IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50822

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; BARRY D.

BURGDORF, Vice Chancellor and General Counsel 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

Appeal from the United States District Court

for the Western District of Texas

United States Court of Appeals

Fifth Circuit

F I L E D

January 18, 2011

Lyle W. Cayce

Clerk

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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We consider a challenge to the use of race in undergraduate admissions at

the University of Texas at Austin. While the University has confined its explicit

use of race to the elements of a program approved by the Supreme Court in

Grutter v. Bollinger, UT’s program acts upon a university applicant pool shaped

1

by a legislatively-mandated parallel diversity initiative that guarantees

admission to Texas students in the top ten percent of their high school class.

The ever-increasing number of minorities gaining admission under this Top Ten

Percent Law casts a shadow on the horizon to the otherwise-plain legality of the

Grutter-like admissions program, the Law’s own legal footing aside. While the

Law’s ultimate fate is not the fare of this suit, the challenge to the Grutter plan

here rests upon the intimate ties and ultimate confluence of the two initiatives.

Today we affirm the constitutionality of the University’s program as it existed

when Appellants applied and were denied admission.

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.

2

Proceeding with separate phases of liability and remedy, the district court, in a

thoughtful opinion, found no liability and granted summary judgment to the

University.

 539 U.S. 306 (2003). 1

Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 590 (W.D. Tex. 2009) (citing

2

U.S. CONST. amend. XIV, § 1, and 42 U.S.C. §§ 1981, 1983, and 2000d et seq.).

2

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The procedural posture of this case defines the scope of our review. There

are no class claims and both students deny intention to reapply to UT. It

3

follows that Fisher and Michalewicz lack standing to seek injunctive or forwardlooking declaratory relief. This principle is rote. To obtain forward-looking

4

equitable remedies, a plaintiff must show she faces imminent threat of future

injury. Without that threat, these two applicants only have standing to

5

challenge their rejection and to seek money damages for their injury.

6

Our focus will be upon the process employed by UT to admit freshmen

when Fisher and Michalewicz applied for the class entering Fall 2008, looking

to earlier and later years only as they illuminate the rejection of these two

applicants. Our task is burdened by the reality that we are examining a

7

dynamic program administered by a large university subject to government

oversight. Indeed, the first of UT’s periodic five-year reviews was to begin in the

fall of 2009, a review that must engage an array of variables, including an everpresent question of whether to adjust the percentage of students admitted under

the two diversity initiatives.

 Like all Texas residents, Appellants could attend UT Austin as transfer students if 3

they first enrolled in a participating UT system school and met the standards required by the

Coordinated Admissions Program, discussed in greater detail below. Instead, Appellants

permanently enrolled at other institutions.

See Defunis v. Odegaard, 416 U.S. 312, 319 (1974) (per curiam) (dismissing for lack 4

of standing a suit that challenged a law school admissions policy because the plaintiff would

“never again be required to run the gantlet of the Law School’s admissions process”).

Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 201–11 (1995); City of L.A. v. Lyons,

5

461 U.S. 95, 105–10 (1983).

See Lyons, 461 U.S. at 105–07. 6

Cf. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 711 n.1 7

(relying on data from before the district court record closed, even after newer data had become

available).

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I. GRUTTER V. BOLLINGER

We begin with Grutter v. Bollinger because UT’s race-conscious admissions

procedures were modeled after the program it approved. In rejecting

constitutional challenges to the University of Michigan Law School’s admissions

program, Grutter held that the Equal Protection Clause did not prohibit a

university’s “narrowly tailored use of race in admissions decisions to further a

compelling interest in obtaining the educational benefits that flow from a diverse

student body.” Mapping on Grutter, UT evaluates each application using a

8

holistic, multi-factor approach, in which race is but one of many considerations.

In granting summary judgment to UT, the district court found that “it would be

difficult for UT to construct an admissions policy that more closely resembles the

policy approved by the Supreme Court in Grutter,” and “as long as Grutter

remains good law, UT’s current admissions program remains constitutional.”

9

Laying aside the Top Ten Percent Law, that observation is indisputably sound.

10

A

Grutter embraced the diversity interest articulated twenty-five years

earlier by Justice Powell, who wrote separately in Regents of the University of

California v. Bakke. This vision of diversity encompassed a broad array of

11

qualifications and characteristics where race was a single but important

Grutter, 539 U.S. at 343.

8

Fisher, 645 F. Supp. 2d at 612–13; see also id. at 613 (“If the Plaintiffs are right,

9

Grutter is wrong.” (internal quotation marks omitted)).

 In practice, the admissions systems of Michigan Law School and UT differ because

10

UT’s automatic admission of the top ten percent of Texas high school seniors “largely

dominates [its] admissions process.” Fisher, 645 F. Supp. 2d at 595. We discuss the impact

of the Top Ten Percent Law in greater detail below.

 438 U.S. 265, 269 (1978) (opinion of Powell, J.). 11

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element. The Michigan Law School designed its admissions program to achieve

12

this broad diversity, selecting students with varied backgrounds and

experiences—including varied racial backgrounds—who would respect and learn

from one another. The Court explained:

13

[The Law School’s] policy makes clear there are many possible bases

for diversity admissions, and provides examples of admittees who

have lived or traveled widely abroad, are fluent in several

languages, have overcome personal adversity and family hardship,

have exceptional records of extensive community service, and have

had successful careers in other fields.

14

The Law School’s policy also reaffirmed its “longstanding commitment” to “one

particular type of diversity, that is, racial and ethnic diversity with special

reference to the inclusion of students from groups which have been historically

discriminated against, like African-Americans, Hispanics and Native Americans,

who without this commitment might not be represented in [the] student body in

meaningful numbers.”

15

In an effort to ensure representation of minorities, the Law School sought

to enroll a “critical mass” of minority students, which would result in increased

minority engagement in the classroom and enhanced minority contributions to

the character of the School. The Grutter Court endorsed this goal, holding that

diversity, including seeking a critical mass of minority students, is “a compelling

state interest that can justify the use of race in university admissions.”

16

That the concept of critical mass bears a simple but deceptive label is

evidenced by the division of the Justices over its meaning. In his dissent, Chief

See Grutter, 539 U.S. at 325 (citing Bakke, 438 U.S. at 315 (opinion of Powell, J.)).

12

Id. at 314.

13

Id. at 338 (brackets and internal quotation marks omitted).

14

Id. at 316 (internal quotation marks omitted). 

15

Id. at 325; see id. at 329–30. 16

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Justice Rehnquist saw critical mass as only the minimum level necessary “[t]o

ensure that the[] minority students do not feel isolated or like spokespersons for

their race; to provide adequate opportunities for the type of interaction upon

which the educational benefits of diversity depend; and to challenge all students

to think critically and reexamine stereotypes.” On this view, critical mass is

17

defined only as a proportion of the student body, and the percentage that suffices

for one minority group should also suffice for another group.

In contrast, Justice O’Connor, writing for the Court, explained that critical

mass must be “defined by reference to the educational benefits that diversity is

designed to produce.” Her opinion recognizes that universities do more than

18

simply impart knowledge to their students. Synthesizing, we find at least three

distinct educational objectives served by the diversity she envisioned:

1. Increased Perspectives. Justice O’Connor observed that

including diverse perspectives improves the quality of the

educational process because “classroom discussion is livelier,

more spirited, and simply more enlightening and interesting

when the students have the greatest possible variety of

backgrounds.” In this respect, Grutter echoes Justice

19

Powell’s recognition in Bakke that it is “essential to the

quality of higher education” that a university be able to

pursue “[t]he atmosphere of speculation, excitement and

creation” that is “promoted by a diverse student body.”

20

Indeed, diversity often brings not just excitement, but

valuable knowledge as well. “[A] student with a particular

background—whether it be ethnic, geographic, culturally

advantaged or disadvantaged—may bring to a [university]

experiences, outlooks, and ideas that enrich the training of its

Id. at 380 (Rehnquist, C.J., dissenting). 17

Id. at 329–30 (opinion of the Court). 18

Id. at 330 (internal quotation marks omitted).

19

 438 U.S. at 312 (opinion of Powell, J.) (internal quotation marks omitted).

20

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student body and better equip its graduates to render with

understanding their vital service to humanity.”

21

2. Professionalism. The majority pointed to “numerous

studies” showing that “student body diversity . . . better

prepares [students] as professionals.” The Court has

22

“repeatedly acknowledged the overriding importance of

preparing students for work and citizenship,” and today’s

23

students must be prepared to work within “an increasingly

diverse workforce.” Indeed, “major American businesses

24

have made clear that the skills needed in today’s increasingly

global marketplace can only be developed through exposure

to widely diverse people, cultures, ideas, and viewpoints.” A

25

diverse student body serves this end by “promot[ing]

cross-racial understanding, help[ing] to break down racial

stereotypes, and enabl[ing] students to better understand

persons of different races.”

26

3. Civic Engagement. The Court recognized that “[e]ffective

participation by members of all racial and ethnic groups in

the civic life of our Nation is essential if the dream of one

Nation, indivisible, is to be realized.” A diverse student body

27

is crucial for fostering this ideal of civic engagement, because

“[i]n order to cultivate a set of leaders with legitimacy in the

eyes of the citizenry, it is necessary that the path to

leadership be visibly open to talented and qualified

individuals of every race and ethnicity.” Maintaining a

28

visibly open path to leadership demands that “[a]ccess to

[higher] education . . . be inclusive of talented and qualified

Id. at 314.

21

Grutter, 539 U.S. at 330 (internal quotation marks omitted).

22

Id. (internal quotation marks omitted).

23

Id. (internal quotation marks omitted).

24

Id. 25

Id. (internal quotation marks and brackets omitted).

26

Id. at 332.

27

Id. 28

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individuals of every race and ethnicity, so that all members of

our heterogeneous society may participate in the educational

institutions that provide the training and education necessary

to succeed in America.” Each member of society “must have

29

confidence in the openness and integrity of the educational

institutions that provide this training.” Further, efforts to

30

educate and to encourage future leaders from previously

underrepresented backgrounds will serve not only to inspire,

but to actively engage with many woefully underserved

communities, helping to draw them back into our national

fabric.

B

Recognizing the pursuit of diversity, including racial diversity, to be a

compelling interest in higher education, Grutter endorsed the right of public

universities to increase enrollment of underrepresented minorities. Grutter also

cautioned that, while it accepted diversity as a compelling interest, any sorting

of persons on the basis of race must be by measures narrowly tailored to the

interest at stake.

As we read the Court, a university admissions program is narrowly

tailored only if it allows for individualized consideration of applicants of all

Id. at 332–33. The Court further explained:

29

[E]ducation [is] pivotal to sustaining our political and cultural heritage with a

fundamental role in maintaining the fabric of society. . . . [T]he diffusion of

knowledge and opportunity through public institutions of higher education must

be accessible to all individuals regardless of race or ethnicity. The United

States, as amicus curiae, affirms that “[e]nsuring that public institutions are

open and available to all segments of American society, including people of all

races and ethnicities, represents a paramount government objective.” And,

“[n]owhere is the importance of such openness more acute than in the context

of higher education.”

Id. at 331–32 (final two alterations in original; citations and some internal quotation marks

omitted).

Id. at 332.

30

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races. Such consideration does not define an applicant by race but instead

31

ensures that she is valued for all her unique attributes. Rather than applying

fixed stereotypes of ways that race affects students’ lives, an admissions policy

must be “‘flexible enough to consider all pertinent elements of diversity in light

of the particular qualifications of each applicant.’” As the Supreme Court later

32

summarized, “The entire gist of the analysis in Grutter was that the admissions

program at issue there focused on each applicant as an individual, and not

simply as a member of a particular racial group.” Thus, a university

33

admissions policy is more likely to be narrowly tailored if it contemplates that

a broad range of qualities and experiences beyond race will be important

contributions to diversity and as such are appropriately considered in

admissions decisions.

34

Because a race-conscious admissions program is constitutional only if

holistic, flexible, and individualized, a university may not establish a quota for

minority applicants, nor may it evaluate minority applications “on separate

admissions tracks.” The “racial-set-aside program” rejected by Justice Powell

35

in Bakke ran afoul of these related prohibitions because it reserved 16 out of 100

seats for members of certain minority groups. A university also may not award

36

a fixed number of bonus points to minority applicants. That was the lesson of

37

Id. at 337.

31

Id. (quoting Bakke, 438 U.S. at 317 (opinion of Powell, J.)).

32

Parents Involved, 551 U.S. at 722; see also Grutter, 539 U.S. at 337 (“The importance

33

of this individualized consideration in the context of a race-conscious admissions program is

paramount.”).

Grutter, 539 U.S. at 338.

34

Id. at 334 (citing Bakke, 438 U.S. at 315–16 (opinion of Powell, J.)).

35

Id. at 322; see Bakke, 438 U.S. at 289 (opinion of Powell, J.). 36

Gratz v. Bollinger, 539 U.S. 244, 271–72 (2003). 37

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Grutter’s companion case, Gratz v. Bollinger, in which the Court struck down the

University of Michigan’s undergraduate admissions program because it

automatically awarded a fixed number of admissions points to all

underrepresented minority applicants, resulting in a group-based admissions

boost.

38

Both Bakke and Gratz firmly rejected group treatment, insisting that the

focus be upon individuals and that an applicant’s achievements be judged in the

context of one’s personal circumstances, of which race is only a part. So

deployed, a white applicant raised by a single parent who did not attend high

school and struggled paycheck to paycheck and a minority child of a successful

cardiovascular surgeon may both claim adversity, but the personal hurdles each

has cleared will not be seen to be of the same height.

