you'll hear arguments this morning in case fourteen ninety one fisher versus the university of texas at austin before we get started advised the lawyers that this is our only case this morning so we intend to grant the parties  minutes or so of extra time in the amicus five minutes so mr ryan no need to rush the chief justice and may please the court appreciate the extra time and i didn't rush up here to start before you invited me in reviewing the fifth circuit's initial decision in what we call fisher one seven members of this court reaffirmed that a clear precondition to the use of race as an admissions factor was the ability to satisfy what was called the demanding burden a strict scrutiny articulated establishing that she was considered for admission to u t under system that discriminated against her on the basis of her race is fisher placed upon u t the burden of proof of proving my evidence of record that its use of race was first in pursuit of a compelling constitutionally legitimate interest expressed with sufficient clarity and concreteness to allow  reviewing court to determine first that the use of race was a necessary last resort in pursuing the interests defined taking into account reasonably available nonracial alternative m and i'm saying even the a p i a system it's not a router or like plan it's not a plan of shaping a class by individual lives one to one comparisons it's not aimed at a critical  mass it's not a good or plan in that sense but i think the other part of this is that's of course not the case before us when you look at the satisfaction of a compelling interest you look and ask does my preexisting what's wrong with this plan if need is put aside well i think that's what the put it this way we do not oppose the use of the various p a i factors that were in place before race was what's wrong with this plan apart on a no and i know you're saying they didn't need to do it i said put it aside and answered just askin question you know if they had to use race how are they using it  improperly if you have to use race and you want to use the model that was created in baccy and cruder you would need to build profiles of individuals that would allow you to judge them one against another in the context of the class and the educational experience you're trying to create my god that sounds like it's using race more rather than less than this plan does i'm sorry if it sounds that way it is not it simply says in a situation of a bakkie situation where you're looking at every aspect of an individual and you're trying to judge whether one or another of individuals for the for places the last places would group most benefit the class class as a whole as a learning entity then you can as back indicates take account of the fact that they may have different backgrounds which would contribute different ideas as those are whole there are some comparisons that this is not this system that th doesn't do anything like baccy so it's very different even if you separate it from the necessity issue which is of course a major issue in this case but i'm assuming your question that they've shown that they needed to use race that was no other way to do whatever they were trying to do which is unclear to me either so you have both the question of whether they define a legitimate compelling interest you have the question of whether they've shown any necessity to use race but if even if i put those aside whether this is the narrowly tailored vision that came out of baccy is a very serious question it is it's quite different and i could you still haven't answered why this is worse and i mean because i it's not used to build a class it's just use to create a racial plus and to increase the number of minority admissions it really had a sudden house race given up plus i thought that what they're looking demonstrated awards and success out of school overcoming obstacles like a single parent family those are all part of the p a s i before race was added race was just tacked on as they said it's a factor of a factor of a factor  shifted position as to how it's used in the in the district where it was sort of to minimize a factor of a factor factor it's a minor plus don't worry about it it's now become well it's a contemptuous part of the p a s which is part of the p i and we can discretionary only jacked it up any way we want but all those other three actors think they are funny figment it that this isn't in favor of any particular race that white people in some situations can show leadership it's as well as black or hispanic or asian or native american any race could benefit from the sports factor so how is this person with respect we did not concede that and we would not conceded because the other p i factors might benefit anybody of any race people circumstances their leadership their community efforts those are universal and they can benefit any candidate but they don't benefit from the race factor the race factor was finding it very hard to distinguish what the university is doing apart from that and present plan but let me ask you about the ten percent plan itself because it seems to me that that is so obviously driven by one thing only and that thing his range is totally dependent upon having racially segregated neighborhoods racially segregated schools and it  to this way the top ten plan does not classify anybody by race it addresses only standing within the texas educational system and worth only in the back when what you say work it works on a number of fronts it creates geographic diversity it looks all over texas it doesn't distinguish between high schools it creates socio economic diversity it does have an effect demonstrated effect on race because a number of minorities of the type they care about  the top ten program but it's not based on race it's based on the degree of effort you make relative to the other people with whom you're being if you created the class of race i can i'm not a decision to tell you why it was created it  created any doubt that we need to at least a number of minority he'd like any other reason for the ten percent land well i've given you other reasons which are it's a it's kind of a democratic recognition that you want to invite people from all over texas regardless of the school they went to you're looking for those who are trying the hardest who are doing the best to excel in their environment with recreated in the wake of hopwood that  purpose and effect are different but yes it was created and in part because certain schools do have minorities the idea was well that would benefit those schools just it was it would benefit a rural high school in a white community which ordinarily would have view would be a sufficiently concrete criterion or cry to your set of criteria to achieve diversity well and certainly the solicitor general's attempted to do so by breaking the abstract goals into concrete objectives one goal that certainly gretta respects is if you have studied your campus and you believe there's an inadequate exchange of views and that minorities feel so isolated they cannot properly bring to bear their perspective on the campus you can look at measures of how successful are we in this kind of dialogue and try to investigate that and try to say ok is there a level of when do we reach a level of critical mass which is the term and grettir where that exchange is vibrant and is taking place on our campus that's one measure well that i don't understand how do you do that it's not easy to do and it's not our job to do it i mean we're not here to tell them how to do it but if one wanted to endeavor to try to find this kind of concrete level we're not saying quota but we are saying you have to have you that the university if you want to use this you suddenly have enough of a of a mass now and so i did one of the university base of the university based it on two things it was short of the demographics of the high school graduating class which is measurable but not legitimate it claimed that it was basing it on this classroom small class study which they had conducted previously which indicated that minorities were not present to the their satisfaction in a lot of small classes that  this case and this court said good faith does not suffice i'm not sorry i thought at the study they showed that in one nine hundred ninety six they had more participation in these smaller classes i don't know if they're really small when they're somewhere between eight and twenty five people that was but there were more of those classes in one nine hundred ninety six then in two thousand and three or two when they were looking at that study it would seem to me that that suggests that there is less what makes up from it that there is less exchange of ideas in a classroom rather than more based on this race neutral policy well i think what's wrong since you have to infer these things you can't use a quota that when you're saying we can't you they can't use demographics sill they use a study that shows there's less classes there's less people in classes they talk to administrator faculty and students they're having racial incidents on campus where students of color are complaining that they feel isolated that stereotyping is going on on campus  giulini let me start with your first concern which is this classroom study first thing i would observe about it if i were in their position and i'm not is that the second study was done at a time when there were more minorities admitted than the first study and they claimed it went backwards so that might tell me right away that the problem the necessity for using race could not be demonstrated for that because when you're the necessity is not necessity you're talking about is the desire to read i mean use words like create critical mass and so forth it sounds like a cloud of the sort of you don't know what they're talking but as i read