating in the top Court until Grutter. In his opinion in Bakke, 10% of their high school class is Justice Powell asserted that promoting automatically admitted to the University of diversity is a compelling government Texas. The top 10% law was passed in the interest that would justify the use of race­ last 1990s following a federal case that conscious admissions. However, such a struck down the University's affirmative program must be narrowly tailored to action plan. The 10% ironically relies on safeguard the rights of innocent non­ underlying patterns of de facto segregation minority students. Therefore, it follows that throughout the state to ensure diversity in Justice Kennedy, like Justice O'Connor, the University's undergraduate programs. believes that promoting racial diversity is a The vast majority of the students admitted to compelling governmental interest, and the University are enrolled through the top would uphold any affirmative action 10% law. The remaining applicants are then program that is narrowly tailored. However, subject to the holistic race-conscIous unlike Justice O'Connor, who voted to admissions procedure. uphold the University of Michigan Law School's holistic admissions plan, Justice Ultimately, the Fisher case will more finely Kennedy did not believe that University of determine the kinds of restrictions that will Michigan's diversity plan was narrowly be imposed on permissible affirmative tailored. In particular, Justice Kennedy cited action plans. Although the Petitioner, the fact that the narrow fluctuation band of Abigail Fisher, argues that no consideration minority enrollment over the years of race should be allowed, the COUli will not "subverted individual determination." In lay down such a rule. Justice Kennedy, addition, Justice Kennedy was concerned writing on behalf of the Court, will not vote that the undue attention to the 'daily to prohibit affirmative action, but will likely reports', which updated university clarify the kinds of narrow tailoring admissions administrators on the number of requirements that are required to satisfy minority applications accepted, undermined strict scrutiny and safeguard the rights of the individualized review throughout the non-minority applicants under the equal entire admissions process. protection clause.

Given Justice Kennedy's agreement broad The Fisher decision will likely resemble the agreement with Justice O'Connor that Parents Involved in Community Schools v. Justice Powell's opinion in Bakke is the Seattle School District No. 1 decisions from

25 2007 in which Justice Kennedy voted to the 10% plan in achieving an increase in strike down the voluntary integration plans minority enrollment may well doom the at issue, but made clear that avoiding the chances for arguing that additional race­ harms of racial isolation and promoting conscious mechanisms are necessary to racial diversity in K-12 education are achieve a diverse student body. Each of compelling governmental interests, and set these questions and more will be thoroughly forth various methods by which it may be argued and debated. Should Justice Kennedy permissibly achieved. Furthermore, Justice make it practically impossible to achieve Kennedy went out of his way to underscore meaningful diversity using affirmative the necessity of such plans for the future of action, creative race-neutral alternatives our nation, given the endemic inequities in designed to promote diversity in higher our K-12 system. education, such as the 10% plan, more intensive recruitment of minority students to Although affirmative action will not be boost applicant pools, or examination of eliminated as a result of this case, the race proxies such growing up in ultimate resolution is likely to be fact neighborhoods of concentrated poverty, will intensive. The precise range of minorities likely become the focus of future efforts admitted under the general admissions pool promote diversity in higher education. will be carefully scrutinized. The success of

26 "Obama Lawyers Urge High Court to Back Affirmative Action"