C

Finally, Grutter requires that any race-conscious measures must have a

“logical end point” and be “limited in time.” This durational requirement can

39

be satisfied by sunset provisions or by periodic reviews to reconsider whether

there are feasible race-neutral alternatives that would achieve diversity

interests “‘about as well.’” In this respect, Grutter is best seen not as an

40

unqualified endorsement of racial preferences, but as a transient response to

anemic academic diversity. As Justice O’Connor observed, “We expect that 25

years from now, the use of racial preferences will no longer be necessary to

further the interest approved today.”

41

Id. 38

Grutter, 539 U.S. at 342.

39

Id. at 339 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986)).

40

Id. at 343. 

41

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II. HISTORY OF THE UNIVERSITY’S ADMISSIONS POLICIES

Justice O’Connor’s vision may prove to be more aspirational than

predictive. Regardless, universities will construct admissions programs wedded

to their missions, which include bringing both meritorious and diverse students

to campus. Each year, UT receives applications from approximately four times

more students than it can enroll. Over the past two decades, UT has

42

repeatedly revised its admissions procedures to reflect its calculus of educational

values while navigating judicial decisions and legislative mandates.

A

Until 1996, UT selected students using two metrics. The first measure,

still employed today, is the Academic Index (“AI”), a computation based on the

student’s high school class rank, standardized test scores, and the extent to

which the applicant exceeded UT’s required high school curriculum. Perceiving

43

that AI alone would produce a class with unacceptably low diversity levels, UT

considered a second element for admissions—race. These measures combined

resulted in UT admitting more than 90% of applicants who were ranked in the

top ten percent of their high school class.

44

There were then no clear legal limits on a university’s use of race in

admissions. The Supreme Court decided Bakke in 1978 but its guidance came

Fisher, 645 F. Supp. 2d at 590.

42

Id. at 596. 43

Marta Tienda et al., Closing the Gap?: Admissions & Enrollment at the Texas Public

44

Flagships Before and After Affirmative Action 52 tbl.5 (Tex. Higher Educ. Opportunity Project

Working Paper), available at http://theop.princeton.edu/workingpapers.html. Unlike the

current Top Ten Percent Law, UT’s earlier policies did not mandate the admission of all top

ten percent students. Thus, even though a top ranking at a predominantly minority high

school would contribute to a higher AI score, the AI alone could not effectively serve as a proxy

for race because, on average, minorities received lower standardized test scores.

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in a fractured decision, leaving a quarter century of uncertainty. The record

45

does not detail precisely how race factored in admissions decisions during this

time, but it is undisputed that race was considered directly and was often a

controlling factor in admission. Under this race-conscious admissions policy,

46

the freshman class entering in Fall 1993 included 5,329 students, of whom 238

were African-American (4.5% of the overall class) and 832 were Hispanic

(15.6%).

47

B

Race-conscious admissions ended in 1996 with Hopwood v. Texas, when

a panel of this court struck down the use of race-based criteria in admissions

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). Four Justices would have 45

held that universities have broad authority to consider race in admissions in order to “remedy

disadvantage cast on minorities by past racial prejudice.” Id. at 325 (joint opinion of Brennan,

White, Marshall, and Blackmun, JJ.). Four other Justices would have held that Title VI of the

Civil Rights Act of 1964 bars federally funded universities from making any admissions

decisions on the basis of race. Id. at 417–18 (opinion of Stevens, J., joined by Burger, C.J., and

Stewart and Rehnquist, JJ.). Justice Powell cast the decisive vote in a separate opinion—not

joined in full by any other Justice—that invalidated the racial set-aside in the admissions

program then before the Court, but reasoned that it would be constitutional for a university

to consider race as one facet of diversity in a flexible review that treated each applicant as an

individual. Id. at 316–19 (opinion of Powell, J.). Because none of these positions carried the

support of a majority of the Court, it was not completely clear which (if any) of these rationales

was controlling. See Grutter, 529 U.S. at 322–25 (2003) (recounting this history and the

subsequent confusion among lower courts).

Records do reflect that at UT’s law school during this time, minority and nonminority 46

applicants were reviewed by separate admissions committees and were subject to different

grade and test-score cutoffs. See Hopwood v. Texas, 78 F.3d 932, 935–38 (5th Cir. 1996).

Univ. of Tex. at Austin, 1998–1999 Statistical Handbook. Minority enrollment was

47

fairly consistent from 1989 until 1993, with some slight decreases in 1994 and 1995. UT

publishes its Statistical Handbook annually, and these handbooks are cited throughout the

district court record. See Univ. of Tex. at Austin Office of Admissions, Diversity Levels of

Undergraduate Classes at The University of Texas at Austin 1996–2002 (2003) (Dist. Ct. Dkt.

No. 96, Tab 8, Ex. B), at 5, 6; Univ. of Tex. at Austin, Proposal to Consider Race and Ethnicity

in Admissions (2004) (Dist. Ct. Dkt. No. 96, Tab 11, Ex. A), at 30; Univ. of Tex. at Austin

Office of Admissions, 2008 Top Ten Percent Report (Dist. Ct. Dkt. No. 94, Ex. 9), at 4

[hereinafter 2008 Top Ten Percent Report]. Handbooks dating back to 1998 are available

online at http://www.utexas.edu/academic/ima/stat_handbook/.

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decisions at UT’s law school. A majority of that panel held that diversity in

48

education was not a compelling government interest, a conclusion the Texas

49

Attorney General interpreted as prohibiting the use of race as a factor in

admissions by any undergraduate or graduate program at Texas state

universities.

50

Beginning with the 1997 admissions cycle, UT deployed a Personal

Achievement Index (“PAI”) to be used with the Academic Index. In contrast to

the mechanical formulas used to calculate the AI, the PAI was meant “to identify

and reward students whose merit as applicants was not adequately reflected by

their class rank and test scores.” Although facially race-neutral, the PAI was

51

in part designed to increase minority enrollment; many of the PAI factors

disproportionately affected minority applicants.

52

UT also implemented other facially “race-neutral” policies that, together

with the AI and PAI, remain in use today. It created targeted scholarship

programs to increase its yield among minority students, expanded the quality

and quantity of its outreach efforts to high schools in underrepresented areas of

the state, and focused additional attention and resources on recruitment in

low-performing schools.

53

Despite these efforts, minority presence at UT decreased immediately.

Although the 1996 admissions decisions were not affected by Hopwood, the

publicity from the case impacted the number of admitted minorities who chose

to enroll. In 1997, fewer minorities applied to UT than in years past. The

 78 F.3d 932 (1996).

48

Id. at 944–48. 49

See Tex. Att’y Gen. Letter Op. No. 97-001 (1997). 50

Fisher, 645 F. Supp. 2d at 591.

51

Id. at 591–92. 52

 Id. at 592. 53

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number of African-American and Hispanic applicants dropped by nearly a

quarter, while the total number of University applicants decreased by only

13%. This decrease in minority applicants had a corresponding effect on

54

enrollment. Compared to 1995, African-American enrollment for 1997 dropped

almost 40% (from 309 to 190 entering freshmen) while Hispanic enrollment

decreased by 5% (from 935 to 892 entering freshmen). In contrast, Caucasian

enrollment increased by 14%, and Asian-American enrollment increased by

20%.

55

C

In 1997, the Texas legislature responded to the Hopwood decision by

enacting the Top Ten Percent Law, still in effect. The law altered UT’s

56

preexisting policy and mandated that Texas high school seniors in the top ten

percent of their class be automatically admitted to any Texas state university.

In its first year, the Top Ten Percent Law succeeded in increasing minority

percentages at UT. African-American enrollment rose from 2.7% to 3.0% and

Hispanic enrollment rose from 12.6% to 13.2%. However, the absolute number

of minorities remained stable as a result of a smaller freshman class. Over time,

both the number and percentage of enrolled Hispanics and African-Americans

increased. The entering freshman class of 2004, the last admitted without the

Grutter-like plan, was 4.5% African-American (309 students), 16.9% Hispanic

Diversity Levels of Undergraduate Classes at The University of Texas at Austin 54

1996–2002 (2003) (Dist. Ct. Dkt. No. 96, Tab 8, Ex. B), at 6.

1998–1999 Statistical Handbook.

55

 TEX. EDUC. CODE § 51.803 (1997). The Top Ten Percent Law was amended, during 56

the course of this litigation, to cap the number of students guaranteed admission at UT Austin

to 75% of the seats available to Texas residents. Id. § 51.803(a-1) (2010). The cap is effective

starting with admissions to the Fall 2011 entering class and is currently scheduled to end with

admissions to the Fall 2015 entering class.

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(1,149 students), and 17.9% Asian-American (1,218 students) in a class of 6,796

students.

57

The Top Ten Percent Law did not by its terms admit students on the basis

of race, but underrepresented minorities were its announced target and their

admission a large, if not primary, purpose. In 2004, among freshmen who were

Texas residents, 77% of the enrolled African-American students and 78% of the

Hispanic students had been admitted under the Top Ten Percent Law, compared

to 62% of Caucasian students. These numbers highlight the contribution of the

58

Top Ten Percent Law to increasing minority enrollment, but they also reflect a

trade-off implicit in the Law: the increase rested heavily on the pass from

standardized testing offered by the Top Ten Percent Law. After implementation

of the Law, the likelihood of acceptance for African-American and Hispanic

students in the second decile of their high school class, who were without the

benefits of the pass from standardized testing, declined. Meanwhile, the

acceptance probability of similarly situated Caucasian students increased.

59

D

Hopwood’s prohibitions ended after the 2004 admissions cycle with the

Supreme Court’s 2003 decision in Grutter. In August 2003, the University of

60

Texas Board of Regents authorized the institutions within the University of

Texas system to examine “whether to consider an applicant’s race and ethnicity”

in admissions “in accordance with the standards enunciated in” Grutter.

61

2008 Top Ten Percent Report at 6 tbl.1. 57

Id. at 8; see also Fisher, 645 F. Supp. 2d at 593 (reporting statistics for total admitted 58

applicants, both Texas and non-Texas residents).

 Tienda et al., supra note 44, at 52 tbl.5. 59

 539 U.S. 306 (2003). 60

Minutes of the Board of Regents of the University of Texas at Austin, Meeting No. 61

969, Aug. 6–7, 2003 (Dist. Ct. Dkt. No. 94, Ex. 19, Tab A), at 4.

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As part of its examination, UT commissioned two studies to explore

whether the University was enrolling a critical mass of underrepresented

minorities. The first study examined minority representation in undergraduate

classes, focusing on classes of “participatory size,” which it defined as between

5 and 24 students. UT analyzed these classes, which included most of the

undergraduate courses, because they offered the best opportunity for robust

classroom discussion, rich soil for diverse interactions. According to the study,

90% of these smaller classes in Fall 2002 had either one or zero

African-American students, 46% had one or zero Asian-American students, and

43% had one or zero Hispanic students. A later retabulation, which excluded

62

the very smallest of these classes and considered only classes with 10 to 24

students, found that 89% of those classes had either one or zero

African-American students, 41% had one or zero Asian-American students, and

37% had either one or zero Hispanic students. In its second study, UT

63

surveyed undergraduates on their impressions of diversity on campus and in the

classroom. Minority students reported feeling isolated, and a majority of all

students felt there was “insufficient minority representation” in classrooms for

“the full benefits of diversity to occur.”

64

The University incorporated the findings of these two studies in its June

2004 Proposal to Consider Race and Ethnicity in Admissions. The 2004

65

Proposal concluded that diverse student enrollment “break[s] down stereotypes,”

“promotes cross-racial understanding,” and “prepares students for an

Fisher, 645 F. Supp. 2d at 593. Classes with only one student of a given minority 62

were thought to be just as troubling as classes with zero students of that minority because a

single minority student is apt to feel isolated or like a spokesperson for his or her race. Id. at

602–603; see also Grutter, 539 U.S. at 319.

 Lavergne Aff. (Dist. Ct. Dkt. No. 102, Tab B) ¶¶ 4–5. 63

 Walker Aff. (Dist. Ct. Dkt. No. 96, Tab 11) ¶ 12. 64

 Dist. Ct. Dkt. No. 96, Tab 11, Ex. A [hereinafter 2004 Proposal]. 65

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increasingly diverse workplace and society.” With respect to the

66

undergraduate program in particular, the 2004 Proposal explained that “[a]

comprehensive college education requires a robust exchange of ideas, exposure

to differing cultures, preparation for the challenges of an increasingly diverse

workforce, and acquisition of competencies required of future leaders.” With

67

one eye on Grutter, it observed that these objectives are especially important at

UT because its “mission and . . . flagship role” is to “prepare its students to be

the leaders of the State of Texas”—a role which, given the state’s increasingly

diverse profile, will require them “to be able to lead a multicultural workforce

and to communicate policy to a diverse electorate.”

68

Citing the classroom diversity study, the 2004 Proposal explained that UT

had not yet achieved the critical mass of underrepresented minority students

needed to obtain the full educational benefits of diversity. Accordingly, the 2004

Proposal recommended adding the consideration of race as one additional factor

within a larger admissions scoring index. This recommendation was presented

as “an acknowledgment that the significant differences between the racial and

ethnic makeup of the University’s undergraduate population and the state’s

population prevent the University from fully achieving its mission.”

69

After more than a year of study following the Grutter decision, UT adopted

a policy to include race as one of many factors considered in admissions. UT has

no set date by which it will end the use of race in undergraduate admissions.

Rather, it formally reviews the need for race-conscious measures every five years

and considers whether adequate race-neutral alternatives exist. In addition,the

Id. at 1 (internal quotation marks omitted); see also Fisher, 645 F. Supp. 2d at 603. 66

2004 Proposal at 23 (quoted in Fisher, 645 F. Supp. 2d at 602). 67

Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). 68

Id. (quoted in Fisher, 645 F. Supp. 2d at 602). 69

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district court found that the University informally reviews its admissions

procedures each year.