further into it it becomes quite specific that is seventy five percent of the students are at this university because they were in the top ten percent of their class and it doesn't take long before students and faculty in particular situations know who is twenty five percent of the students in that class are admitted they're good students not in the top ten percent on the basis of leadership activities awards work experience community service families economic status school status family responsibilities single parent home languages other than english spoken at home s a t score relative to schools average and race occasionally to ok we're talking about that twenty five percent and it won't take long before students in a class see that in fact twenty five percent which means you aren't just in the top ten percent of your class in that twenty five percent there's hardly anybody who's african american or hispanic and this and seven years of experience with that kind of thing led the faculty at meetings administrators and others to say we should do more to see why is that not a diversity related judgment of what is necessary just a crime let me answer that first of all one thing your question establishes quite clearly is if one assumes premises from evidence that doesn't exist you can draw conclusions that are perhaps invalid so let me go back to to where you started you say these people are admitted on the basis of the various p i factors which you read that's not how they're admitted that p s a i is only part of the admissions criteria and it's not truly holistic because in the holistic systems you look at the person as a whole here you could have the most wonderful p a s i and never come close to admission because they use the independently so they're not admitted every school is like that every school in the country that's a college that i've ever experience is a combination of grades class position and a lot of other things but so i'm talking about people who aren't admitted seventy five percent are soley on the basis of class rank and then you assume that people could identify them one from another there so i was going to ask that does anybody except the faculty know who this elite twenty five percent is know and all of the ten percent people identify themselves now they do know around it bunches i'm one of the ten they don't want and and of course we know who attend course another level of admission to the faculty at the university subs subgroup in which they study whether it's business or communication there it's all done by  so they're all are all done equally and i come back to this the issue of classroom diversity because that does seem to me to be something that could be measured and maybe there's evidence in the record that measures i don't know so that's what i wan ask you but the university knows which students even if assuming that the students don't know the university knows what students were admit it because they were in the top ten percent in which were not and presumably they have a record of all of the classes and which students enrolled in which classes and so it would seem to me to be possible to determine whether the students who were admitted under the ten percent plan were less likely to choose to enroll in the classes in which minorities are under represented and the students who were admitted under a holistic review maybe that's in the record i haven't found it is there anything in the record to show that the best of the record because they did study that specifically when they did the classroom study they did they did not try to distinguish who was in the class it was just a number count by classification how many minorities of this kind how many of that kind th perspective that would be gained if there would be additional fact finding under the instructions that fisher sought to give and that just you were just arguing the same case well it's as if nothing had happened and  reason i know it seems to me that yes it's a legal question indicated this is the kind of thing that we should know of but we don't know well let me point out that the purpose of strict scrutiny is not just to adjudicate it is to instruct the university that before you use the odious classification before you employ race you ought to know these things if you're going to depend on them you want to study them and know them so the failure to do that so there is no evidence is not just because they didn't put it in but they weren't given the chance to add additional evidence in order to meet that standard well they can't go back and recreate the past they can't they have put in all the evidence available to them about how they can answer some of the question the like the one justice alito added and i and i think it's a very important point they could i mean it but they have to go back and study the conditions at the time they made the decision and i think that the failure to do that kind of thing indicates that the retreat to race was it reflexive was done on the de groot or came down only that also the failure to put it in it was their burden to put it in wasn't made yes and they knew it so we're going to say all they failed to put it in let's give them another chance well proceed salacious do a do over they send it back down so they can now put in what they should have put in in order to prevail the first time around and that i entirely agree with that and in fairness they knew that the standard was strict scrutiny grouper it said strict scrutiny back you said strict scrutiny it was no surprise and justice alito more directly the evidence we did find in the record indicated that where the most selective schools were concerned which would then lead you to the smaller classes more of the top ten minorities and rolled in that than the added minorities that they derive from the issue in this case is not whether the university can have a holistic review for the issue is whether they can have as a component of holistic review after they have taken into account other characteristics that are not dependent on race they can add race as an additional characteristic and so with that work is there would there be any way of determining if there were which of the non top ten admitting were admitted it soley because of race in other words these students would not have been admitted taking into account leadership and family education and socio economic background and hardship and everything else according to the inner city of texas answer that is no they cannot make that determination because in their view race is can text you will you cannot sort out those who could have made it  without race from those who didn't and just as a response just as prior as fact of record prior to the indication of race fifteen percent of the non top ten admits were force and were the minorities who  later benefited from race so it was not devoid of admits who were hispanic or or african american was producing fifteen percent the marginal increase out of race was if you try to measure it in very small  and i could think of reasons for that but so they couldn't put that in they denied that you could ever identify those students so that would be a fruitless pursuit unless they completely changed everything they said for would you say i should see a number with a very small i guess it would be the number of students who were it mid with the consideration of race who would not also correct that would be the measurement and there is no perfect answer to that when the university says they can identify but what we did was we looked at the historic period in which they were using the p a i without reference to race i compared that to the percentage admitted of the total student body of those admits in the period when they were using race and they compare there's about a two and a half percent difference so it's a very small and you were happy or sent difference in entering class numbers or of number of minorities admitted number of minorities you can measure it either way by enrollment or mission it's still going to be a very small may be very clear what you're trying to measure is to what extent did the use of race boost over the use of the p a i on a non racial basis i'm such an arrant in parents involved we indicated that at some point the actual benefit of the program turns out to be not really worth the very difficult decision to allow race to be considered if at the end of the day it generates a certain number and i'm trying to figure out what that number and i am saying that as we s our briefs and we tried to there's no perfect measurement because you don't have them running simultaneously right but if you tried to do it by looking at the results what using the p a i but not race versus the results both at the admission and roman stage of using the p a i affected by race it's under three percent and it's again sorry i do not sure where you get that number as i look at it between two thousand and four and two thousand and six seven it nearly doubled from three point six of the holistic class to six point eight for hispanic students that's for blacks it went from eleven point six to thirty sixteen point nine i don't think that s that small change in two thousand and eight to twenty percent of all black students and fifteen percent of all hispanic students were offered to the mission through holistic review  black and hispanic admission and roman rates have increased since two thousand and five this is on hint on holistic review the only exception was two thousand and eight and that is because ninety two percent of the class came in under t percent plan well you know when you get when you will use numbers about a mission on holistic review that incorporates the ones who would have made it without race so it's not a valid comparative number we try to the ones who would the ones who would have made it without race are