Bloomberg August 13,2012 Greg Stohr

The Obama administration urged the U.S. reaffirmed that ruling in 2003, saying in Supreme Court to reaffirm the legality of Grutter v. Bollinger that universities can race-based college admissions, as the consider race in admissions as long as they justices prepare to review the affirmative don't do so mechanistically. action programs that have become fixtures at the nation's top universities [in Fisher v. With five of the nine current justices openly University of Texas]. skeptical about racial classifications, the 2003 decision may now be in jeopardy. The high court will hear arguments Oct. 10 on a white woman's contention that she Today was the deadline for outside groups suffered racial discrimination when the to file briefs supporting Texas in the case. University of Texas rejected her application Among those siding with the university was for admission. a group of 59 companies, including Microsoft Corp. (MSFT) and Wal-Mart The case has broad implications for selective Stores Inc. (WMT) universities, almost all of which use race as an admissions factor to diversify their The companies said they "must be able to student bodies. In a 35-page brief filed hire highly trained employees of all races, today, the administration sought to make the religions, cultures and economIC issue one of national security, saying the backgrounds." military, Federal Bureau of Investigation and Depatiment of Homeland Security all Colin Powell, the former secretary of state rely on universities to produce a steady and chairman of the Joint Chiefs of Staff, stream of diverse graduates. joined a group of retired military leaders who also urged the court to side with Texas. "The United States has a critical interest in ensuring that educational institutions are "Enormous Consequences" able to provide the educational benefits of diversity," U.S. Solicitor General Donald The rejected student, Abigail Noel Fisher, Verrilli argued in a brief signed by officials says the university is violating the 14th in six federal departments, including the Amendment's equal protection clause. Pentagon. "If any state action should respect racial Bakke Case equality, it is university admission," Fisher's lawyers argued in a court filing in May. Universities have had the couti's blessing "Selecting those who will benefit from the for affirmative action since the 1978 limited places available at universities has Regents of the University of California v. enormous consequences for the future of Bakke decision gave race-conscious American students and the perceived admissions a limited endorsement. The court fairness of government action."

27 Texas uses a system that combines racial admissions process. Texas also says it preferences with a rule that guarantees doesn't have numerical goals for minority admission to state residents who graduate in admissions. the top 10 percent of their high school class. The so-called Top Ten Percent Law was "The fact that race has only a modest and designed in part to boost minority nuanced role in admissions decisions is not a admissions at state universities. constitutional problem," the university argued in court papers filed last week. "It is One issue for the Supreme Court will be the hallmark of the type of plan this Court whether the hybrid nature of Texas's has held out as constitutional since Bakke. " approach undermines the rationale for race­ based admissions. A federal appeals court in The case will test the impact of the court's New Orleans upheld the Texas system. changed makeup, particularly the 2006 retirement of Justice Sandra Day O'Connor, Racial Role who wrote the 2003 opinion, and the appointment of her successor, Justice Fisher's lawyers point to statistics indicating Samuel Alito. that the Top Ten Percent Law, enacted in 1997, was helping ensure a significant Alito was in the majority in a 2007 decision number of minority students even without that put new limits on public school explicit consideration of race. integration efforts-and raised questions about the viability of other race-based The state says it uses race in a more limited government policies. way than the University of Michigan Law School in the 2003 case. Texas says that, The case, which the court probably will unlike Michigan, it doesn't track the racial decide in the first half of 2013, is Fisher v. composition of its entering class during the University of Texas at Allstin, 11- 345.

28 "The Next Big Affirmative-Action Case"

The Chronicle ofHigher Education January 27,2011 Richard Kahlenberg

Last week, a three-judge panel of the Fifth though technically a "special concurrence," Circuit Court of Appeals handed down a was highly critical of affirmative action, decision supporting a racial affirmative­ calling it unnecessary. He noted that in the action program at the University of Texas. 2008 admissions cycle, of the 363 African Today, a Nevil York Times editorial American freshmen from Texas admitted applauded the decision and concluded, "This and enrolled, 305 were the product of the ruling should give confidence to all Top Ten Percent plan, and just 58 were universities about seeking diversity and admitted through merit or a combination of merit." merit and race. For in-state Hispanics, 1,322 were admitted through the Top Ten Percent Far from glvmg confidence, however, the plan and just 158 through merit or a decision may well have set the stage for a combination or merit and ethnicity. He U.S. Supreme Court ruling that will severely concluded, "the University of Texas's use of undercut, if not oveliurn, the 2003 Grlltter v. race has had an infinitesimal impact on Bollinger decision affirming the use of race critical mass in the student body as a in admissions. whole." The finding is impOliant because the Supreme Court used the minimal impact In the Fifth Circuit case, Fisher v. Texas, of race in K-12 integration plans in white plaintiffs challenged the use of race in Louisville and Seattle to suggest the use of admissions, arguing that Texas's Top 10 race was not really necessary. Percent plan-which automatically admits those in the top 10 percent of their high Judge Garza's opinion is replete with school class-creates sufficient racial quotations from decisions by Justice diversity by itself. Plaintiffs noted that using Anthony Kennedy, the new swing vote on race-blind criteria produced a class that was the Supreme Court. Garza homed in on 4.5 percent African-American and 16.9 Kennedy's 2007 declaration that the percent Hispanic in 2004, so the subsequent individual classification of students by race reintroduction of race on top of the Ten should be used only as "a last resort." Percent plan is unconstitutional. (In Grlltter, Kennedy notably dissented in Grlltter, a law-school class that ranged between 13.5 saying the Court should "force educational and 20.1 percent minority was considered to institutions to seriously explore race-neutral have achieved a "critical mass" of such alternatives. " students.) Garza calls for the U.S. Supreme COUli to On the surface, the three-judge Fifth Circuit overturn Grlltter, but it seems more likely to panel decision was unanimously supportive me that while the conservatives (Justices of the University of Texas, but as Peter Robelis, Thomas, Scalia, and Alito) might Schmidt noted in The Chronicle, "the judges be willing to take that step, Justice Kennedy were deeply divided in their reasoning." In would be more comfortable gutting Gmtter, particular, Judge Emilio Garza's opinion, without overturning it, by vigorously