70

The current policy has produced noticeable results. One magazine

dedicated to diversity in higher education ranked UT “sixth in the nation in

producing undergraduate degrees for minority groups.” In an entering class

71

that was roughly the same size in 1998 as it was in 2008, the enrollment of

African-American students doubled from 165 students to 335 students. Hispanic

enrollment increased approximately 1.5 times, from 762 students to 1,228

students. Asian-American enrollment also increased nearly 10%, from 1,034

students to 1,126 students. By contrast, in 2004, the last year the Top Ten

72

Percent Law operated without the Grutter plan, fall enrollment included only

275 African-Americans and 1,024 Hispanics.

Because of the myriad programs instituted, it can be difficult to attribute

increases in minority enrollment to any one initiative. In addition,

demographics have shifted in Texas, so increases in minority enrollment likely

in part reflect the increased presence of minorities statewide.

III. THE CHALLENGED POLICY

UT’s consideration of race is one part of the complex admissions process

operating when Appellants were rejected. Given Appellants’ challenge, we must

examine the whole of the process.

Fisher, 645 F. Supp. 2d at 594.

70

Id. This particular ranking is somewhat limited in its significance, however, as the 71

results are based on raw tabulations of the number of degrees conferred upon minority

students. Large schools, like UT, are more likely to be ranked higher simply because they

graduate a greater number of students (both minorities and non-minorities). See Victor M.H.

Borden, Top 100 Undergraduate Degree Producers: Interpreting the Data, DIVERSE ISSUES IN

HIGHER EDUC., June 12, 2008.

Statistical Handbook 2004–2005, at 22 tbl.S13A; Statistical Handbook 2009–2010,

72

at 16 tbl.S12 (data for fall enrollment only). For fall and summer numbers combined, see 2008

Top Ten Percent Report at 6.

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A

UT is a public institution of higher education, authorized by the Texas

Constitution and supported by state and federal funding. Accordingly, it begins

its admissions process by dividing applicants into three pools: (1) Texas

residents, (2) domestic non-Texas residents, and (3) international students.

Students compete for admission only against other students in their respective

pool. Texas residents are allotted 90% of all available seats, with admission

based on a two-tiered system, beginning with students automatically admitted

under the Top Ten Percent Law and then filling the remaining seats on the basis

of the Academic and Personal Achievement Indices. Because Appellants are

73

Texas residents, their challenge focuses on the admissions procedures applied

to in-state applicants.

Texas applicants are divided into two subgroups: (1) Texas residents who

are in the top ten percent of their high school class and (2) those Texas residents

who are not. Top ten percent applicants are guaranteed admission to the

University, and the vast majority of freshmen are selected in this way, without

a confessed consideration of race. In 2008, for example, 81% of the entering class

was admitted under the Top Ten Percent Law, filling 88% of the seats allotted

to Texas residents and leaving only 1,216 offers of admission university-wide for

non-top ten percent residents. The impact of the Top Ten Percent Law on UT’s

74

admissions has increased dramatically since it was first introduced in 1998,

Admission decisions for domestic non-Texas residents and international applicants 73

are made solely on the basis of their Academic and Personal Achievement Indices.

2008 Top Ten Percent Report at 8 tbl.2, 9 tbl.2b. Table 2 shows 8,984 top ten percent 74

students were admitted in 2008. The UT Associate Director of Admissions reported that

10,200 admissions slots are available for Texas residents, leaving 1,216 slots for non-top ten

percent students. Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12.

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when only 41% of the seats for Texas residents were claimed by students with

guaranteed admission.

75

The remaining Texas applicants, who were not within the top ten percent

of their high school graduating class, compete for admission based on their

Academic and Personal Achievement Indices. The Academic Index is the

76

mechanical formula that predicts freshman GPA using standardized test scores

and high school class rank. Some applicants’ AI scores are high enough that

77

they receive admission based on that score alone. Others are low enough that

their applications are considered presumptively denied. If an application is

presumptively denied, senior admission staff review the file and may, on rare

occasions, designate the file for full review notwithstanding the AI score.

78

The Personal Achievement Index is based on three scores: one score for

each of the two required essays and a third score, called the personal

achievement score, which represents an evaluation of the applicant’s entire file.

The essays are each given a score between 1 and 6 through “a holistic evaluation

of the essay as a piece of writing based on its complexity of thought,

Id. at 7 tbl.1a. In 1998, out of a class that included 6,110 Texas residents, only 2,513

75

enrolled freshmen were admitted under the Top Ten Percent Law.

 The district court found that, on “relatively rare” occasions, a holistic review of the 76

entire application may result in the University admitting an applicant to the fall class even

though his or her AI or PAI scores fall just shy of the official cutoff. See Fisher, 645 F. Supp.

2d at 599.

Fisher, 645 F. Supp. 2d at 596. The precise formulas used to calculate an applicant’s

77

Academic Index are derived by regression analysis and vary by intended major. For instance,

the formula for prospective engineering majors gives greater weight to math scores, whereas

the formula for prospective liberal arts majors gives somewhat greater weight to verbal scores.

See 2004 Proposal at 27 & n.5. The differences in these formulas are immaterial to the

present case.

 In other words, no applicant is denied admission based purely on AI score without 78

having her file reviewed by at least one admissions reader and her individual circumstances

considered.

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substantiality of development, and facility with language.” The personal

79

achievement score is also based on a scale of 1 to 6, although it is given slightly

greater weight in the final PAI calculation than the mean of the two essay

scores.

80

This personal achievement score is designed to recognize qualified

students whose merit as applicants was not adequately reflected by their

Academic Index. Admissions staff assign the score by assessing an applicant’s

demonstrated leadership qualities, awards and honors, work experience, and

involvement in extracurricular activities and community service. In addition,

the personal achievement score includes a “special circumstances” element that

may reflect the socioeconomic status of the applicant and his or her high school,

the applicant’s family status and family responsibilities, the applicant’s

standardized test score compared to the average of her high school,

and—beginning in 2004—the applicant’s race. To assess these intangible

81

factors, evaluators read the applicant’s essays again, but this time with an eye

to the information conveyed rather than the quality of the student’s writing.

Admissions officers undergo annual training by a nationally recognized expert

in holistic scoring, and senior staff members perform quality control to verify

that awarded scores are appropriate and consistent. The most recent study, in

2005, found that holistic file readers scored within one point of each other 88%

of the time.

82

 Fisher, 645 F. Supp. 2d at 597.

79

PAI = [(personal achievement score * 4) + (average essay score * 3)] / 7. Id. at 597 80

n.7.

Id. at 591–592, 597.

81

Id. at 597; see Univ. of Tex. at Austin Office of Admissions, Inter-Rater Reliability of 82

Holistic Measures Used in the Freshman Admission Process of the University of Texas at Austin

(Feb. 22, 2005) (Dist. Ct. Dkt. No. 94, Ex. 10).

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None of the elements of the personal achievement score—including

race—are considered individually or given separate numerical values to be

added together. Rather, the file is evaluated as a whole in order to provide the

fullest possible understanding of the student as a person and to place his or her

achievements in context. As UT’s director of admissions explained, “race

83

provides—like [the] language [spoken in the applicant’s home], whether or not

someone is the first in their family to attend college, and family

responsibilities—important context in which to evaluate applicants, and is only

one aspect of the diversity that the University seeks to attain.” Race is

84

considered as part of the applicant’s context whether or not the applicant

belongs to a minority group, and so—at least in theory—it “can positively impact

applicants of all races, including Caucasian[s], or [it] may have no impact

whatsoever.” Moreover, given the mechanics of UT’s admissions process, race

85

has the potential to influence only a small part of the applicant’s overall

admissions score. The sole instance when race is considered is as one element

of the personal achievement score, which itself is only a part of the total PAI.

Without a sufficiently high AI and well-written essays, an applicant with even

the highest personal achievement score will still be denied admission.

86

B

Although the process for calculating AI and PAI scores is common to all

parts of the University, each offer of admission to UT is ultimately tied to an

individual school or major. Texas residents in the top ten percent of their high

Fisher, 645 F. Supp. 2d at 597.

83

 Walker Aff. (Dist. Ct. Dkt. No. 96, Tab 11) ¶ 15. 84

Fisher, 645 F. Supp. 2d at 597.

85

See id. at 608. 86

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school class are guaranteed admission to the University, but they are not

assured admission to the individual school or program of their choice.

Most majors and colleges in the University provide automatic admission

to Top Ten Percent Law applicants, but certain “impacted majors”—including

the School of Business, the College of Communication, and the Schools of

Engineering, Kinesiology, and Nursing—are obligated to accept only a certain

number of Top Ten Percent Law applicants. These programs are “impacted”

87

because they could fill 80% or more of their available spaces each year solely

through operation of the Top Ten Percent Law. To avoid oversubscription and

to allow these colleges and majors to admit some non-top ten percent applicants,

UT caps the percentage of students automatically admitted to these programs

at 75% of the available spaces.

88

Top Ten Percent Law applicants who do not receive automatic entry to

their first choice program compete for admission to the remaining spaces, and

if necessary to their second-choice program, on the basis of their AI and PAI

scores. The admissions office places students into matrices for each preferred

school or major, with students grouped by AI score along one axis and PAI score

along the other axis. Liaisons for the majors then establish a cutoff line, which

is drawn in a stair-step pattern. Applicants denied admission to their firstchoice program are considered for their second choice, with cutoff lines

readjusted to reflect the influx of those applicants. Any top ten percent

applicants not admitted to either their first- or second-choice program are

automatically admitted as Liberal Arts Undeclared majors. All other applicants

 In addition, because of special portfolio, audition, and other requirements, the Top 87

Ten Percent Law does not apply to the School of Architecture, the School of Fine Arts, and

certain honors programs.

Thus, for example, the School of Business granted automatic admission only to those

88

students who graduated in the top 4% of their high school class and selected a business major

as their first choice. Ishop Dep. (Dist. Ct. Dkt. No. 96, Tab 2) at 32.

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not yet admitted to UT compete, again according to AI and PAI scores, for any

remaining seats in the Liberal Arts Undeclared program.

Although this completes the admissions process for the fall portion of the

freshman class, no Texas resident who submits a timely application is denied

admission. Instead, those residents not admitted to the entering fall class are

offered admission to either the summer program or the Coordinated Admissions

Program (CAP). Marginal applicants who missed the cutoff for the fall class are

offered admission to the summer program, which permits students to begin their

studies at UT during the summer and then join the regularly admitted students

in the fall. About 800 students enroll in the summer program each year. All

remaining Texas applicants are automatically enrolled in CAP, which

guarantees admission as a transfer student if the student enrolls in another UT

system campus for her freshman year and meets certain other conditions,

including the completion of thirty credit hours with a cumulative grade point

average of 3.2 or higher.

C

The Academic Index and Personal Achievement Index now employed by

UT have been in continuous use since 1997. The lone substantive change came

in 2005, following the Grutter decision, when the Board of Regents authorized

the consideration of race as another “special circumstance” in assessing an

applicant’s personal achievement score.

Race—like all other elements of UT’s holistic review—is not considered

alone. Admissions officers reviewing each application are aware of the

applicant’s race, but UT does not monitor the aggregate racial composition of the

admitted applicant pool during the process. The admissions decision for any

particular applicant is not affected—positively or negatively—by the number of

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other students in her racial group who have been admitted during that year.

89

Thus, “it is difficult to evaluate which applicants have been positively or

negatively affected by its consideration or which applicants were ultimately

offered admission due to their race who would not have otherwise been offered

admission.” Nevertheless, the district court found that race “is undisputedly

90

a meaningful factor that can make a difference in the evaluation of a student’s

application.”

91

D

UT undoubtedly has a compelling interest in obtaining the educational

benefits of diversity, and its reasons for implementing race-conscious

admissions—expressed in the 2004 Proposal—mirror those approved by the

Supreme Court in Grutter. The district court found that both the UT and

Grutter policies “attempt to promote ‘cross-racial understanding,’ ‘break down

racial stereotypes,’ enable students to better understand persons of other races,

better prepare students to function in a multi-cultural workforce, cultivate the

next set of national leaders, and prevent minority students from serving as

‘spokespersons’ for their race.” Like the law school in Grutter, UT “has

92

Fisher, 645 F. Supp. 2d at 598, 609. 89

Id. at 597.

90

 Id. at 597–598.

91

Id. at 603 (quoting Grutter, 539 U.S. at 319–20). More specifically, as described in 92

the 2004 Proposal, one purpose of UT’s race-conscious policy is “‘to provide an educational

setting that fosters cross-racial understanding, provides enlightened discussion and learning,

and prepares students to function in an increasingly diverse workforce and society.’” 2004

Proposal at 25 (quoted in Fisher, 645 F. Supp. 2d at 603). Another is to produce “‘future

educational, cultural, business, and sociopolitical leaders.’” Id. at 24 (quoted in Fisher, 645

F. Supp. 2d at 602). And because Texas’s population is uniquely diverse—“[i]n the near future,

Texas will have no majority race”—“‘tomorrow’s leaders must not only be drawn from a diverse

population[,] but must also be able to lead a multicultural workforce and to communicate

policy to a diverse electorate.’” Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). As the

state’s flagship public institution, UT determined that it “‘has a compelling educational

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determined, based on its experience and expertise, that a ‘critical mass’ of

underrepresented minorities is necessary to further its compelling interest in

securing the educational benefits of a diverse student body.” UT has made an

93

“educational judgment that such diversity is essential to its educational

mission,” just as Michigan’s Law School did in Grutter.

94

Considering UT’s admissions system in its historical context, it is evident

that the efforts of the University have been studied, serious, and of high purpose,

lending support to a constitutionally protected zone of discretion. That said, the

use of race summons close judicial scrutiny, necessary for the nation’s slow

march toward the ideal of a color-blind society, at least as far as the government

can see.