incorporated in quote holistic review so those numbers really don't tell you anything about the effect of race they all wait a minute i don't understand how that can be if the two thousand and four number wasn't that much lower than the two thousand and seven number race has to have some input in that in that it has some effect that's what you t says they haven't measured and they say they can't measure the effect if you're dealing with different classes could i ask different question now i fear something i know there is an educational to pay on the benefits and cost of a ten percent plan i don't want to get into that  but i do have a worry which is if you're reading proof of a compelling need or proof of a compelling need will any holistic review ever survive this is i'm reading your answer to narrowly tailor schools have to use non racial means of doing it and if the ten percent plan is the only thing that achieves a greater number in minorities on every school have to use a ten percent plan we're not certainly trying to dictate that every school use a ten percent plan nor is it the only way in which you can encourage an increase minority in rome and so i don't accept that premise and strict scrutiny is of a heavy burden and the purpose of strict scrutiny is to recognise that the phaser answer is yes if there's no way of doing it then the only other race neutral way if offering scholarships with this university did increasing outreach to minority neighborhoods they did and continue to do is a list of about six or eight other things they did that didn't increase the mission of minorities there are many other things that they could do we're not trying to tell them how to run it i mean clearly one of the things they could do is even in the p s a i they recognize that by emphasizing it as they did it first to essay scores which are strictly composition grammar and that this is culturally biased as you can get get it makes it difficult for those who have gone through a need for secondary program to excel so they cut that score to three they could cut it to two they could they could take measures which were aimed at looking at potential deficiencies and initial education because you come from a home where there isn't a college educated parent and say we're going to take those further into account because they apply equally without regard to race so the many things they could do within a week that's just exactly the question i think at i can put the same question i suppose we do send it back to the district court and put in more evidence we told those we did that and suppose they start with a basic plan where we want to use race use in the twenty five percent of the holistic area we want to do that now they're using the chart and i've seen a chart of the factors that are one two three four five six seven eight nine ten eleven twelve you know you see that chart i've seen the chart and at the bottom of the chart in my list is the word race it says race r a c ok what kind of evidence in your opinion could they or anyone else with any roughly similar plan put in that would show in your view that this is constitution well i mean you have the example of just his pals opinion and backing and that says that if you're looking at the whole person and you're comparing individuals one to another to say who will best suit the educational needs of the class then you take account of a person's race it's part of the exercise you don't isolate it because if you look at justice backwards example he's got a and b to minority african american students and c and he says depending on where the class stands and the overall composition of this learning entity you might choose a under one circumstance ice versity you might choose b and  c without regard to race so he's looking at it as a way of looking at the totality of a person and all of their children's academic and otherwise so you go back you systems are not at issue here nor is the top tenet issue that that was accepted in this case no one challenged it so i'm saying you don't have to do the target so we have one you can do it on leaving you just dry you can achieve this small increment of under three percent in our view by any number of alternatives that would would would give this same boost these are the british racially available neutral term i have one i have one what you're not saying is you should look at the two folders and it's a kind of tiebreaker use race that you is ok now is that you said there are several others it would be helpful if you if you can summarize them in a sentence so i get an idea of what the others are you could you could give more emphasis to the socioeconomic factors in the score and that's not to use race i'm saying are a seat race i want to know which are the things they could do view would be ok because i'm really trying to find out not fatal in fact we've said ok not fatal in fact fine what are the things in your view that they could do so it is not  fact and what i've said first is they could shape their system more toward the back the system and move toward individualized consideration that's one thing that's not fatal in fact because this court endorsed the the view that justice powell took of the harvard what we're not talking about so called new pill thing we're talking about i mean the first question is you know why are you using it the why therefore you can be a fact you have to clarify the objective you have to show the necessity and you have to show that if you as as they do live within except over time a very small increment in a very small section of the class that you can't get done any other way because in the race is not the baseline it's as odious classification that's where we differ as i of whether there are any other me of achieving the racial balance that you're looking for right well just as palo indicated in baccy that that approach could be used where it's part of a greater else you have to establish first that it couldn't be done another way that doesn't take into account race such as expanding the ten top ten percent to the top fifteen percent that is her and is not just me justice scalia that's what this court said in the prior opinion that's what i they had to it has to be shown to be necessary of course that's true of all strict scrutiny in the courts and in the prior opinion that it's other strict scrutiny opinion such as our and where applicable here this is not detached it's not different strict scrutiny is a heavy burden there's no question about it that's why it's strict scrutiny is there any evidence that the holistic review being used by you to be operating as a quota i you know i am and we have not claimed that but since so much of it is masked and hidden but but of certainly if you are motivated as they said by demographics they want to get the number up it's certainly number driven and if you look at one thing this court said inquiries you have to have a basis to review this because you would like to make it and there has to be an end point so if you can't find your objective you have no end point but more important you look at what are they looking at what are they measuring each year and they're measuring numbers what those numbers to go up that's what they care about that's what the system does so whether it's a quota in the strict sense to where we have a top definite target their target may be equating with the population the high school correct and you have no class so what what specific  the direct one specified application we also asked for other just in further relief because at that point of the case we didn't know anything for certain to wit if she was admitted to be one thing if she wasn't weren't invited there would be other damages a rising from her failure to be admitted and we realize that was a separate issue we reserved on it we if he if the university should say ok the application fee and whatever else we add to  the damages we are seeking are were broader than that that was the specific item of damage that was pleaded they didn't challenge it under twelve ms fisher has not been admitted and she is suffer the consequences of non admission which include she went to an alternative universe and she had to travel as opposed to being in her home state there's certainly good information that within the state of texas  degree from the university of texas has consequences in earnings down the road and that's measurable and she doesn't have that benefit all of those elements which were not part of the case originally because we were trying to join in a way that would have  admitted now which is not admitted that changes the complexion of the case that's why we bifurcated that's why we reserve the right to amend within our broader play for all of justice and relief so in terms of just standing we have an existing claim they haven't paid us  they they threaten to do that on the first but titian for certain never did it they didn't tender it we have an existing claim we have broader claims that are in coate because we haven't yet reached the stage of litigating remedy and damages so mr chief justice may it please the court to pick up on the questions this morning i'd like to focus on three things one why the record supports the texas legislature is conclusion in two thousand and nine that the holistic planted issue was a necessary complement to the state 's top ten percent law to why the record shows that texas is holistic policy has had a meaningful impact on diversity at the university of texas in three why the rock record absolutely closes and claim that university texas stop did a quota with respect to the first question there's three principle ways in which the record shows that the planted issue was a necessary complement first as justice brian mention there is a significant portion of the admissions pool all out of state students all students from texas high schools that