29 enforcing the decision's requirement to look lost, it might have declined to appeal for fear to alternatives before using race. The of setting a negative national precedent in practical implication would be for the Supreme Couti.) And the Circuit Court universities to earnestly employ class-based decision came quickly, increasing the affirmative action and top-percent plans, chances that the Supreme Court, in its reserving race for extreme cases. current conservative makeup, will hear the case. It is telling that the Center for Equal Opportunity's president, Roger Clegg, a All of this suggests that the survival of strong opponent of affirmative action, said Grutter is in serious question. Those who he saw the Fifth Circuit's Fisher decision as care about diversity should begin their positive in several respects. The division contingency planning now, exploring race­ within the panel invites a resolution from the neutral alternatives that will reach the sorts Supreme Couti, he argued. The loss for the of economically disadvantaged populations plaintiffs assures that the case will be that universities should have been pursuing appealed to the Supreme Court. (Had Texas all along.

30 "Asians and Affirmative Action"

Inside Higher Ed March 30, 2012 Scott Jaschik

A brief filed Tuesday with the U.S. Supreme caution that the new briefs have Court seeks to shake up the legal and oversimplified a complicated issue, political calculus of a case that could identifying the wrong culprit and ignoring determine the constitutionality of programs the benefits some Asian Americans receive in which colleges consider the race or from affirmative action. Generally, those ethnicity of applicants. In the brief, four Asian-American leaders backing affirmative Asian-American organizations call on the action stress the significant diversity among justices to bar all race-conscious admissions Asian-American students in the United decisions, arguing that race-neutral policies States-including many recent immigrants are the only way for Asian-American who are not achieving instant academic applicants to get a fair shake. success.

Much of the discussion of the case has The case before the Supreme COUli focused on policies that help black and challenges the right of UT-Austin to Latino applicants. And the suit that has consider race and ethnicity when it has been reached the U.S. Supreme Court was filed able to achieve some levels of diversity in on behalf of a white woman, Abigail Fisher, the student body through a race-neutral who was rejected by the University of Texas means: the" I 0 percent" law that has assured at Austin. all graduates in the top 10 percent of high schools in the state admission into any But the new brief, along with one recently public university in the state. The university filed on behalf of Fisher, say that the policy maintains that it should have the right to use at Texas and similar policies elsewhere hurt other measures as well, and two lower courts Asian-American applicants, not just white have backed that position. Fisher's lawyers applicants. This view runs counter to the disagree. opinion of many Asian-American groups that have consistently backed affirmative One test the Supreme Court has set for race­ action programs such as those in place at conscious decisions by public entities is that Texas. such efforts must be "narrowly tailored," and the briefs focused on Asian-American It is impossible to know how much weight applicants appear to suggest that the Texas the Asian-American issue will have with the program cannot meet that test in pati justices. But the briefs have renewed a because the programs are (in the plaintiffs debate about who benefits-and who view) hurting some minority students to help loses-from race-conscious admissions. others. While the briefs portray Asian Americans as victims of affirmative action, other Asian­ The brief filed Tuesday on behalf of Asian­ American groups are planning a brief American groups Tuesday focused less on backing affirmative action, and some experts the Texas admissions policy than on the on Asian-American educational trends consideration of race generally in college