IV. STANDARD OF REVIEW

It is a given that as UT’s Grutter-like admissions program differentiates

between applicants on the basis of race, it is subject to strict scrutiny with its

requirement of narrow tailoring. At the same time, the Supreme Court has

95

held that “[c]ontext matters” when evaluating race-based governmental action,

and a university’s educational judgment in developing diversity policies is due

deference.

96

interest to produce graduates who are capable of fulfilling the future leadership needs of

Texas.’” Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602).

Fisher, 645 F. Supp. 2d at 603 (quoting Grutter, 539 U.S. at 333). 93

Grutter, 539 U.S. at 328.

94

Id. at 326, 328 (citing Adarand, 515 U.S. at 227); see also Parents Involved, 551 U.S. 95

at 720.

Grutter, 539 U.S. at 327; see also id. at 328 (“The Law School’s educational judgment 96

. . . is one to which we defer. . . . Our holding today is in keeping with our tradition of giving

a degree of deference to a university’s academic decisions, within constitutionally prescribed

limits.”).

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A

Judicial deference to a university’s academic decisions rests on two

independent foundations. First, these decisions are a product of “complex

educational judgments in an area that lies primarily within the expertise of the

university,” far outside the experience of the courts. Second, “universities

97

occupy a special niche in our constitutional tradition,” with educational

autonomy grounded in the First Amendment. As Justice Powell explained in

98

Bakke, “[a]cademic freedom . . . . includes [a university’s] selection of its student

body.”

99

Yet the scrutiny triggered by racial classification “is no less strict for

taking into account” the special circumstances of higher education. “[S]trict

100

scrutiny is designed to provide a framework for carefully examining the

importance and the sincerity of the reasons advanced by the governmental

decisionmaker for the use of race in [a] particular context.” Narrow tailoring,

101

a component of strict scrutiny, requires any use of racial classifications to so

closely fit a compelling goal as to remove the possibility that the motive for the

classification was illegitimate racial stereotype. Rather than second-guess the

merits of the University’s decision, a task we are ill-equipped to perform, we

instead scrutinize the University’s decisionmaking process to ensure that its

decision to adopt a race-conscious admissions policy followed from the good faith

consideration Grutter requires. We presume the University acted in good faith,

Id. at 328.

97

Id. at 329.

98

Bakke, 438 U.S. at 312 (opinion of Powell, J.). 99

Grutter, 539 U.S. at 328.

100

Id. at 327. 101

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a presumption Appellants are free to rebut. Relatedly, while we focus on the

102

University’s decision to adopt a Grutter-like plan, admissions outcomes remain

relevant evidence of the plan’s necessity—a reality check.

B

With a nod to Grutter’s command that we generally give a degree of

deference to a university’s educational judgments, Appellants urge that Grutter

did not extend such deference to a university’s decision to implement a raceconscious admissions policy. Instead, they maintain Grutter deferred only to the

university’s judgment that diversity would have educational benefits, not to the

assessment of whether the university has attained critical mass of a racial group

or whether race-conscious efforts are necessary to achieve that end.

As an initial matter, this argument in its full flower is contradicted by

Grutter. The majority held that, like the examination into whether the

University has a compelling interest, “the narrow-tailoring inquiry . . . must be

calibrated to fit the distinct issues raised by the use of race to achieve student

body diversity in public higher education.” That is, the narrow-tailoring

103

inquiry—like the compelling-interest inquiry—is undertaken with a degree of

deference to the University’s constitutionally protected, presumably expert

academic judgment.

Appellants would have us borrow a more restrictive standard of review

from a series of public employment and government contracting cases, in which

the Supreme Court “held that certain government actions to remedy past racial

discrimination—actions that are themselves based on race—are constitutional

only where there is a ‘strong basis in evidence’ that the remedial actions were

Id. at 329 (“[G]ood faith on the part of a university is presumed absent a showing 102

to the contrary.” (internal quotation marks omitted) (quoting Bakke, 438 U.S. at 318–19

(opinion of Powell, J.))).

Id. at 333–34. 103

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necessary.” The Court most recently applied this strong-basis-in-evidence

104

standard in Ricci v. DeStefano.

In Ricci, white firefighters from New Haven, Connecticut sued under Title

VII, challenging the city’s decision to disregard a promotions test after the

results showed that white candidates significantly outperformed minority

candidates. New Haven defended this action, arguing that if it had ratified

105

the test results it could have faced liability under Title VII for adopting a

practice that had a disparate impact on the minority firefighters. The white

106

firefighters, however, argued that ignoring the test results was a violation of

Title VII’s separate prohibition against intentional race discrimination, or

disparate treatment. Responding to this tension, the Supreme Court held that

107

such intentional race-based action is not permitted by Title VII unless the

employer can demonstrate with a strong basis in evidence that it would have

been liable under the disparate impact provision had it not taken the action.

108

The Court suggested that anything less would risk creating a de facto quota

system, where an employer could disregard test results to achieve a preferred

racial balance, impermissibly shifting the focus from individual discrimination

to group bias. Applying the strong-basis-in-evidence standard, the Supreme

109

Ricci v. DeStefano, 129 S. Ct. 2658, 2675 (2009) (some internal quotation marks

104

omitted) (quoting Richmond v. J.A Croson Co., 488 U.S. 469, 500 (1989), in turn quoting

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality)).

Id. at 2664. 105

Id.; see 42 U.S.C. § 2000e-2(k)(1)(A)(i) (codifying Griggs v. Duke Power Co., 401 U.S. 106

424 (1971)).

See 42 U.S.C. § 2000e-2(a)(1).

107

Ricci, 129 S. Ct. at 2664. 108

Id. at 2676. 109

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Court held that New Haven’s fear of disparate impact liability was not

adequately supported.

110

The city had argued it only needed to show a fear of liability based on a

good-faith belief—a rough analogy to the university admissions standard. Yet

the Court found that an intent-based standard could not be squared with the

statutory text. The Ricci Court turned to the strong-basis-in-evidence standard

“as a matter of statutory construction to resolve any conflict between the

disparate-treatment and disparate-impact provisions of Title VII.”

111

Although Ricci did not address the firefighters’ equal protection claim, the

Court derived its standard from Richmond v. J.A. Croson Co., a government

112

contracting case, which in turn adopted from a plurality opinion in Wygant v.

Jackson Board of Education, a public employment case. In Wygant, the

113

plurality concluded that defending race-based public employment decisions as

responsive to present effects of past discrimination required a strong basis in

evidence of the past discrimination. Similarly, Croson adopted this standard

114

after observing that “an amorphous claim [of] past discrimination in a particular

industry cannot justify the use of an unyielding racial quota.”

115

This recitation of history, quick as it is, makes plain that the cases

Appellants cite have little purchase in this challenge to university admissions.

The high standard for justifying the use of race in public employment decisions

responds to the reality that race used in a backward-looking attempt to remedy

Id. 110

Id. at 2676. We note that these statutory constraints are not present in the context 111

of university admissions programs.

 488 U.S. at 500. 112

 476 U.S. at 277. 113

Id. at 277–278. 114

Croson, 488 U.S. at 499.

115

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past wrongs, without focus on individual victims, does not treat race as part of

a holistic consideration. In doing so, it touches the third rail of racial quotas.

Wygant and Croson both involved explicit quotas; in Ricci, the Court was

concerned that the city’s use of race threatened to devolve into a de facto quota.

By contrast, Grutter recognized that universities are engaged in a

different enterprise. Their holistic approach is part of a forward-looking effort

to obtain the educational benefits of diversity. The look to race as but one

element of this further goal, coupled with individualized consideration, steers

university admissions away from a quota system. Grutter teaches that so long

as a university considers race in a holistic and individualized manner, and not

as part of a quota or fixed-point system, courts must afford a measure of

deference to the university’s good faith determination that certain race-conscious

measures are necessary to achieve the educational benefits of diversity,

including attaining critical mass in minority enrollment.

Parents Involved in Community Schools v. Seattle School District No. 1

further supports this understanding. When scrutinizing two school districts’

116

race-conscious busing plans, the Court invoked Grutter’s “serious, good faith

consideration” standard, rather than the strong-basis-in-evidence standard that

Appellants would have us apply. The Parents Involved Court never suggested

117

that the school districts would be required to prove their plans were meticulously

supported by some particular quantum of specific evidence. Rather, the Court

struck down the school districts’ programs because they pursued racial balancing

and defined students based on racial group classifications, not on individual

circumstances.

In short, the Court has not retreated from Grutter’s mode of analysis, one

tailored to holistic university admissions programs. Thus, we apply strict

 551 U.S. 701 (2007). 116

See id. at 735 (quoting Grutter, 539 U.S. at 339). 117

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scrutiny to race-conscious admissions policies in higher education, mindful of a

university’s academic freedom and the complex educational judgments made

when assembling a broadly diverse student body.

C

Appellants do not allege that UT’s race-conscious admissions policy is

functionally different from, or gives greater consideration to race than, the policy

upheld in Grutter. Rather, Appellants question whether UT needs a Grutter-like

policy. As their argument goes, the University’s race-conscious admissions

program is unwarranted because (1) UT has gone beyond a mere interest in

diversity for education’s sake and instead pursues a racial composition that

mirrors that of the state of Texas as a whole, amounting to an unconstitutional

attempt to achieve “racial balancing”; (2) the University has not given adequate

consideration to available “race-neutral” alternatives, particularly percentage

plans like the Top Ten Percent Law; and (3) UT’s minority enrollment under the

Top Ten Percent Law already surpassed critical mass, such that the additional

(and allegedly “minimal”) increase in diversity achieved through UT’s Grutterlike policy does not justify its use of race-conscious measures. We will consider

each of these arguments in turn.

V. RACIAL BALANCING

Again, diversity is a permissible goal for educational institutions, but

“outright racial balancing” is not. Attempting to ensure that the student body

contains some specified percentage of a particular racial group is “patently

unconstitutional.” This concept follows from the Supreme Court’s repeated

118

emphasis that, by itself, increasing racial representation is not a sufficiently

compelling interest to justify the use of racial preferences. Grutter described

Grutter, 539 U.S. at 329–30 (quoting Bakke, 438 U.S. at 308 (opinion of Powell, J.)). 118

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many important educational interests that may be sought through diversity, but

steadfastly maintained that “‘[r]acial balance is not to be to be achieved for its

own sake.’” Moreover, “[t]he point of the narrow tailoring analysis in which

119

the Grutter Court engaged was to ensure that the use of racial classifications

was indeed part of a broader assessment of diversity, and not simply an effort

to achieve racial balance” by creating an unconstitutional quota.

120

A

Looking to the details of UT’s race-conscious admissions policy, it is clear

that administrators knew a quota system would not survive judicial review, and

they took care to avoid this fatal mistake. UT’s system was modeled after the

Grutter program, which the Supreme Court held was not a quota. UT has never

established a specific number, percentage, or range of minority enrollment that

would constitute “critical mass,” nor does it award any fixed number of points to

minority students in a way that impermissibly values race for its own sake.

121

Further, there is no indication that UT’s Grutter-like plan is a quota by

another name. It is true that UT looks in part to the number of minority

Id. at 330 (quoting Freeman v. Pitts, 503 U.S. 467, 494 (1992)).

119

Parents Involved, 551 U.S. at 723.

120

 Appellants argue that UT’s “head-in-the-sand approach”—refusing to identify any 121

specific number, percentage, or range of minority students that would constitute critical

mass—is an improper attempt“to short circuit any inquiry into whether it can justify its policy

with evidence by arguing that critical mass is a purely subjective concept that cannot be

evaluated in numerical terms.” Appellants claim that until UT identifies some “finishing line,”

the use of race has “no logical stopping point” and is therefore “too amorphous a basis for

imposing a racially classified remedy.” But in both Bakke and Grutter, the controlling opinions

expressly approved of policies seeking only some undefined “meaningful number” of minorities,

see Grutter, 539 U.S. at 335; Bakke, 438 U.S. at 323 (opinion of Powell, J.), and the Court has

firmly “rejected” the argument “that diversity as a basis for employing racial preferences is

simply too open-ended, ill-defined, and indefinite” a ground for race-conscious university

admissions policies, Gratz, 539 U.S. at 268 (internal quotation marks omitted). On the

contrary, if UT were to identify some numerical target for minority enrollment, that would

likely render the policy unconstitutional under Grutter.

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students when evaluating whether it has yet achieved a critical mass, but

“[s]ome attention to numbers, without more, does not transform a flexible

admissions system into a rigid quota.” Whereas a quota imposes a fixed

122

percentage standard that cannot be deviated from, a permissible diversity goal

“‘require[s] only a good-faith effort . . . to come within a range demarcated by the

goal itself.’” Indeed, UT’s policy improves upon the program approved in

123

Grutter because the University does not keep an ongoing tally of the racial

composition of the entering class during its admissions process.

124

UT has not admitted students so that its undergraduate population

directly mirrors the demographics of Texas. Its methods and efforts belie the

charge. The percentage of Hispanics at UT is less than two-thirds the

percentage of Hispanics in Texas, and the percentage of African-Americans at

UT is half the percentage of Texas’s African-American population, while

Asian-American enrollment is more than five times the percentage of Texan

Asian-Americans.

125

B

Appellants nevertheless argue that UT’s program amounts to racial

balancing because it supposedly evinces a special concern for demographically

underrepresented groups, while neglecting the diverse contributions of others.

These arguments do not account for the operation of UT’s admissions system or

the scope of the diversity interest approved by the Court in Grutter.

Grutter, 539 U.S. at 336 (citation, internal quotation marks, and brackets omitted).

122

Id. at 335 (quoting Sheet Metal Workers v. EEOC, 478 U.S. 421, 495 (1986)).