don't rank some of the best schools in the state and all students just below the top ten percent who are nevertheless great students who are eligible for admission under the top ten percent all and the fifth circuit found that without the consideration of race in the mix for those students admissions would approach an all white enterprise secondly the record in this case shows me the judge just the admissions of people the over the top ten percent that's right which is an important component of the class or are second and i think this goes to your point just school on that point can you determine which of the holistic admits he's would not have been in admitted if race was not added to to the determination ok this goes to the meaningful impact point and i think there are several ways to address it justice alito first what you can do is you can look in the increase in african american and hispanic holistic admissions after the consideration of race was added and what you find is is that in each year two thousand and five two thousand and six two thousand and seven the percentage of african american in and hispanics admitted and enrolled under the list of plan grew in fact there was a really my question my question was if you look at an individual person can you tell whether that person was admitted because solely because of race whether that person would not have been admit it were it not for the fact that the person was an african american or honor i think given the context realize an individual has a nature that in court that's going to be difficult but i think the record nevertheless answers your question because you can show a market increase in diversity under the planet issue i just i just explained to you how the record confirms that  stic admissions of african americans and hispanics increased markedly in each year if you look at student body diversity overall african american rollman increased by two but doubled from two thousand and two to two thousand and eight from about three percent to about six percent what one of the things i find troubling about your argument is the the suggestion that there is something deficient about the african american students and that hispanic students who are  it under the top ten percent plan they're not dynamic they're not leaders they're not change agents and i don't know what the basis for that is ok it's really it's based on the terrible stereotyping  just the basis for that it's exactly the opposite this court has said time and again that you can't assume that minorities think alike just because they have the same skin color with the university of texas does is it considers it takes into account the fact that people who come from different experiences different backgrounds are going to have different contributions to the class if you had a situation where all the out of state admits or most of the out of state admits were coming prominently from western states then the university of texas and any university would try to get out of state admits from other parts of the country because it would want the both but for maybe a myth upper hand you the question the answer but you're the one that the race can be relevant in an answer to justice is question that wouldn't stereotype in that it seems to me that you're in for no is no what stereotyping your honor is saying that just because you get a sufficient number of blacks or hispanics under the ten percent plan means that you can't look at the class holistically and say we're not getting a variety of support perspectives among african americans or hispanics but what is the basis for saying that that's what i don't understand is kind of the assumption if that if a student if a black student or a hispanic student has admitted it as part of the top ten percent plan it has to be because that student in have to compete against very many whites and and asians in the high school class it's a really premonitions stereotype it's not a stereotype at all your honor it's based on the undeniable fa about the manner in which the top ten percent plan operates the top ten percent law was enacted in response to hopwood in there's nothing there's no challenge the law in this case admits many well deserving students but the fact is is that the way that the top ten percent law admits minority students is by meeting those students from a lower performing racially identifiable schools and the what the reason we know that is because if you look at the bill analysis is cited by justice ginsburg and her dissent last time we were here that analysis by civically says on page four because of the persistence of segregation in this state a minority students will be admitted under the tongue and i don't doubt that it does that that is one of the things that it does and i would have thought that that would be something that you would regard as beneficial week that the for the reason for adopting affirmative action in the first place because there are people who have been severely disadvantaged through discrimination and and of lack of wealth and they should be given a benefit and admission the university one of the things that it does but it's not the only thing that it does your honor the university of texas applauds those students it wants those students those students are admitted through holistic review as well nevertheless university can look at an incoming class and determine that not all the perspectives among a particular class of students is being represented this is straight out of the harvard plan and bach well this goes back and says a statistic that jumped out at me which seems  contrary to the stereotype on which the fifth circuit panel proceeds and on which you proceed of the african american and hispanic students who were it made it under the top ten percent plan twenty one percent had parents who have either a bachelor's degree or a four year degree and for the holistic admits he's african americans and hispanics it's twenty six percent this is from a class of two thousand and eight so there isn't  it seems to me it refutes the idea that all of these minority students who were admitted under or most of them admitted under the ten percent plan just from these predominately overwhelmingly black and hispanic schools with poor students it's just doesn't seem to be true your honor we've never claimed that all of them do that's a straw man argument but if you look at the data what you would find in particular look at the two thousand and eight profile that we cited in the last brief on page thirty three you do find that on balance there is a difference in backgrounds of the students african american hispanic students coming in through the holistic plan versus the top ten percent plan and that's no surprise given the obvious purpose of the top ten percent plan the purpose of the holistic review plan is to take into account all consideration you know we can you say this let me read you two phrases from fisher what the first phrase says this the decision to pursue and fisher one obviously put together a court of people who don't agree necessarily on affirmative action generally we agreed on those words words one the decision to pursue the educational benefits that flow from student diversity is in substantial measure an academic judgment to which song but not complete judicial deference is proper ok now words number two the university must provide a quote reasoned principled explanation for the academic decision to pursue diversity your plan is pursuing diversity among the twenty five percent who are not admitted under the top ten plan your principal reasoned explanation for that academic decision is your honor it's set forth in the two thousand and four proposal which is in the supplemental joint appendix it's elaborated by the deposition testimony and let me give you a few pieces that number one is is the university make clear it was pursuing the educational benefits of diversity in the broad sense specifically recognized by this court this is on pages one through three of the supplemental to an appendix number to the university made clear that in it judgment the top ten percent plan in particular as it grew to crowd out the class was compromising its occasional ject as that's on page twenty five a and thirty one a of the supplemental joint appendix number three the university made clear that because of the decrease in student body diversity under the very race neutral policies that are proponents are asking this court to impose that additional measures were necessary to make sure that it was achieving it educational objectives all of that is laid out and far more detail frankly that it was in grouper or that was in the harvard plan it's amplified by the deposition testimony in particular look at the testimony of mr and mr walker and i can elaborate that and that if you would li and that you're talking about the two thousand and four plan yesterday where one of the things that said is that you would review the plan every five years it has not happened it absolutely has in the record your honor it's established that we have reviewed it on  we reviewed it on a five year basis i was personally how did you manage your part of that how did you measure whether or not the plan was working your honor under the review that you undertook we would look to a number of dead what did you what did you know to you and i'll answer that question  would look both to student body and roman we do look to classroom diversity we look at feedback from students from faculty after all this is an academic judgment is this court said in the fisher case and certainly it said in the  that you know if the faculty thinks we're doing great we must be doing great i mean the facts are the facts i don't think we give the faculty a leg up on on on what the facts are and look at the facts your honor in two thousand and two you had two hundred