31 admissions. "Admission to the nation's top Asian-American applicants need SAT scores universities and colleges is a zero-sum 140 points higher than those of white proposition. As aspiring applicants capable students to stand the same chances of of graduating from these institutions admission. The brief also quotes from outnumber available seats, the utilization of accounts of guidance counselors and others race as a 'plus factor' for some inexorably (including this account in Inside Higher Ed) applies race as a 'minus factor' against those talking about widely held beliefs in high on the other side of the equation. schools with many Asian-American students Particularly hard-hit are Asian-American that they must have higher academic students, who demonstrate academic credentials than all others to gain admission excellence at disproportionately high rates to elite institutions. but often find the value of their work discounted on account of either their race, or The brief filed on behalf of Fisher does nebulous criteria alluding to it," says the focus on Texas policies-and specifically brief. their impact on Asian-American applicants. Texas has stated that it considers black and It was filed on behalf of the 80-20 National Latino students "under-represented" at the Asian-American Educational Foundation, university, based in part on their proportions the National Federation of Indian American in the state population. And the Fisher brief Associations, the Indian American Forum considers that illegal. for Political Education, the Global Organization of People of Indian Origin and "UT's differing treatment of Asian the Louis D. Brandeis Center for Human Americans and other minorities based on Rights Under Law. (The latter group focuses each group's proportion of Texas's on discrimination against Jewish Americans, population illustrates why demographic and the brief argues that today's admissions balancing is constitutionally illegitimate ... policies have the same impact on Asian­ . UT gives no admissions preference to American applicants as prevIOUS Asian Americans even though 'the gross generations' policies had on Jewish number of Hispanic students attending UT applicants.) exceeds the gross number of Asian­ American students attending UT. ' This The brief focuses heavily on research studies differing treatment of racial minorities based such as the work that produced the 2009 solely on demographics provides clear book, No Longer Separate, Not Yet Eq1lal: evidence that UT's conception of critical Race and Class in Elite College Admission mass is not tethered to the 'educational and Camp1ls Life (Princeton University benefits of a diverse student body.' UT has Press), which argued that-when controlling not (and indeed cannot) offer any coherent for various factors--one could find the explanation for why fewer Asian Americans relative "advantage" in admissions of than Hispanics are needed to achieve the members of different ethnic and racial educational benefits of diversity." groups. A footnote in the brief seeks to drive home The book suggested that private institutions the point: "Recognizing representational essentially admit black students with SAT diversity as a compelling state interest might scores 310 points below those of comparable allow universities in racially homogenous white students. And the book argued that states to employ race to the detriment of

32 qualified minority applicants in order to brief, but opted not to do so. "We didn't maintain a student body that mirrors the know enough then to take a clear stand, but state population. Indeed, that is precisely the now we do," he said. problem facing Asian-American students in Texas, as they are 'over-represented' In the years since, he said, it has become demographically but highly qualified clear that consideration of race III academically. " admissions is not solving the nation's educational problems and "we now realize University of Texas officials are not giving how much we have been discriminated interviews on the briefs. But an affidavit in against." the case from Kedra Ishop, currently director of admissions at UT -Austin and, at Four other Asian-American groups-the the time she gave the statement, associate Asian Pacific American Legal Center, the director there, suggests that Texas may Asian American Justice Center, Asian contest the idea that Asian-American American Institute and Asian Law Caucus­ applicants could not benefit from affirmative filed a joint brief backing the University of action at the university. Texas when the case was considered by the U.S. Court of Appeals for the Fifth Circuit. In the statement, Ishop outlines factors that And these groups are planning to file could be considered in admissions, listing another brief with the U.S. Supreme Court. them this way: "the socioeconomic status of the applicant's family and school, whether Woo said he realized that those groups had the applicant is from a single-parent home, been speaking for Asian Americans whether languages other than English are generally in the affirmative action debate, spoken at the applicant's home, the but he said that students and families don't applicant's family responsibilities and agree with them. He said he wasn't bothered (starting with the fall class of 2005) the that other Asian-American groups would be applicant's race." These criteria suggest that challenging his positions. "They will be, as some Asian-American applicants could in we will be, accountable. Let's see how it fact receive some assistance on the will play out," he said. university's approach to admissions. Several experts on Asian Americans in Debating the Asian-American Perspective higher education agreed with Woo that many parents and families are frustrated by Much of the reaction to the new brief the college admissions process, and perceive focused on the wisdom of Asian-American it as hostile. But they questioned whether groups taking a stand against the affirmative action programs really are consideration of race. responsible.