123

Cf. Grutter, 539 U.S. at 391–92 (Kennedy, J., dissenting). 124

Fisher, 645 F. Supp. 2d at 607 n.11. 125

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1

The district court expressly found that race can enhance the personal

achievement score of a student from any racial background, including whites and

Asian-Americans. For example, a white student who has demonstrated

126

substantial community involvement at a predominantly Hispanic high school

may contribute a unique perspective that produces a greater personal

achievement score than a similarly situated Hispanic student from the same

school. This possibility is the point of Grutter’s holistic and individualized

assessments, which must be “‘flexible enough to consider all pertinent elements

of diversity in light of the particular qualifications of each applicant.’” Indeed,

127

just as in Grutter, UT applicants of every race may submit supplemental

information to highlight their potential diversity contributions, which allows

students who are diverse in unconventional ways to describe their unique

attributes.

128

The summary judgment record shows that demographics are not consulted

as part of any individual admissions decision, and UT’s admissions procedures

do not treat certain racial groups or minorities differently than others when

reviewing individual applications. Rather, the act of considering minority group

demographics (to which Appellants object) took place only when the University

first studied whether a race-conscious admissions program was needed to attain

critical mass. Appellants’ objection therefore must be directed not to the design

of the program, but rather to whether UT’s decision to reintroduce race as a

factor in admissions was made in good faith.

Id. at 606. 126

Grutter, 539 U.S. at 337 (quoting Bakke, 438 U.S. at 317 (opinion of Powell, J.)).

127

Id. at 338; see Fisher, 645 F. Supp. 2d at 597.

128

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2

Appellants contend that UT revealed its true motive to be outright racial

balancing when it referenced state population data to justify the adoption of

race-conscious admissions measures. They insist that if UT were truly focused

on educational benefits and critical mass, then there should be no reason to

consult demographic data when determining whether UT had sufficient minority

representation.

We disagree. The University’s policies and measured attention to the

community it serves are consonant with the educational goals outlined in

Grutter and do not support a finding that the University was engaged in

improper racial balancing during our time frame of review. Both Grutter and

Bakke recognized that “there is of course ‘some relationship between numbers

and achieving the benefits to be derived from a diverse student body.’” In its

129

policymaking process, UT gave appropriate attention to those educational

benefits identified in Grutter without overstepping any constitutional bounds.

Grutter recognized that racial and ethnic backgrounds play an influential

role in producing the diversity of views and perspectives which are paramount

to a university’s educational mission. As Justice O’Connor explained, the

“unique experience of being a racial minority in a society, like our own, in which

race unfortunately still matters” can have a significant impact on a student’s

views. The Court acknowledged that “[b]y virtue of our Nation’s struggle with

130

racial inequality, [underrepresented minority students] are both likely to have

experiences with particular importance to the [University’s] mission, and less

likely to be admitted in meaningful numbers on criteria that ignore these

experiences.” UT properly concluded that these individuals from the state’s

131

Grutter, 539 U.S. at 336 (quoting Bakke, 438 U.S. at 323 (opinion of Powell, J.)).

129

Id. at 333.

130

Id. at 338.

131

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underrepresented minorities would be most likely to add unique perspectives

that are otherwise absent from its classrooms. Identifying which backgrounds

are underrepresented, in turn, presupposes some reference to demographics, and

it was therefore appropriate for UT to give limited attention to this data when

considering whether its current student body included a critical mass of

underrepresented groups.

Preparing students to function as professionals in an increasingly diverse

workforce likewise calls for some consideration of a university’s particular

educational mission and the community it serves. For instance, a nationally

renowned law school draws upon a nationwide applicant pool and sends its

graduates into careers in all states; therefore it is appropriate for such a school

to consider national diversity levels when setting goals for its admissions

program. In contrast, UT’s stated goal is to “produce graduates who are capable

of fulfilling the future leadership needs of Texas.” This objective calls for a

132

more tailored diversity emphasis. In a state as racially diverse as Texas,

ensuring that graduates learn to collaborate with members of racial groups they

will encounter in the workforce is especially important. The 2004 Proposal

concluded that a race-conscious admissions program was necessary at UT

specifically because “from a racial, ethnic, and cultural standpoint, students at

the University [were] being educated in a less-than-realistic environment that

[was] not conducive to training the leaders of tomorrow.”

133

The need for a state’s leading educational institution to foster civic

engagement and maintain visibly open paths to leadership also requires a degree

of attention to the surrounding community. A university presenting itself as

open to all may be challenged when the state’s minority population grows

steadily but minority enrollment does not. Indeed, the 2004 Proposal expressed

2004 Proposal at 23 (quoted in Fisher, 645 F. Supp. 2d at 602). 132

Id. at 24–25 (quoted in Fisher, 645 F. Supp. 2d at 602). 133

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concern that UT appeared “largely closed to nonwhite applicants” and did not

“provide a welcoming supportive environment” for minority students. UT was

134

keenly aware that by sending a message that people of all stripes can succeed at

UT, the University would attract promising applicants from once-insulated

communities, over time narrowing the credentials gap between minority and

non-minority applicants. After Hopwood, such applicants were dissuaded

135

from applying to UT. But through the Top Ten Percent Law and Grutter-like

plan, UT has increased its minority applicant pool in its effort to ensure that it

serves as a flagship university for the entire state, not just Texans of certain

backgrounds. Cultivating paths to leadership for underrepresented groups

serves both the individual and the public, sustaining an infrastructure of leaders

in an increasingly pluralistic society. Although a university must eschew

demographic targets, it need not be blind to significant racial disparities in its

community, nor is it wholly prohibited from taking the degree of disparity into

account.

Finally, Grutter’s structure accepts that a university’s twin objectives of

rewarding academic merit and fostering diversity can be complementary rather

than competing goals; that students rising to the top of underrepresented groups

demonstrate promise as future leaders. These students’ relative success in the

face of harmful and widespread stereotypes evidences a degree of drive,

determination, and merit not captured by test scores alone. Insofar as

Appellants complain that the University’s limited attention to demographics was

inconsistent with the legitimate educational concerns recognized in Bakke and

Grutter, we conclude that their contention cannot be sustained.

Id. at 14. 134

See, e.g., Mark C. Long et al., Policy Transparency and College Enrollment: Did the 135

Texas Top Ten Percent Law Broaden Access to the Public Flagships?, 627 ANNALS AM. ACAD.

POL. &SOC.SCI. 82 (2010); Kim M. Lloyd et al., Minority College Aspirations, Expectations and

Applications Under the Texas Top 10% Law, 86 SOC. FORCES 1105 (2008).

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3

Appellants argue that a broad approach to educational diversity is

improper because “critical mass” must be an “inward-facing concept . . . that

focuses on the functioning of the student body,” encompassing only that level of

minority enrollment necessary to ensure that minority students participate in

the classroom and do not feel isolated. While Appellants’ view may comport with

one literal interpretation of the “critical mass” label, it is not the view that

prevailed in Grutter. The Grutter majority defined critical mass “by reference

to the educational benefits that diversity is designed to produce,” and the

136

educational benefits recognized in Grutter go beyond the narrow “pedagogical

concept” urged by Appellants. On this understanding, there is no reason to

assume that critical mass will or should be the same for every racial group or

every university. We are persuaded, as was the district court, that the

University adhered to Grutter when it reintroduced race into its admissions

process based in part on an analysis that devoted special attention to those

minorities which were most significantly underrepresented on its campus.

VI. THE TOP TEN PERCENT LAW

Grutter is best read as a path toward the moment when all race-conscious

measures become unnecessary. To that end, Grutter requires universities that

employ race-conscious admissions to seriously consider race-neutral alternatives.

But “[n]arrow tailoring does not require exhaustion of every conceivable

race-neutral alternative,” especially if the proffered alternatives would require

the University to sacrifice other important interests, like its academic selectivity

and reputation for excellence.

137

Grutter, 539 U.S. at 339.

136

See id. at 339–340. 137

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The parties devote significant attention to the Top Ten Percent Law.

138

Since the Law was first enacted in 1997, UT has seen increases in both

African-American and Hispanic enrollment, but again, changing demographics

and other minority outreach programs render it difficult to quantify the

increases attributable to the Top Ten Percent Law.

139

Appellants put forward the Top Ten Percent Law as a facially race-neutral

alternative that would allow UT to obtain a critical mass of minority enrollment

without resorting to race-conscious admissions. As the argument goes, if the Top

Ten Percent Law were able to serve the University’s interests “about as well” as

race-conscious admissions, without differentiating between students on the basis

of race, then it would render UT’s current admissions program

unconstitutional. UT responds that the Top Ten Percent Law does not

140

constitute a workable alternative to a flexible admissions system, and so it is

“entirely irrelevant” as a matter of law in determining whether or not a

university may adopt the holistic consideration of race to achieve critical mass.

UT is correct that so-called “percentage plans” are not a constitutionally

mandated replacement for race-conscious admissions programs under Grutter,

although—as will become apparent—this realization alone does not end our

constitutional inquiry. The idea of percentage plans as a viable alternative to

race-conscious admissions policies was directly advocated to the Grutter Court

TEX. EDUC. CODE § 51.803 (1997). The precise impact UT’s other race-neutral 138

alternatives (such as scholarship and outreach programs) have had on minority enrollment

is not clear, but their effect would not appear to be great enough to bear on the

constitutionality of the University’s race-conscious admissions policy.

Fisher, 645 F. Supp. 2d at 594; see also Marta Tienda & Teresa A. Sullivan, The 139

Promise and Peril of the Texas Uniform Admissions Law 164–65 & tbl.1, in THE NEXT TWENTYFIVE YEARS? AFFIRMATIVE ACTION AND HIGHER EDUCATION IN THE UNITED STATES AND SOUTH

AFRICA 155 (David L. Featherman et al. eds., 2010).

See Grutter, 539 U.S. at 339 (quoting Wygant, 476 U.S. at 280 n.6 (1986)). 140

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by the United States, arguing as amicus curiae. In response, the Court held

141

that although percentage plans may be a race-neutral means of increasing

minority enrollment, they are not a workable alternative—at least in a

constitutionally significant sense—because “they may preclude the university

from conducting the individualized assessments necessary to assemble a student

body that is not just racially diverse, but diverse along all the qualities valued

by the university.” In addition, the Court emphasized existing percentage

142

plans—including UT’s—are simply not “capable of producing a critical mass

without forcing [universities] to abandon the academic selectivity that is the

cornerstone of [their] educational mission.”

143

That the Top Ten Percent Law is not a constitutionally-mandated

alternative does not make it irrelevant. By now it is clear that the Law is

inescapably tied to UT’s Grutter plan, as Grutter does its work with the

applicants who remain after the cut of the Top Ten Percent Law. In 2008, top

ten percent applicants accounted for 8,984 of the 10,200 Texas admittees.

144

Thus, with the Top Ten Percent Law in effect, UT’s Grutter plan can only

possibly influence the review of approximately 1,200 admitted students’

applications. In evaluating the constitutionality of an admissions program,

145

 The United States has since filed an amicus brief in the present case, urging us to 141

uphold UT’s current admissions program.

Grutter, 539 U.S. at 340 (internal citation omitted).

142

Id. 143

2008 Top Ten Report at 8 tbl.2; Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12. 144

In reality, the Grutter plan operates on even fewer applications, as many non-top ten 145

percent students are admitted based purely on their class rank and standardized test scores,

without any reference to their PAI, leaving only 841 seats in 2008 that were evaluated under

the Grutter plan. See Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12.

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we cannot ignore a part of the program comprising 88% of admissions offers for

Texas residents and yielding 81% of enrolled Texan freshmen.

146

The reality is that the Top Ten Percent Law alone does not perform well

in pursuit of the diversity Grutter endorsed and is in many ways at war with it.

While the Law may have contributed to an increase in overall minority

enrollment, those minority students remain clustered in certain programs,

limiting the beneficial effects of educational diversity. For example, nearly a

147

quarter of the undergraduate students in UT’s College of Social Work are

Hispanic, and more than 10% are African-American. In the College of

Education, 22.4% of students are Hispanic and 10.1% are African-American. By

contrast, in the College of Business Administration, only 14.5% of the students

are Hispanic and 3.4% are African-American. It is evident that if UT is to

148

have diverse interactions, it needs more minority students who are interested

in and meet the requirements for a greater variety of colleges, not more students

disproportionately enrolled in certain programs. The holistic review endorsed

2008 Top Ten Report at 7 tbl.1a; see supra note 74 and accompanying text. We also

146

note that since it began, the Top Ten Percent Law has had an increasing impact on admissions

decisions. In 1998, top ten percent candidates comprised just 41% of Texans in the freshman

class. In 2004, 66% of Texan freshmen were top ten percent students, and in 2008, top ten

percent students made up 81% of the Texas freshmen seats. While the legislative 75% cap on

top ten percent enrollment may help alleviate some of the concerns with this plan, the fact

remains that the Top Ten Percent Law operates today very differently than it did when first

implemented.

See Univ. of Tex. at Austin Office of Info. Mgmt., Statistical Handbook 2009–2010,

147

at 32 tbl.S27 (2010) (reporting UT enrollment by college, grade level, ethnicity, and gender);

Lisa Dickson, Major Choices: Race and Gender Differences in College Major Choice, 627

ANNALS AM. ACAD. POL. & SOC. SCI. 108, 108 (2010) (analyzing UT data and finding that

“significant differences by gender, race, and ethnicity persist in initial college major choice

even after controlling for the [SAT] score of the student and the high school class rank of the

student”).

Statistical Handbook 2009–2010, at 31–32 tbl.S27. 148

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by Grutter gives UT that discretion, but the Top Ten Percent Law, which

accounts for nearly 90% of all Texas resident admissions, does not.

149

Focusing narrowly on geographic diversity, in part as a proxy for race, the

Top Ten Percent Law crowds out other types of diversity that would be

considered under a Grutter-like plan. By ignoring these other diversity

contributions, the Top Ten Percent Law restricts the University’s ability to

achieve the maximum educational benefits of a truly diverse student body. As

150

UT’s 2003 classroom study shows, percentage plans bear little promise of

producing the meaningful diverse interactions envisioned by Grutter, at least not

in the classroom. For instance, the study reported that although overall

enrollment of minority students at UT rose significantly between 1996 and 2002,

the Fall 2002 schedule contained more classes with zero or one African American

or Hispanic students than had the Fall 1996 schedule.