seventy two african american rowley's of a class of eight thousand even judge garzon recognize that no eleven of his decision that the university of texas had not achieved its critical mass or educational benefits in two thousand and four and so i don't think that that seriously debatable if it is then we should have a an opportunity to put in more evidence well when you're talking about the time good or sad that we did not expect these sorts of programs to be around in twenty five years and that was twelve twelve years ago are we going to hit the deadline  it's going to be done in your view in twelve years your honor i'm not here to give you a date but what i would say is this there are systematic problems that these problems that these policies are attempting to address including the test score gap between between african americans and hispanics and the record in this case overwhelmingly shows that without the addition of race student body diversity suffered particularly among african americans i understand i don't know whether that's a yes or no but but it was important in the gr that these were temporary that is necessary temporary expedients because we're talking about giving you the extraordinary power to consider race in making important decisions that we don't do that as matter and we appreciate that and so  grider to say look this can't go on forever twenty five years and when do you think your program will be done your honor is soon as it is we can achieve the same sufficient numbers for the educational benefits of diversity without taking race into account we will no longer take race into account that the strict scrutiny inquiry focuses on whether or not there are race neutral alternatives which i think really is the way to police this and in this case because it's backward looking you look to whether or not the university policies in place for seven years this is a distinct case you have a record of seven years of trying the race neutral turners that they're proposing top ten percent plus race blind holistic review the record it tells you what happened what percentage of the class is  under the policies that they're asking this court to impose and in particular under african americans where you had evidence of glaring racial isolation certainly in the classroom where ninety percent of the class is the most common size or is either a one african american on that the subject i don't know of any you haven't mentioned in your briefs anything that the university of texas has done to increase racial diversity at the classroom level other than this admissions program and i mentioned during are your friends argument a way in which you could determine whether the top ten and made to us are any more or less likely to enroll in classes small classes where there is a lack of racial diversity than the wholistic of bitties and i don't see and you haven't made any effort as far as i can tell to measure that well let me answer that in two ways one doubling the in roman of african american students which happened from two thousand and two to two thousand and eight is going to increase diversity in the classroom and we've looked at that and it has secondly with specked to diversity among particular majors university does take place to consideration of where which schools students are admitted to as well so its policy addresses that concern as well but what the record does show you on are conclusively i think is that diversity languish university of texas in the period where we had race blind holistic admissions plus the top ten percent and that the planet issue here was necessary to supplement that with texas legislature found i but i don't you could have determined whether this is whether the admission of the addition of race to the holistic equation has done anything to increase classroom hat and you haven't done that your honor we've looked at that important in the in the fight over and has to as comparing comparing this goes back to that your underlying claim that there's something deficient about the top ten in mid teens and i and maybe if you have you have evidence that they are less likely to to enroll in the classes where there's a lack of classroom diversity there's a different breakdown there you want to but i think there's two dimensions to this diversity issue one is just the glaring racial isolation that existed particularly among african americans and then to is an effort through the addition of a list a group of you to admit minorities from different viewpoints experiences and perspectives that gets back right to the core the essence of the diversity embraced by this court and pocky if you look at the harvard brief case page seventeen this pacifically says our interest in the educational benefits of diversity would not be met if all of our minority students were were coming from depressed socioeconomic well i think that's where i am looking for evidence that that's true and i would like it is that if you what incident have you looked at the top ten percent enmities for example to see how many of them are leaders which is certainly and certainly a legitimate factor to look for students who are leaders at do you say whether they're just not very many leaders here these are students who all they do is study you under snow evidence of that as far as i can tell i don't think it's seriously debatable but if we need evidence on this let us put it into the record that a class selected by the hol consideration of numerous factors is going to be more diverse in the way that promotes the university's educational interests than a class selected by a single factor and what i'm going to have that's not the question it's whether students are selected under the holistic process without giving extra points because of race and there's two problems with that one they're not the minority students are not going to be selected it's going to become as the fifth circuit found essentially an all white enterprise that's the first problem and then the second what do you tell me  holistic process if race is not expressly considered will not result in any minority students no it's not zero your honor but take two thousand and two for example two hundred seventy two african americans out of a class of eight thousand that's glaring racial isolation university of texas concluded that was unacceptable and i don't think that that's seriously debatable but again if we need more evidence on why having ninety percent of our classrooms with the most common size with zero or one african american doesn't distance of diversity are in that situation you're on it we can talk about different classes but this court has emphasized as accepted and baki inverter and i think it accepted again in fisher one that student body diversity is a compelling interest or friends do not two thousand and four proposal and throughout caricature of the argument you're making it student but it classroom diversity if that's what you're focused on was one aspect that the university looked to the universities being hit by both sides here maybe that's fair because of the nature of strict scrutiny but on the one hand we're going to look to prove the way in which diversity was lacking in diversity and then on the other hand every time we point to something our opponent sees a and say aha that's your objective are objective is the educational benefits the diversity in the very way that this court has recognized for decades now the other what what is just can i do my i was going to ask what evidence would you put in if you had been successful in your motion to remain and feel that there are deficiencies in looking on a more granular basis between the nature of the holistic admits there emitted the unique skills qualities talents that those admits bring is change agents and bridge builders we can put that evidence in we can put in a you but you asked for the remain and in my guest and was what evidence did you propose to put in if your motion had been granted your honor we didn't we specifically pointed to evidence on standing and we talked about that the court would like to supplement the evidence in other respects and i think frankly we would be entitled to a rematch if you look at the grid or case for example this court rejected the argument that the percentage plan was an adequate substitute for the listed consideration of race it didn't require evidentiary findings on that but if the court thinks those findings are necessary then the university of texas can put in certainly putting additional evidence in the record showing why these holistic students selected across the broad diversity recognised by baki contribute meaning to the class in this issue i don't know what i mean i don't know what that proves sure i am sure that there are holistic and mitty's who were great students they made a wonderful contribution to the university i don't know whether you're going to be able to determine that they would have not they would not have been admitted if race had been taken into account they probably they would have many of them would have been maybe all of them but beyond that what is to say that there are not comparable students who were among the top ten percent mitty's i bet there are i think certainly you could clued your honor that were you have all out of state students all students from the best schools in texas that don't rank students who fall just below that ten percent number also great students if we're not getting adequate diversity out of that class special class of students we're not meeting or educational ject is if you have if you have doubts about whether or not records this is the fundamental problem that i think justice alito is pointing to  your sort of talk with past each other so maybe i'll explain his view i can use the help i think i'll explain what his view is he seems to think that you didn't study the ten percent at