S.B. Woo, a retired professor of physics at Mitchell 1. Chang, professor of higher the University of Delaware, and president of education, organizational change and Asian­ the 80-20 group, said he knew that American studies at the University of Tuesday's action was a significant step. California at Los Angeles, said that it is true Nine years ago, when the U.S. Supreme that many Asian Americans "seem to be the Court last considered the issue of race in ones who have the lowest chances, all things admissions, the group considered filing a being equal, of getting into the most

33 selective institutions." Chang said that part overwhelmingly favor white people. of the problems is the "hypercompetitive" environment in selective college admissions. Teranishi also said he was worried by a narrative that diversity effOlts help only But to the extent that Asian-American black and Latino students, and that applicants are being held to a higher discussions of diversity should focus on elite standard, Chang said, that is primarily institutions. He said that many non-elite compared to white students, who aren't institutions do quite a bit to recruit, admit benefiting from affirmative action. "There is and graduate Asian-American students who an issue we have to deal with: Why aren't come from recent immigrant groups to the Asian Americans with the same United States and who typically do not fare qualifications getting into the institutions at well in traditional admissions. Those the same rate as white students? That's the programs are vital, he said, but could question we have to address." disappear if Texas loses at the Supreme Court. "I fear we are seeing Asian He said briefs like those filed Tuesday will Americans used as a wedge group, which is reinforce the sense that it is other minority really problematic, based on narrow students taking slots from Asian Americans, interpretations of what affirmative action something Chang does not believe to be is. " true. "But that sentiment is out there, and that's where [the brief filed Tuesday] is Fmther, he said that he worries that the going to have a real impact." current focus will distract Asian-American leaders from emerging threats in higher Robert Teranishi, associate professor of education. For instance, he said that he higher education at New York University worried that the current emphasis of many and author of Asians in the Ivory Tower: colleges to recruit many more international Dilemmas of Racial Inequality in American undergraduates (many of whom are from Higher Education (Teachers College Press), Asia) was creating a false sense that higher said he believed Tuesday's brief was based education has "too many Asians." While on "a couple of false assumptions," one of Teranishi said he was in no way opposed to them being that programs for black and international recruitment, he said he wanted Latino students should be a target. Teranishi to know how this emphasis on foreign asked, for example, why those concerned students (who can pay their own way) was about the admission of Asian Americans to affecting other diversity efforts. elite colleges-especially private institutions-were not focused more on Over all, he said, Asian Americans benefit preferences for alumni children. While so not from attacking affirmative action, but called "legacy admits" do include non-white from "broader inclusion." applicants, such preferences

34 "U. of Texas Aims at Supreme Court's Likely Swing Vote in Defending Race-Conscious Admissions"