151

Justice Ginsburg pointed out in Grutter’s companion case that percentage

plans create damaging incentives to the education system. She observed that

“[p]ercentage plans depend for their effectiveness on continued racial

segregation at the secondary school level.” These measures “encourage parents

For example, instead of admitting a minority top ten percent student from a

149

low-performing school, UT might admit a minority student with an interest in business who

is just as academically qualified (and perhaps more so), but falls outside the top ten percent

of his high school class because he attends a more competitive high school. This example also

demonstrates how the Top Ten Percent Law hurts academic selectivity: UT must admit a top

ten percent student from a low-performing high school before admitting a more qualified

minority student who ranks just below the top ten percent at a highly competitive high school.

This effect, in turn, further widens the “credentials gap” between minority and non-minority

students at the University, which risks driving away matriculating minority students from

difficult majors like business or the sciences.

The Top Ten Percent Law may produce diversity beyond varying hometowns,

150

including differences in socioeconomic status and rural/urban/suburban upbringing. However,

under the Top Ten Percent Law, the University does not have the opportunity to select for a

wide range of diverse experiences (such as travel abroad, extra-curricular involvement, or

work experience), so the Top Ten Percent Law bluntly operates as an attempt to create

diversity through reliance on perceived group characteristics and segregated communities.

2004 Proposal at 25 & tbl.8. 151

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to keep their children in low-performing segregated schools, and discourage

students from taking challenging classes that might lower their grade point

averages.” Similarly, these plans create a strong incentive to avoid

152

competitive educational institutions like magnet schools.

153

Texas applicants falling outside the top ten percent group face extreme

competition to gain admittance to the University. There are approximately

16,000 students competing for only 1,216 fall admissions slots. The competition

is so great that, on average, students admitted from outside the top ten percent

of their high school class, regardless of race, have even higher SAT scores than

those granted automatic admission under the Top Ten Percent Law.

154

Perversely, this system negatively impacts minority students (who nationally

have lower standardized test scores) in the second decile of their classes at

competitive high schools. Grutter’s holistic look at race may soften this

unreasonable exclusion of those second-decile minorities better qualified than

many of the non-minorities bluntly swept in under the Top Ten Percent Law.

But not much. It requires no empirical study to observe that those excluded

under this Law have been a rich source of Texas leaders over its history and that

for some applicants, admission to the flagship school of Texas is little more

possible than admission to Harvard. That all of these weaknesses are

155

Gratz, 539 U.S. at 304 n.10 (Ginsburg, J., dissenting).

152

In an effort to ameliorate this effect, a special provision of the Top Ten Percent Law 153

provides that “a high school magnet program, academy, or other special program” may be

considered “an independent high school with its own graduating class separate from the

graduating class of other students attending the high school,” effectively allowing the school

to certify two separate groups of Top Ten Percent Law students. See TEX. EDUC. CODE

§ 51.8045.

See 2008 Top Ten Percent Report at 12 tbl.6 (showing the average SAT range for top 154

ten percent and non-top ten percent students); id. at 13–15 tbls.6a–6d (displaying SAT ranges

based on race and top ten percent status).

 To reach its target class size, UT offers fall admission to 10,200 Texas applicants. 155

Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12. For the class entering Fall 2008, after UT

offered admission to top ten percent students, there were 1,216 admissions spots remaining.

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apparent in the Top Ten Percent Law only make its focus upon race the

plainer.

156

The Top Ten Percent Law was adopted to increase minority enrollment.

That it has done, but its sweep of admissions is a polar opposite of the holistic

focus upon individuals. Its internal proxies for race end-run the Supreme

Court’s studied structure for the use of race in university admissions decisions.

It casts aside testing historically relied upon, admitting many top ten percent

minorities with significantly lower scores than rejected minorities and nonminorities alike. That these admitted minorities are academically able to

remain in the University does not respond to the reality that the Top Ten

Percent Law eliminated the consideration of test scores, and correspondingly

reduced academic selectivity, to produce increased enrollment of minorities.

Such costs may be intrinsic to affirmative action plans. If so, Grutter at least

(The district court noted there were 841 places, but that number included the admission of socalled “Group A” applicants who have extremely high AI scores but are not in the top ten

percent of their class. See id.) There were a total of 27,712 applicants for the fall class of

2008. Statistical Handbook 2009–2010, at 25 tbl.S21. Neither the record nor any public

information released by the University disclose what portion of that total applicant pool were

Texas residents, but if we assume that proportion of applicants from Texas matches the 90%

of admissions slots reserved for Texas applicants, one can estimate that there were 24,940

Texas applicants. Subtracting the 8,984 students admitted under the Top Ten Percent Law

yields an estimate of 15,956 applicants for 1,216 seats, or an acceptance rate of approximately

7.6%. By comparison, the overall acceptance rate at Ivy League schools for the class entering

Fall 2008 ranged from 8% (Harvard) to 21% (Cornell). See The Rankings: Best National

Universities, U.S. NEWS & WORLD REP., Sept. 2009, at 84–85.

Appellants here do not challenge the constitutionality of the Top Ten Percent Law. 

156

In fact, they endorse it as a race-neutral alternative to the Grutter plan. A court considering

the constitutionality of the Law would examine whether Texas enacted the Law (and

corresponding admissions policies) because of its effects on identifiable racial groups or in spite

of those effects. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979); cf. Brief of Social

Scientists Glenn C. Loury et al. as Amici Curiae in Support of Respondents, Grutter v.

Bollinger, 539 U.S. 306 (2003), available at 2003 WL 402129, at *2, *9–*10 (noting that “it is

not clear that [percentage] plans are actually race-neutral” and that some amici counsel in

Grutter “have signaled interest in moving on after this case to challenge these aspects of the

Texas program”).

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sought to minimize those costs through narrow tailoring. The Top Ten Percent

Law is anything but narrow.

In short, while the Top Ten Percent Law appears to succeed in its central

purpose of increasing minority enrollment, it comes at a high cost and is at best

a blunt tool for securing the educational benefits that diversity is intended to

achieve. We cannot fault UT’s contention that the Top Ten Percent Law is

plainly not the sort of workable race-neutral alternative that would be a

constitutionally mandated substitute for race-conscious university admissions

policies. We are keenly aware that the University turned to the Top Ten Percent

Law in response to a judicial ruling. Yet we cannot agree that it is irrelevant.

To the contrary, that the Top Ten Percent Law, accounting for the vast majority

of in-state admissions, threatens to erode the foundations UT relies on to justify

implementing Grutter policies is a contention not lacking in force. “Facially

neutral” has a talismanic ring in the law, but it can be misleading. It is here.

VII. CRITICAL MASS

Appellants contend that UT’s decision to reintroduce race-conscious

admissions was unconstitutional because minority enrollment already met or

exceeded “critical mass” when this decision was made, and thus any further

facial consideration of race was neither warranted nor constitutional.

Appellants claim the best measure of whether UT had attained the benefits of

diversity is the raw percentage of minorities enrolled. As a result of the

combined effects of changing demographics, targeted high school programs, and

the Top Ten Percent Law, total minority enrollment had increased over the

years. When the decision was made to reintroduce race-conscious admissions in

2004, underrepresented minorities made up 21.4% of the incoming class (4.5%

African-American and 16.9% Hispanic).

157

Fisher, 645 F. Supp. 2d at 593.

157

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Although Texas was not constitutionally required to enact the Top Ten

Percent Law, Appellants are correct that the decision to do so—and the

substantial effect on aggregate minority enrollment at the University—places

at risk UT’s race-conscious admissions policies. We are confident, and hold, that

a Grutter-style admissions system standing alone is constitutional. That said,

whether to overlay such a plan with the Top Ten Percent Law and how to

calibrate its flow presents a Hobson’s choice between the minority students it

contributes and the test of constitutional bounds it courts. True enough, the Top

Ten Percent Law is in a sense, perhaps a controlling sense, a “facially” raceneutral plan. But it was animated by efforts to increase minority enrollment,

and to the extent it succeeds it is because at key points it proxies for race.

A

Appellants propose various baseline levels of diversity which,they suggest,

would fully satisfy the University’s interest in attaining critical mass. They first

argue that if “from 13.5 to 20.1 percent” minority enrollment was adjudged to be

great enough diversity each year by Michigan’s Law School in Grutter, then the

21.4% minority enrollment that UT had achieved prior to reintroducing

race-conscious admissions must already have achieved critical mass. We find

this comparison inapt for numerous reasons.

Appellants’ comparison presumes that critical mass must have some fixed

upper bound that applies across different schools, different degrees, different

states, different years, different class sizes, and different racial and ethnic

subcomposition. It is based on Appellants’ continued insistence that the concept

of critical mass is defined by the minimum threshold for minority students to

have their ideas represented in class discussions and not to feel isolated or like

spokespersons for their race. As we have discussed, Grutter firmly rejects that

premise and defines critical mass by reference to a broader view of diversity.

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At oral argument, Appellants qualified this insistence and wisely conceded

that what constitutes critical mass in the eyes of one school might not suffice at

another. Grutter concerned a law school, whereas Appellants challenge UT’s

undergraduate program. Michigan’s Law School operates on a national level,

while UT focuses on recruiting and producing future leaders for Texas. The law

school enrolled approximately 350 students in its first-year class, few enough

students that diversity in the student body readily approximates diversity in the

classroom. In contrast, UT enrolls approximately 7,000 undergraduates in its

first-year class and has data showing diversity rates vary widely across

individual classrooms. African-Americans and Hispanics never represented

more than a combined 14.8% of the Michigan Law School’s applicant pool during

the examined time period, while those same underrepresented minorities were

158

28% of UT’s freshman applicant pool for Fall 2008.

159

Appellants point to the Supreme Court’s observation in United States v.

Virginia that the Virginia Military Institute “could achieve at least 10% female

enrollment—a sufficient critical mass to provide the female cadets with a

positive educational experience.” But this figure, even if accurate, covers only

160

one component of the multi-faceted concept of diversity elaborated in Grutter.

In any event, the claim that 10% minority enrollment is a ceiling to critical mass

is confounded by Grutter.

Appellants lastly note that minority enrollment at UT now exceeds the

level it had reached in the mid-1990s, pre-Hopwood, when the University was

free to obtain any critical mass it wanted through overtly race-based decisions.

UT responds that it has consistently maintained, both in the 2004 Proposal and

before this Court, that even before Hopwood it had never reached critical

Grutter, 539 U.S. at 384 tbls.1–2 (Rehnquist, C.J., dissenting). 158

2008 Top Ten Percent Report at 6 tbl.1. 159

 518 U.S. 515, 523 (1996) (internal quotation marks omitted).

160

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mass. While UT was making a greater use of race in that era, its pursuit of

161

diversity was constrained by other interests, such as admitting only

well-qualified students. We cannot assume that diversity levels immediately

before Hopwood were indicative of critical mass. Moreover, minority enrollment

in 1996 is not indicative of UT’s true pre-Hopwood diversity. While admissions

decisions in 1996 were not controlled by Hopwood, the case impacted enrollment,

resulting in fewer minority students. If one instead compares minority

enrollment from 1989 to 2004, a different picture emerges. In 2004, UT enrolled

significantly fewer African-Americans than it had in 1989 (309 compared to 380).

In addition, the 2004 entering class consisted of only 100 more Hispanics than

the 1989 class, a low number considering the vast increases in the Hispanic

population of Texas. Further, the 2004 Proposal demonstrated that the

percentage of diverse classrooms had declined since 1996. The decrease in

162

classroom diversity will only continue if additional minority representation is not

achieved, as the University plans to increase its number of course offerings in

future years. Finally, whatever levels of minority enrollment sufficed more than

a decade ago may no longer constitute critical mass today, given the social

changes Texas has undergone during the intervening years. Appellants’

proposed baselines are insufficient reason to doubt UT’s considered, good faith

conclusion that “the University still has not reached a critical mass at the

classroom level.”

163

Grutter pointedly refused to tie the concept of “critical mass” to any fixed

number. The Grutter Court approved of the University of Michigan Law School’s

goal of attaining critical mass even though the school had specifically abjured

See, e.g., 2004 Proposal at 24 (“[R]estoration to pre-Hopwood levels is not

161

sufficient.”).

Id. at 25 & tbl.8. 162

Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). 163

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any numerical target. The Court recounted how school officials had described

164

“critical mass” only through abstract concepts such as “meaningful numbers,”

“meaningful representation,” and “a number that encourages underrepresented

minority students to participate in the classroom and not feel isolated.” The

165

type of broad diversity Grutter approved does not lend itself to any fixed

numerical guideposts.

None of this is to say that Grutter left “critical mass” without objective

meaning. Rather, the legally cognizable interest—attaining a critical mass of

underrepresented minority students—“is defined by reference to the educational

benefits that diversity is designed to produce.” If a plaintiff produces evidence

166

that calls into question a university’s good faith pursuit of those educational

benefits, its race-conscious admissions policies may be found unconstitutional.

We are not persuaded, however, that any of the benchmarks suggested by

Appellants succeed at calling that judgment into question.

B

As we have observed, benchmarks aside, UT’s claim that it has not yet

achieved critical mass is less convincing when viewed against the backdrop of

the Top Ten Percent Law, which had already driven aggregate minority

enrollment up to more than one-fifth ofthe University’s incoming freshman class

before less subtle race-conscious admissions were reintroduced.

The chief difficulty with looking to aggregate minority enrollment is that

it lumps together distinct minority groups from different backgrounds who may

bring various unique contributions to the University environment.

African-American and Hispanic students, for example, are not properly

Grutter, 539 U.S. at 318.