mitty's and now before and just make to see whether that group was diverse in and of itself whether you had enough people within that group that were change agents that were a hat were not just poor people but people with college educated that plan created that you should have filled in the holistic looking so he thinks it's fatally flawed all right because of that so that's his view i think so  let me let me answer i don't know i said if i said first we did look at that we had seven years of experience under the race blind holistic admissions policy with the university found this is the page thirty one and twenty five  grow and crowd out more of the admissions pool the university was not meeting its educational objectives that that's what it found specifically stated then on page thirty one a of the supplemental join the pending we also knew it it's interesting the texas legislature found that the holistic plan was a necessary complement the test texas district court judge did the texas court of appeals judge and his colleague did and all with all of them recognized is the obvious way in which the top ten percent plan operates with respect even if you did not is right there and worse if if you did not have the top ten percent plan but you did have the program that you're advocating for here a holistic review would you have a better or worse chance of achieving the diversity you seek your honor i think the first thing i'd like to say is that a defense a different way and i don't mean to dodge the question by that but what i would say is if that's a meaningful difference then this plan is it is in an even stronger light than the plan and blocky in the harvard plan because university of texas has heated this court's message it's taken three quarters of the class that it selects through a facially race neutral system the top ten percent law and what we're here for debating is whether or not it can compliment that policy by taking race into account for a quarter now it may actually be that the university could achieve more diversity through the pure group or blocking style plan but we think working with the texas legislature we've come up with a hybrid hybrid plan that works together to vote to both address this court's concerns about using race too much in the process and address the university of texas is legitimate core academic concerns about compiling  class that's diverse and all the ways that are appreciated by bach if i could read one aspect of the deposition testimony here this is from this issue on page two fifty three day of the joint appendix and she explains why the top ten percent alone is not sufficient what she says is quote considering an applicant on the basis of just their test score and classroom leaves out all of that life experience and circumstantial experience that an applicant faces it's also important not not only to how they develop in the type of student they are but also to what they contribute to our campus that's what the holistic policy ads if you exclude race from that mix you not only aren't looking at the individual and all its respects and race still does matter in austin and across this country  but you're preventing the university from rounding out its class from complementing the single minded way that the top ten percent lot achieve its diversity objectives in a way that is narrowly tailored to its interests which this court has found compelling all of the colloquy so far indicates to me that if you had a remained you would not have put it much different or much more evidence than we have in the record right now is that correct no it's not your i mean look we think that the record is sufficient we think that the fifth circuit got it right but but to be clear we can certainly put in plenty of additional evidence i mean there was a trial and rooters your honor pointed out your decision in fisher one there's been no trial here there is it a minimum if our evidence doesn't cross the bar on strict scrutiny at a minimum we put in trial issues of fact on whether or not the holistic plan was unnecessary offset whether or not the university was cheating its educational jakob's in an environment in which you had two hundred seventy two african american students rolled out of an incoming class of eight thousand in environment in which ninety percent of the classrooms and most common sided so why can't we make those inferences from the record i mean if you had to try to  the court can it's a summary judgment issue but it's another thing i think to overstep the conclusions of the district court and the court of appeals here and i think it's particularly relevant here when it comes to the operation of the top ten percent law our friends have to challenge the fact that the fifth circuit  discussed the way in which it operated saying that that's outside the record if it is let us put all that evidence directly in the record but they've never disputed the way in which the top ten percent law operates what i'd like to say to is if this court wheels that university of texas can't consider race or if it was universities that consider race have to die a death of a thousand cuts for doing so we know exactly what's going to happen experience tells us that university this happened at the university of texas after the  hopwood case diversity plummeted especially among african americans diversity plummeted at selective institutions in california berkeley and u c l a after prop two hundred nine and that is exactly what's taking place today at the university of michigan now is not the time and this is certainly not the case with there are there are those who contend that it does not benefit african americans to to get them into the university of texas where they do not do well as opposed black scientists in this country don't come from schools like the university of texas so there's a court from lesser schools where they do not feel that they're that they're being pushed ahead in classes that are too too fast for them this is you know i'm i'm just not impressed by the fact is that the university of texas may have fewer maybe it would have fewer and maybe some you know when you take more the number of blacks really competent blacks admitted to lesser schools turns out to be less and i don't think it it stands to reason that it's a good thing for the university of texas to admit as many blacks as possible i just hope that this court heard and rejected that argument with respect justice glee in the greater case of case this our opponents haven't asked as court to overwater you look at the academic performance of holistic minority minutes versus the top ten percent admits over time they fared better and frankly i don't think the solution to the problems with student body diversity can be to set up a system in which not only are minorities going to separate schools they're going to inferior schools i think what experience shows that texas california michigan is that now is not the time and this is not the case to roll mr chief justice in may please the court i'd like to make a point about the compelling interest in corey in light of what this court said previously in fischer and i'd like to make a point about the process aspect of the now tailoring inquiry in light of what this court seven official which i believe justice kennedy will address your concerns about whether race is determinative here and then i'd like to move on to what i think this case comes down to which is whether the university has made a sufficient showing of need to consider race in its process but before i make any of those points mr chief justice i can provide some specific detail in response to the question you asked earlier related to the parents involved point here are the numbers with respect to african american students admitted through the holistic part of the program in two thousand and four which was the last year before race was expressly considered that number was one hundred forty one admitted through that number and that was the high watermark really of the period of holistic review with arms race in addition of the this of the ten percent correct this is just a holistic numbers that number then moves up to one seventy six the following year to two twenty the year after and that to sixty two in two thousand and seven so the number of holistic admissions almost doubles and that results in an obligation which is one issue that we haven't looked at is how do you tell how many of the right would have been admitted if their race were not and you're right you're right that you can't tell for sure but you do have a pretty good benchmark i think given that you have a number of years without considering race where one forty one was the high water mark and so i thought wait a minute the next two years you re cited it was going up even when race was considered so you could have said there's a fluctuation process done at the university of texas which may militate against the admission of african american and hispanic students for a and a stent simply race neutral reason then that is that as i understand it standardized test scores count pretty heavily in that process one of the things the university says it's looking for is students with highest eighty scores who are not in the top ten percent of their class and there are many who think that s scores an act scores are culturally biased so if you put less emphasis on that you might not have the numbers that you just reciting well it's kind of rather strange that we construct a process that may  disadvantage african american and hispanic students for an ostensibly race neutral reason so then we have to add race and as a special factor to counteract that that's where i guess what i'd say about that your honor is that in good or what the court specifically held was the university is allowed to make those kinds of judgments in seeking to advance multiple