The Chronicle ofHigher Ed1lcation August 7, 2012 Peter Schmidt

The University of Texas at Austin is In a videotaped announcement that the brief defending race-conscious admissions before had been filed, William C. Powers Jr., the the U.S. Supreme Court with arguments that flagship campus's president, said, "We're explicitly seek to win over Justice Anthony confident that we'll prevail in this case, and M. Kennedy, widely regarded as the court's that this will bring benefit to American swing vote on the issue. higher education and to our nation and to the State of Texas." In a brief submitted to the court on Monday, the university focuses much of its energy on The Supreme Court is scheduled to hear oral offering Justice Kennedy assurances that the arguments in the case, Fisher v. University policy is distinct from one he found of Texas at Allstin (No. 11-345), in October. troublesome when the Supreme Court last One its more liberal members, Justice Elena weighed in on such admission practices, in Kagan, has recused herself, having been 2003. involved in her previous position as U.S. solicitor general in the Obama More broadly, the university argues that its administration's submission of a brief policy exemplifies the type that the Supreme supporting Texas when the case was before Court approved in its previous decisions on the U.S. Court of Appeals for the Fifth affirmative action, and accuses those Circuit. challenging its admission policy as unconstitutional of seeking to overturn 35 Of the court's eight remammg members, years' worth of Supreme Court precedents four-Chief Justice John G. Robel1s Jr. and dealing with colleges' consideration of the Justices Samuel A. Alito Jr., Antonin Scalia, race or ethnicity of applicants. and Clarence Thomas-are regarded as so skeptical of race-conscious government The brief argues that Abigail Noel Fisher, policies they probably will seek to abandon the rejected Texas applicant who filed the the court's 2003 Grutter v. Bollinger lawsuit now before the court, "really is just decision, which declared that narrowly asking this court to move the goal posts on tailored race-conscious admission policies higher education in America." It argues that can serve a compelling government interest. a Supreme Com1 decision to overrule, or Three others, Justices Stephen G. Breyer, effectively gut, past court decisions allowing Ruth Bader Ginsburg, and Sonia Sotomayor, race-conscious admissions "would are seen as likely to fully suppol1 Texas. jeopardize the nation's paramount interest in educating its future leaders in an Justice Kennedy stands out as a swing vote environment that best prepares them for the because in the Grutter decision he accepted society and work force they will encounter." the idea that such policies provide

35 educational benefits that serve a government state's demographic breakdown only in interest, but rejected the policy at issue, considering whether black or Hispanic from the University of Michigan's law students were underrepresented on the school. Austin campus, and that the way its admission process is structured precludes In the separate dissent he penned as part of any attempt to pass decisions on applications the court's 5-4 Grutter ruling, Justice with race- or ethnicity-based enrollment Kennedy argued that the Michigan law targets in mind. school gave too much weight to race for its policy to be considered narrowly tailored. In response to arguments by Ms. Fisher's He accused the law school of using race as lawyers that the court should consider "an automatic factor" in most admission overturning Grutter, the university argues decisions. Citing evidence that the law that a court decision to change its stand after school's admissions officers consulted daily just nine years "would upset legitimate repOlis breaking down the racial expectations in the rule of law," not to composition of each incoming class, he mention society'S interest in training argued that the school was using "numerical America's future leaders in a diverse goals indistinguishable from quotas," which campus environment. The university accuses the Supreme Court had struck down in 1978 Ms. Fisher's lawyers of improperly raising ruling in Regents of the University of an issue that had not been before the lower California v. Bakke, involving a medical courts and was beyond the scope of its school. request that the Supreme COUli hear the case. The brief that the University of Texas filed on Monday said its policy "lacks the Much of the university's brief is devoted to features that Justice Kennedy found countering the other side's argument that the disqualifying in Gmtter: It is undisputed that university had been achieving sufficient UT has not established any race-based levels of diversity through a race-neutral target; race is not assigned any automatic means, a state law guaranteeing admission value; and the racial or ethnic composition to any public university to young Texans in of admits is not monitored during the the top tenth of their high-school class. admissions cycle." Such an argument, it says, "ignores the Texas's brief accuses Ms. Fisher's lawyers, importance of diversity among individuals who submitted their own brief to the court in within racial groups" and the educational May, of going back on factual concessions benefits of considering individual they had previously made in the case by applicants' race to ensure that, for example, freshly accusing Texas of trying to strike a it can enroll minority students from particular racial balance in its enrollment. relatively advantaged backgrounds who can The university says that it considered the help break down stereotypes.

36