164

Id. 165

Id. at 330.

166

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interchangeable for purposes of determining critical mass, and a university must

be sensitive to important distinctions within these broad groups. In Parents

Involved, the Supreme Court specifically faulted two school districts for

employing “only a limited notion of diversity” that lumped together very

different racial groups. One school district classified students exclusively as

167

“white” or “nonwhite”; another labeled them as “black” or “other.” This “binary

168

conception of race” runs headlong into the central teaching of Grutter and other

precedents which instruct that a university must give serious and flexible

consideration to all aspects of diversity.

169

On this record, we must conclude that the University has acted with

appropriate sensitivity to these distinctions. Although the aggregate number of

underrepresented minorities may be large, the enrollment statistics for

individual groups when UT decided to reintroduce race as a factor in admissions

decisions does not indicate critical mass was achieved. Further, we recognize

that some year-to-year fluctuation in enrollment numbers is inevitable, so

statistics from any single year lack probative force; the University needs to

maintain critical mass in years when yield is low just as it does when yield is

high.

It is also apparent that UT has given appropriate consideration to whether

aggregate minority enrollment is translating into adequate diversity in the

classroom. Through two separate studies, the 2004 Proposal reached a serious

and good faith determination that the aggregate number overstates the

University’s true level of diverse interaction. UT sought to obtain the full

Parents Involved, 551 U.S. at 723.

167

Id. at 712, 716. 168

Id. at 735. Even current labels of “Hispanic,” “African-American,” or “Asian” may 169

lump very different ethnic groups into a single category.

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educational benefits of diversity as approved in Grutter and properly concluded

that race-conscious admissions measures would help accomplish its goals.

C

Appellants argue that even if UT had not yet achieved critical mass under

race-neutral policies, it had come close enough that the reintroduction of

race-conscious measures was unwarranted. Pointing to the Supreme Court’s

recent decision in Parents Involved, they argue that the University’s use of race

is unnecessary, and therefore not narrowly tailored, because it has only a

“minimal effect.” The district court thought this was an attempt “to force UT

into an impossible catch-22: on the one hand, it is well-established that to be

narrowly tailored the means ‘must be specifically and narrowly framed to

accomplish’ the compelling interest, but on the other hand, according to

[Appellants], the ‘narrowly tailored’ plan must have more than a minimal

effect.”

170

Parents Involved does not support the cost-benefit analysis that Appellants

seek to invoke. Rather, Parents Involved was primarily a critique of the school

districts’ “extreme approach” that used binary racial categories to classify

schoolchildren. The Court referred to the “minimal effect” sought by this

171

policy as evidence that other, more narrowly tailored means would be effective

to serve the school districts’ interests. The Court did not hold that a

172

Grutter-like system would be impermissible even after race-neutral alternatives

have been exhausted because the gains are small. To the contrary, Justice

Kennedy—who provided the fifth vote in Parents Involved—wrote separately to

Fisher, 645 F. Supp. 2d at 609.

170

Parents Involved, 551 U.S. at 735.

171

Id. at 733.

172

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clarify that “a more nuanced, individual evaluation . . . . informed by Grutter”

would be permissible, even for the small gains sought by the school districts.

173

VIII. CONCLUSION

Mindful of the time frame of this case, we cannot say that under the

circumstances before us UT breached its obligation to undertake a “serious, good

faith consideration” before resorting to race-conscious measures; yet we speak

with caution. In this dynamic environment, our conclusions should not be taken

to mean that UT is immune from its obligation to recalibrate its dual systems of

admissions as needed, and we cannot bless the university’s race-conscious

admissions program in perpetuity. Rather, much like judicial approval of a

state’s redistricting of voter districts, it is good only until the next census

count—it is more a process than a fixed structure that we review. The

University’s formal and informal review processes will confront the stark fact

that the Top Ten Percent Law, although soon to be restricted to 75% of the

incoming class, increasingly places at risk the use of race in admissions. In

1998, those admitted under the Top Ten Percent Law accounted for 41% of the

Texas residents in the freshman class, while in 2008, top ten percent students

comprised 81% of enrolled Texan freshmen. This trajectory evidences a risk

174

of eroding the necessity of using race to achieve critical mass with accents that

may, if persisted in, increasingly present as an effort to meet quantitative goals

drawn from the demographics of race and a defiance of the now-demanded focus

upon individuals when considering race.

A university may decide to pursue the goal of a diverse student body, and

it may do so to the extent it ties that goal to the educational benefits that flow

from diversity. The admissions procedures that UT adopted, modeled after the

Id. at 790 (opinion of Kennedy, J.).

173

2008 Top Ten Percent Report at 7 tbl.1a. 174

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plan approved by the Supreme Court in Grutter, are narrowly tailored—

procedures in some respects superior to the Grutter plan because the University

does not keep a running tally of underrepresented minority representation

during the admissions process. We are satisfied that the University’s decision

to reintroduce race-conscious admissions was adequately supported by the

“serious, good faith consideration” required by Grutter. Finally, it is neither our

role nor purpose to dance from Grutter’s firm holding that diversity is an interest

supporting compelling necessity. Nor are we inclined to do so. The role of black

athletes in the southern universities forty years ago presents diversity’s

potential better than can we, although at that early juncture, it was ability

overcoming a barrier of race.

175

The judgment of the district court is AFFIRMED.

See David K. Wiggins & Patrick B. Miller, THE UNLEVEL PLAYING FIELD: A

175

DOCUMENTARY HISTORY OF THE AFRICAN AMERICAN EXPERIENCE IN SPORT 443 (2003) (quoting

Roy Wilkins, who wrote in the 1930s that black athletes “carry more interracial education

than all the erudite philosophy ever written on race” (internal quotation marks omitted)).

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KING, Circuit Judge, specially concurring:

I concur in the judgment and in the analysis and application of Grutter in

Judge Higginbotham’s opinion. No party challenged, in the district court or in

this court, the validity or the wisdom of the Top Ten Percent Law. We have no

briefing on those subjects, and the district court did not consider them.

Accordingly, I decline to join Judge Higginbotham’s opinion insofar as it

addresses those subjects.

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EMILIO M. GARZA, Circuit Judge, specially concurring:

Whenever a serious piece of judicial writing strays from fundamental

principles of constitutional law, there is usually a portion of such writing where

those principles are articulated, but not followed. So it goes in Grutter, where

a majority of the Court acknowledged strict scrutiny as the appropriate level of

review for race-based preferences in university admissions, but applied a level

of scrutiny markedly less demanding. To be specific, race now matters in

university admissions, where, if strict judicial scrutiny were properly applied,

it should not.

Today, we follow Grutter’s lead in finding that the University of Texas’s

race-conscious admissions program satisfies the Court’s unique application of

strict scrutiny in the university admissions context. I concur in the majority

opinion, because, despite my belief that Grutter represents a digression in the

course of constitutional law, today’s opinion is a faithful, if unfortunate,

application of that misstep. The Supreme Court has chosen this erroneous path

and only the Court can rectify the error. In the meantime, I write separately to

underscore this detour from constitutional first principles.

I

The Equal Protection Clause of the Fourteenth Amendment provides that

no State shall “deny to any person within its jurisdiction the equal protection of

the laws.” U.S. CONST. amend. XIV. One of the Amendment’s “core principles”

is to “do away with all governmentally imposed discriminations based on race,”

Palmore v. Sidoti, 466 U.S. 429, 432 (1984), and to create “a Nation of equal

citizens in a society where race is irrelevant to personal opportunity and

achievement.” Richmond v. J.A. Croson Co., 488 U.S. 469, 505–06 (1988). This

is why “[r]acial and ethnic distinctions of any sort are inherently suspect and .

. . call for the most exacting judicial examination.” Miller v. Johnson, 515 U.S.

900, 904 (1995) (quoting Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291

(1978) (opinion of Powell, J.)). It matters not whether the racial preference is

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characterized as invidious or benign: strict scrutiny applies regardless of “the

race of those burdened or benefitted by a particular classification.” Shaw v.

Reno, 509 U.S. 630, 650–51 (1993) (quoting Croson, 488 U.S. at 494). To survive

such exacting scrutiny, laws classifying citizens on the basis of race must be

“narrowly tailored to achieving a compelling state interest.” Miller, 515 U.S. at

904.

In Grutter, the majority acknowledged these fundamental principles, see

Grutter v. Bollinger, 539 U.S. 306, 326–27 (2003), but then departed and held,

for the first time, that racial preferences in university admissions could be used

to serve a compelling state interest. Id. at 328. Though the Court recognized

that strict scrutiny should govern the inquiry into the use of race in university

admissions, id. at 326, what the Court applied in practice was something else

entirely.

A

The Grutter majority asserts that “[s]trict scrutiny is not ‘strict in theory,

but fatal in fact.’” 539 U.S. at 326 (quoting Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 237 (1995)). But since the Court began applying strict scrutiny to

review governmental uses of race in discriminating between citizens,the number

of cases in which the Court has permitted such uses can be counted on one

hand. The Court has rejected numerous intuitively appealing justifications

1

offered for racial discrimination, such as remedying general societal

See Grutter, 539 U.S. at 328 (recognizing racial diversity “in the context of higher 1

education” as compelling); Freeman v. Pitts, 503 U.S. 467, 494 (1992) (remedying the effects

of past intentional discrimination a compelling governmental interest); Korematsu v. United

States, 323 U.S. 214, 216 (1944) (“[P]ressing public necessity may sometimes justify the

existence of [racial discrimination]; racial antagonism never can.”). In Fullilove v. Klutznick,

448 U.S. 448 (1980), the Court upheld a federal law that set aside public works monies for

minority-owned businesses. Although Fullilove has not been expressly overruled, it is unlikely

that its holding survives the Court’s later Equal Protection decisions. See ERWIN

CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 9.3.5, at 738, 742–43 (3d

ed. 2006). Korematsu’s authority is likewise suspect. 

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discrimination, see Croson, 488 U.S. at 496–98 (plurality opinion); enhancing the

number of minority professionals available to work in underserved minority

communities, see Bakke, 438 U.S. at 310–11 (opinion of Powell, J.); and providing

role models for minority students, see Wygant v. Jackson Bd. of Educ., 476 U.S.

267, 275–76 (1986) (plurality opinion). In all of these cases, the Court found that

the policy goals offered were insufficiently compelling to justify discrimination

based on race.

In those rare cases where the use of race properly furthered a compelling

state interest, the Court has emphasized that the means chosen must “work the

least harm possible,” Bakke, 438 U.S. at 308 (opinion of Powell, J.), and be

narrowly tailored to fit the interest “with greater precision than any alternative

means.” Grutter, 539 U.S. at 379 (Rehnquist, C.J., dissenting) (quotation

omitted). Moreover, the failure to consider available race-neutral alternatives

and employ them if efficacious would cause a program to fail strict scrutiny. See

Wygant, 476 U.S. at 280 n.6 (plurality opinion) (the “term ‘narrowly tailored’ .

. . requires consideration of whether lawful alternative and less restrictive

means could have been used.”); see also Adarand, 515 U.S. at 237–38; Croson,

488 U.S. at 507; Fullilove v. Klutznick, 448 U.S. 448, 537 (1980) (Stevens, J.,

dissenting) (“Racial classifications are simply too pernicious to permit any but

the most exact connection between justification and classification.”).

Beyond the use of race-neutral alternatives, the Court, pre-Grutter, had

considered several other factors in determining whether race-conscious programs

were narrowly tailored. Programs employing a quota system would fail this

inquiry, as would programs of unlimited duration. See Bakke, 438 U.S. at

315–18; Croson, 488 U.S. at 498. The Court looked to a program’s flexibility and

its capacity for individualized consideration. See United States v. Paradise, 480

U.S. 149, 177 (1987) (plurality opinion); Croson, 488 U.S. at 508. The Court also

considered the relationship between the numerical goal and the percentage of

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minority group members in the relevant population, and whether the means

chosen were likely to be overinclusive. See Croson, 488 U.S. at 506–10. Finally,

the Court considered the program’s burden on innocent third parties. See, e.g.,

Metro Broad., Inc. v. FCC, 497 U.S. 547, 630 (1990) (O’Connor, J., dissenting)

(programs should not “unduly burden individuals who are not members of the

favored racial and ethnic groups”); Bakke, 438 U.S. at 308 (opinion of Powell, J.).

Grutter changed this. After finding that racial diversity at the University

of Michigan Law School (“Law School”) was a compelling governmental interest,

the Court redefined the meaning of narrow tailoring. See Grutter, 539 U.S. at

387 (Kennedy, J., dissenting) (“The Court, however, does not apply strict

scrutiny. By trying to say otherwise, it undermines both the test and its own

controlling precedents.”); see generally Ian Ayres & Sydney Foster, Don’t Tell,

Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517

(2007). The Court replaced narrow tailoring’s conventional “least restrictive

means” requirement with a regime that encourages opacity and is incapable of

meaningful judicial review under any level of scrutiny. Courts now simply

assume, in the absence of evidence to the contrary, that university

administrators have acted in good faith in pursuing racial diversity, and courts

are required to defer to their educational judgments on how best to achieve it.

Grutter, 539 U.S. at 328–29. What is more, the deference called for in Grutter

seems to allow universities, rather than the courts, to determine when the use

of racial preferences is no longer compelling. See id. at 343 (“We take the Law

School at its word that it would ‘like nothing better than to find a race-neutral

admissions formula’ and will terminate its race-conscious admissions program

as soon as practicable.”). This new species of strict scrutiny ensures that only

those admissions programs employing the most heavy-handed racial preferences,

and those programs foolish enough to maintain and provide conclusive data, will

be subject to “exacting judicial examination.” Miller, 515 U.S. at 904. Others,

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like the University of Michigan in Grutter, and the University of Texas here, can

get away with something less.