objectives to maintain an academic environment of excellence and to diversify the student body but i thought and i thought the record showed that the top ten  higher grade point average than the holistic african american and hispanic and ninety's the s a t s scores are about the same i'm not sure what i mean once they get to the end once they get to that the s a t s supposed to predict how you're going to do in a college and i thought the record showed that the students who have lower scores but did better as a measure by measured by how high school rank did better at the university of texas is not is that the kills you know i'm not sure what the answer to that is your honor but this call goes to the compelling interest in corey and let me focus on that what the what the court said last time around is to satisfy the compelling interest inquiry the university has got to articulate a reasoned principled explanation for its decision to consider the educational benefits of diversity in a manner that this court has found to be constitutional and substantial the receipt texas has met that standard is articulated exactly the same educational benefits of diversity at exactly the same level of specificity that this court held constituted a compelling interest in the greater case at page three thirty it's exactly the same and the the principal argument that my friend mr ryan makes challenging that is well actually a lot of that is post hoc rationalization in particular the effort to find what you call qualitative diversity diversity within diversity is all post hoc rationalization that is simply not so and if you look at page one of the supplemental joint appendix the first page of a two thousand and four proposal that the university specifically says that what it's trying to accomplish is to create a diversity of perspectives among minority students says it again it page twenty eight and that proposal the director of admissions declaration page forty three of the joint appendix says that it says it throughout so that there's no there's just no universities do make progress on this and i think you do get to a point where you create a virtuous cycle and i think it does work and i think that there's there's and i think there's ample reason to believe that it does work and i think the key point here with respect to compelling interest is th really is in terms of having the educational benefits diversity that's in the heartland of what the court has said is the area in which the universities expertise and experience deserves deference now if i could go to the process point with respect to just before  you said i agree with you of course that is what the court said the reasoned explanation and it also said that this is a matter to which this court will give some but not complete deference to what the university  what you're talking about is the need for the program in addition to that and this is what i'd like you to focus on because there could be a question of whether to send it back for more evidence or not so in looking through the records so fa discussions described the conclusions of the faculty members and the admissions officers and others that you did and you did need affirmative action in the twenty five percent of the not of  holistic part not given that that's there and i found nothing to the contrary is there a need for another i mean this is a loaded question but i am curious if you say yes because i mean you know there may be something that you should put in as well you may think it would help to put something in it you may think it's not necessary but just to be safe what do you think is that affidavit the relevant one are there others believe that's the affidavit from the director of admissions and it is highly relevant and there is other information in the latter part of our brief we've documented it we think you know our view and we argued for a firm as we think it's sufficient but if there is doubt i do think the additional kind of information that might be developed in this case would be to look at the kinds of questions that the chief justice was actually asking about how to how did the how has the program worked in practice over the period of time in which it's been implemented and i think that would be additional relevant information that might help make that judgment if i could go to the process point and then i will return to the need point on process what the court said last time around in this case was that the court had to insure itself without deference that the process provided for individual lies consideration in that race the predominant again the university of texas is plan has every one of what the court in good or at page three thirty four said where the hallmarks of a narrowly tailored plan no quota everybody competes against everybody else no automatic award of points modest factor and in addition and this goes to your question justice kennedy about whether there's an argument here that race is determinative texas is different from the university of michigan's law school plan and every one of the four ways that your honor identified as as being potentially troublesome in making race determinative unlike in michigan here in texas the percentage of african american hispanics admitted does not mean or the percentage who applied it's different unlike texas the number an excuse me unlike michigan the number the texas of admissions fluctuates year over year it's not the same every year unlike in michigan the bulk of hispanic and african american students in minot don't come from a small subset of the pool that's admitted after most ardent it based on grades and unlike in michigan the there the admissions officers don't monitor the process all the way along which where does your honor suggested perhaps create trying to address process and i'll go right now to need which i think is is i really do think the you're right mr chief justice that's what the case comes down to and i will answer your question directly but i first want to make a point about how you know how you shouldn't do it and you shouldn't do it the way the petitioner has suggested you should do it with petitioner has said is that the in order to in order to assess need and the only way to make meet the need question of the strict scrutiny analysis is for the university set a quote demographic goal that's the petitioners language and then test whether or not they've made that go ok so how and how did so should they do it so the and the reason of course that that's no good is that that's just a catch twenty two i understand you disagree with their proposal so here's how you should do it and we laid it out in our brief we think that the approach we think that approach is always going to fail in fact because if they don't they feel secure and if they know you don't agree with their approach i promise you i'm go answer i just think these points are important then and so the with respect we think our quote is faithful to fisher because it's not always fatal in fact what we say is that it's not and a critical mass numerical kind of analysis and we say that what you do is you start with the university's articulation of the educational benefits it's trying achieve you were choir the university to state in concrete terms what success will look like you would then evaluate the evidence and analysis that the university relied on in order to make the judgment that it isn't where it needs to be in there and needs to consider race trying to get it to more and so retention rates are racial incidents going up and down up or down on on campus and frequency you know they could be a whole list of them which you would look at those you would look at you would look at those you would look at the university's analysis of those and  you make a judgment whether the university substantiated its case in the burden of courses on the university they've got to come in and convince you that they've substantiated their case that they need to consider race and they were they can do that with the evidence  events that occurred after the suit was brought well i think i would i'm not quite sure how that works sure i think that they can and as happened in quitter i think they have to the interests that they rely on have to be the interest that they contemporaneously identified when they adopted the program i don't think there's an issue here on that but i think the evidence can include evidence of how things are working in practice for example if they adopt the system and it does result in improvement that does seem highly relevant  and consistent with what the court held in cooter was appropriate evidence the reason i think it's a matter of concern is i heard from mr gardner a lot of numbers he said look this is why it's needed and you know we will know we're doing better when the numbers look better and i just wonder whether the idea of surveys i looked at one of the surveys i don't remember this record or the the prior one and i have to say it was kind of sophomore i mean do you feel that you've had enough interactions with i mean that was this is consideration of race it's a very serious matter and to pass out some survey and see i don't think is inadequate it certainly wouldn't be adequate by itself it might be probative evidence in combination with other probit evidence but you know but the question of classroom composition is hard evidence and at some level demographics are hard evidence to mr chief justice we're talking about the african american population at the university of texas and at austin you're talking about a population of three or four hundred kids in a class of six thousand i think the idea that there's a material risk of race so isolation in that situation is quite strong the idea that there's a material chance that lots and lots of students are going to go six under is going to make the difference it it might well i wouldn't feel isolated which is why it will make a significant difference and if i could in the time i have remaining i'd like to just try to refocus the court on the importance of what's at stake here as we told you in our brief our military leaders believe that it is imperative that we have officer corps that are not only diverse but capable of leading a diverse military not only for affected in this but for the very legitimacy of sending our troops into harm's way what do you think that the african american or hispanic students who were admitted under the top ten percent plan make inferior officers when compared to those who were admitted under a holistic review no i don't not at all but i think that they are that they are o t c graduates from the university of texas make a period or officers to those who who graduate from let's say texas a and m or texas tech just really think about that justice alito i think that we want to make sure in this military example is only one of the important interests here but with respect to that we want to make sure not just that there are strong african american and hispanic candidates in our program but that everybody who graduates from the r t c program the university of texas white black asian hispanic everybody knows how to lead effectively in a diverse environment in which they're going to be leading diverse troops that's the interest and you not have to start doing that porton but to come back to my first question is there anything to suggest that the top ten percent students are less likely to  c or when they do they're not as good as the as the wholistic in mitty's you know i think with respect to the mercy of texas in particular but also you know what the court's going to say in this case obviously is going to apply to then should every university in the country and this is an important interest for the united states and generally that when you think about what's at stake here that the interest in ensuring that we have military officers who can lead a diverse military force is critical the interest in having l enforcement officers who are not just diverse but who can operate effectively with every racial and ethnic community in harley chart situations is critically important corporate america has told you that having a workforce that is able to function effectively in diverse and diversity to asians is critical and what i would just say conclusion is that these are the considered judgements of people who actually have the responsibility to ensure that the vital functions of the government protecting the country with the military and with law enforcement and the vital functions of commerce these are the people actually have to make sure that those functions are carried out and this is their considered judgment and i briefs in this case are like the briefs in and to me that does suggest that people in the universities and else who are worried that we will to use your colleagues expression kill affirmative action through a death we promised in fisher one that we wouldn't that opinion by seven people reflected no one's views perfectly but that's what it says not fatal in fact ok that's what i'm focusing on it seems to me there are two parts to that whether we have to send it back for another hearing or not part one you've dealt with that's is there a neat a matter which fisher one says we will give  some but not complete deference to the university and as you say we have you went through that there is a second part which i want you to address the second part in fisher we said there is no deference that in the plans of groot or and the plans of buckie those were ok in respect to narrow tailoring because they did compare the students one after another and use now what is there in this record that will support the view that what texas has done in respect to narrow tailoring is no worse than perhaps even better than what happened in a group or so i thought i would point your honor specifically to the declaration and pages forty three and forty four and forty four a the joint appendix of the missions director in which he explains the way race is considered in the university of texas system and that explanation says expressly at page forty three that race is considered in exactly the same manner and given exactly the same consideration as every other special circumstances factor that the university considers as part of its holistic review that i think that shows you that actually you know more about the way this program chief justice let me first indicate that one of the questions that's been asked repeatedly is look what impact did the use of race actually have judge garzon in this is that appendix two hundred tried to make an estimate because you can only make an estimate because you t didn't know and they don't know now his estimate was that a very small number and it's it's it's in his opinion it's it's not only by percentage but it's by number and that number is numbers he assumed at the outside that any of the admits that were actually african american or hispanic outside the top ten he said let me take that assumption and see what it would add and he said it would constitute less than one percent to two point five percent respectively and of the entire six thousand and three and twenty two person case like doing what he did not can i this is appendix two fifty two thirty one a it is judge garza's original dissent this is this is when and he repeated essentially the same point but he calculated and he made different assumptions depending on how many of the admissions in the holistic program one would assume would be different because of race because no one knows that and that's part of this and clearly one and i can read you these numbers but you can read them yourself it's a very small number on his most realistic estimate was that it would yield only fifteen african americans and forty hispanic students in a class of six thousand so we're talking about a very small effect even with  that actually exists in one point is it small the second point equally important is no one knew because they didn't study it and then and then we get the same point on this complementary which was the big theme of the fifth circuit oh  complement what does that mean one sentence you've got to have some plan if you're going to cap the top ten and seventy five percent is necessary to do something but that doesn't make it unnecessary complement when you really look at the fifth circuit said they said it's based on two assumptions won the top ten are drawn from these minority high schools where do they come up with that i never studied the pattern of the top ten admits how do you know that a hispanic or an african american student can't be in the top ten at what they call an integrated high performing high school that's a stereotype like i'm what you're saying basically is is this is what the fifth circuit concluded in which the school basically agrees ok if you don't consider race then holistic percentage whatever it is is going to be birch really all white and that and go right and that and there's something that has no basis in this re they need to keep certain s a t or whatever that's called a i index that has to be high because of the quality they want to keep the school at that does discriminate against blacks on some levels because the difference in numbers are high so if you have something like this you're what you're saying basically is and what he's proposing is change your educational needs across the board and focus in only on race and make sure that your school is black hispanic or whatever the numbers that are going to reduce its educational quality that's basically what you're arguing is it no and to be fair i mean first thing i was just pointing out is that to get to the conclusion of the fifth circuit you have to first assume the pattern of inmates in the top ten where they come from which was never established in the record never studied the second is that you have to assume that those coming from all students coming from these integrated high performing high schools don't point if we're just talking numbers then you have to show the compelling need for more numbers so that one of the reasons for defining a compelling need is that you have to then look at necessity in terms of the need so as a group or what they said was we have insufficient numbers of minorities provoke the the appropriate dialogue when we look at the class as a whole we think we can do better if we introduce different points of view it's very individualized it's a small class so you can then say increasing numbers which they were certainly after you know from three to fourteen will meet that compelling need since they never bother to administer you know to find the needs it's really hard to say what they were after and why numbers would or would not satisfy and whether the numbers they were generating which included fifteen percent of the so called holistic admits it wasn't all white enterprise why that wouldn't work is the key point is you have to come to the court with a record you can't make it up later because that would say do what you want and when the time comes make it up that's not no way to litigate and in this case they said we're ready for summary judgment we've put in everything we need if you look at their specific proffers and court of appeals they said they wanted to take discovery and even judge taken by them their best friend said from who was miss fisher know about this when you going to take discovery about it he found no need in this court all they say is we'd like to reiterate the benefits of diversity but those accepted and we'd like a few testimonials about students admitted holistically without knowing whether they were the beneficiaries of race or not you can't you can't litigate that way thank you your honor thank you counsel the case is submitted