B

Setting aside for a moment Grutter’s finding that racial diversity within

the Law School was a compelling state interest, see infra Sections I.D and III, I

find troubling the Court’s treatment of whether the Law School’s chosen

means—using race as a “plus” factor—was narrowly tailored to achieving that

end. The Court discussed five hallmarks of a narrowly tailored race-conscious

admissions program in answering this question: (1) the absence of quotas; (2) a

program that does not unduly harm any racial group; (3) serious, good-faith

consideration of race-neutral alternatives; (4) a program that contains a sunset

provision or some logical end point; and (5) individualized consideration of all

applicants. See 539 U.S. at 335–43. The Court’s opinion effectively emptied at

least three of these criteria of their probative content, leaving the first and fifth

as determinative in any narrow tailoring inquiry. See Ayres & Foster, 85 TEX.

L. REV. at 543.

First, Grutter defined a quota as reserving a fixed number or percentage

of opportunities for certain minority groups, and insulating individuals from

those groups from competition with all other candidates for available seats. Id.

at 333–36. These prohibitions were clear well before Grutter. See Bakke, 438

U.S. at 317; Croson, 488 U.S. at 496. Only those programs with overt numerical

set-asides or separate minority admissions tracks would fail this requirement.

Next, the Court found that race-conscious admissions programs do not

unduly burden innocent third parties so long as they provide individualized

consideration. Grutter, 539 U.S. at 341 (“[I]n the context of its individualized

inquiry into the possible diversity contributions of all applicants, the Law

School’s race-conscious admissions program does not unduly harm nonminority

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applicants.”). Here, the Court collapsed the second narrow tailoring criterion

into the fifth.

Grutter also held that there were no workable race-neutral alternatives at

the Law School, such as “using a lottery system” or “decreasing the emphasis for

all applicants on undergraduate GPA and LSAT scores.” Id. at 340. The Court

likewise rejected the United States’ argument that the Law School’s plan was

not narrowly tailored because race-neutral alternatives that had proven effective

elsewhere (i.e., the percentage plans utilized in California, Florida, and Texas)

were available and would deliver the educational benefits the Law School was

seeking. Id. The Court held that “[n]arrow tailoring does not require exhaustion

of every conceivable race-neutral alternative. . . . Narrow tailoring does,

however, require serious, good faith consideration of workable race-neutral

alternatives that will achieve the diversity the university seeks.” Id. at 339.

After Grutter, universities are no longer required to use the most effective raceneutral means. So long as admissions officials have given “serious, good faith

consideration” to such programs, they are free to pursue less effective

alternatives that serve the interest “about as well.” Id. (citing Wygant, 476 U.S.

at 280 n.6 (plurality opinion)). Thus, this third criterion is now essentially

without meaning. Given the deference that universities’ educational judgments

are to be afforded post-Grutter, “serious, good faith consideration” is a peculiarly

low bar that will be satisfied in most every case. Compare id. at 339 (narrow

tailoring “require[s] serious, good faith consideration of workable race-neutral

alternatives”), with id. at 329 (“[G]ood faith on the part of a university is

‘presumed’ absent a showing to the contrary.”) (citation and internal quotation

marks omitted).

Finally, while the Court acknowledged that race-conscious admissions

programs must be limited in time, such as by sunset provisions or periodic

reviews to determine whether the preferences remain necessary, the Court

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suspended application of this criterion for twenty-five years. Id. at 343 (“We

expect that 25 years from now, the use of racial preferences will no longer be

necessary to further the interest approved today.”). In doing so, the Grutter

majority simply accepted the Law School’s promise that it would terminate its

race-conscious policies as soon as possible. See id. at 343 (“We take the Law

School at its word that it would ‘like nothing better than to find a race-neutral

admissions formula’ and will terminate its race-conscious admissions program

as soon as practicable.”). The Court’s approval here is remarkable given the

constitutional gravity of this experiment (i.e., the Law School’s allocation of

preferences along racial lines). This fourth criterion will now be considered

satisfied with little or no showing on the part of university administrators, at

least until 2028.

And thus, all that truly remains of strict scrutiny’s narrow tailoring

inquiry post-Grutter is the requirement of “individualized consideration.” But

what does this term mean specifically? Grutter never tells us. Moreover, the

weight given to race as part of this individualized consideration is purposefully

left undefined, making meaningful judicial review all but impossible.

C

In Grutter, the University of Michigan Law School sought to achieve a

student body that was both academically strong and diverse along several

dimensions, including race. There, the Court endorsed the Law School’s “highly

individualized, holistic review of each applicant’s file, giving serious

consideration to all the ways an applicant might contribute to a diverse

educational environment.” Id. at 337. The Court noted approvingly that the

Law School had “no policy . . . of automatic acceptance or rejection based on any

single ‘soft’ variable.” Id. The Grutter majority permitted the use of race and

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ethnicity as “plus” factors within the Law School’s holistic review, but this

simply raises the question: how much of a plus? Grutter did not say.

2

Instead, the Court implicitly forbade universities from quantifying racial

preferences in their admissions calculus. Contrasting the admissions system

found unconstitutional in Gratz, the Grutter majority noted that “the Law School

awards no mechanical, predetermined diversity ‘bonuses’ based on race or

ethnicity.” Id. (citing Gratz v. Bollinger, 539 U.S. 244, 271–72 (2003)). On this

view, rigid point systems that allocate preference points for racial and ethnic

status are unconstitutional because they “preclude[] admissions counselors from

conducting the type of individualized consideration the Court’s opinion in

Grutter requires.” Gratz, 539 U.S. at 277 (O’Connor, J., concurring) (citation

omitted).

But it is not clear, to me at least, how using race in the holistic scoring

system approved in Grutter is constitutionally distinct from the point-based

system rejected in Gratz. If two applicants, one a preferred minority and one

3

nonminority, with application packets identical in all respects save race would

be assigned the same score under a holistic scoring system, but one gets a higher

score when race is factored in, how is that different from the mechanical groupbased boost prohibited in Gratz? Although one system quantifies the preference

The Court’s discussion of race as a “plus” factor takes place in the context of strict 2

scrutiny’s narrow tailoring inquiry. Whether race should be considered at all is a separate,

more fundamental, matter. See infra Section III. 

 Although I do not believe the government’s use of race in university admissions can 3

ever serve a compelling interest, assuming that it can, there is no reason why a well-designed

point system could not account for an applicant’s race, among other variables, and yet still

provide meaningful, individualized consideration. See Ayres & Foster, 85 TEX. L. REV. at

566–70; see also Gratz, 539 U.S. at 295 (Souter, J., dissenting) (“[I]t is hard to see what is

inappropriate in assigning some stated value to a relevant characteristic, whether it be

reasoning ability, writing style, running speed, or minority race. Justice Powell’s plus factors

necessarily are assigned some values. The college simply does by a numbered scale what the

law school accomplishes in its ‘holistic review’; the distinction does not imply that applicants

to the undergraduate college are denied individualized consideration . . . .” (citation omitted)).

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and the other does not, the result is the same: a determinative benefit based on

race.

Grutter’s new terminology like “individualized consideration” and “holistic

review” tends to conceal this result. By obscuring the University of Michigan’s

use of race in these diffuse tests, the Court allowed the Law School to do covertly

what the undergraduate program could not do overtly. See Gratz, 539 U.S. at

270–76. This much is clear and has been discussed elsewhere. I write

4

separately to add my view, confirmed while deciding this appeal, that Grutter’s

narrow tailoring inquiry—now reduced to testing for individualized

consideration—is incapable of meaningful judicial review.

Traditionally, strict scrutiny required that the overall benefits of programs

employing racial classifications justified the overall costs. See Ayres & Foster,

5

85 TEX. L. REV. at 526 & n.38. In Grutter, not only did the Court fail to conduct

such an analysis, it rejected the only means for measuring the constitutionally

relevant costs and benefits. Id. Although I disagree with the Court that raceconscious policies can ever serve a compelling interest in university admissions,

by prohibiting race and ethnicity from being quantified at all, Grutter eliminated

any chance for courts to critically evaluate whether race is, in fact, the defining

feature of an admissions packet. Post-Grutter, there is no way to assess how

much of a “plus” race gets as a plus-factor in any admissions system. And

without the ability to measure the number of “but-for” admits (i.e., admitted

minority students for whom race was the decisive factor), courts cannot

See, e.g., Larry Alexander & Maimon Schwarzschild, Grutter or Otherwise: Racial

4

Preferences and Higher Education, 21 CONST. COMMENT. 3 (2004); CHEMERINSKY,

CONSTITUTIONAL LAW 744.

For example, a race-conscious admissions policy that added just one, three, or five 5

members of a preferred minority group to an enrolling class of 6,700 would fail to be narrowly

tailored. Such a program would have an intolerably high cost for little return. See infra

Section II. 

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meaningfully evaluate whether a university’s use of race fits its asserted interest

narrowly. See id. at 527–41, 575–82. In short, it is impossible to subject such

6

uses of race to strict scrutiny. Grutter rewards admissions programs that

remain opaque.

Even assuming the Court’s “educational benefits of diversity” justification

holds true, see infra Section I.D, there are far more effective race-neutral means

of screening for the educational benefits that states like Michigan and Texas

ostensibly seek. To the degree that state universities genuinely desire students

with diverse backgrounds and experiences, race-neutral factors like specific

hardships overcome, extensive travel, leadership positions held, volunteer and

work experience, dedication to particular causes, and extracurricular activities,

among many other variables, can be articulated with specificity in the

admissions essays. These markers for viewpoint diversity are far more likely

7

to translate into enhanced classroom dialogue than a blanket presumption that

race will do the same. Moreover, these markers represent the kind of life

experiences that reflect industry. Race cannot. While race inevitably colors an

individual’s life and views, that facet of race and its impact on the individual can

be described with some precision through an admissions essay. We should not

See also id. at 528 n.42 (citing, inter alia, WILLIAM G. BOWEN & DEREK BOK, THE 6

SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND

UNIVERSITY ADMISSIONS 31–39 (1998)) (observing that the degree of racial preferences can be

measured by examining the number of but-for admits and the qualification differentials

between but-for admits and nonpreferred applicants who would have been admitted in the

absence of affirmative action). 

In addition to the two essays that UT requires as part of each application packet, the 7

University considers several of the factors described above in determining an applicant’s

personal achievement score. See Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 597

(W.D. Tex. 2009) (“The third [Personal Achievement Index] element is the personal

achievement score, which is based on an evaluation of the file in its entirety by senior

members of the admissions staff. The evaluators conduct a holistic review considering the

applicant’s demonstrated leadership qualities, extracurricular activities, awards and honors,

work experience, service to the school or community, and special circumstances.”). 

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presume that race shapes everyone’s experiences in the same ways and award

preference (or a bonus, or a “plus”) accordingly. Such a policy, however labeled,

is not narrowly tailored.

Finally, the Court’s unusual deference to educators’ academic judgments

that racial diversity is a compelling interest, coupled with the deference

allegedly owed to their determination of when the use of race is no longer

necessary, see id. at 343, would appear to permit race-based policies indefinitely.

For example, notwithstanding that a university’s race-conscious policies had

achieved 25% African-American and 25% Hispanic enrollment in the student

body generally, that university could still justify the use of race in admissions

if these minority students were disproportionately bunched in a small number

of classes or majors. In fact, the majority’s application of Grutter today reaches

just such a result.

Despite Top Ten Percent’s demonstrable impact on minority enrollment

at the University of Texas, the majority opinion holds that the University’s use

of race in admissions can be justified by reference to the paucity of minority

students in certain majors:

While the [Top Ten Percent] Law may have contributed to an

increase in overall minority enrollment, those minority students

remain clustered in certain programs, severely limiting the

beneficial effects of educational diversity. For example, nearly a

quarter of the undergraduate students in UT’s College of Social

Work are Hispanic, and more than 10% are African-American. In

the College of Education, 22.4% of students are Hispanic and 10.1%

are African-American. By contrast, in the College of Business

Administration, only 14.5% of the students are Hispanic and 3.4%

are African-American. It is evident that if UT is to have diverse

interactions, it needs more minority students who are interested in

and meet the requirements for a greater variety of colleges, not

more students disproportionately enrolled in certain programs.

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Ante at 42. If this is so, a university’s asserted interested in racial diversity

could justify race-conscious policies until such time as educators certified that

the elusive critical mass had finally been attained, not merely in the student

body generally, but major-by-major and classroom-by-classroom.

Given the “large-scale absence of African-American and Hispanic students

from thousands of classes” at the University of Texas, Fisher, 645 F. Supp. 2d at

607, today’s decision ratifies the University’s reliance on race at the

departmental and classroom levels, and will, in practice, allow for race-based

preferences in seeming perpetuity. Such a use of race “has no logical stopping

point” and is not narrowly tailored. See Croson, 488 U.S. at 498 (citing Wygant,

476 U.S. at 275). Allowing race-based social engineering at the university level

is one thing, but not nearly as invasive as condoning it at the classroom level.

I cannot accept that the Fourteenth Amendment permits this level of granularity

to justify dividing students along racial lines.

D

The same imprecision that characterizes Grutter’s narrow tailoring

analysis casts doubt on its discussion of racial diversity as a compelling state

interest. Grutter found that the Law School had a compelling interest in

“securing the educational benefits of a diverse student body,” and that achieving

a “critical mass” of racially diverse students was necessary to accomplish that

goal. Id. at 333. The Law School defined “critical mass” as “a number that

encourages underrepresented minority students to participate in the classroom

and not feel isolated . . . or like spokespersons for their race.” Id. at 318–19. The

Court clarified: “critical mass is defined by reference to the educational benefits

that diversity is designed to produce.” Id. at 330. Justice O’Connor’s majority

opinion identified three such constitutionally relevant benefits: (i) increased

perspective in the classroom; (ii) improved professional training; and (iii)

enhanced civic engagement. Id. at 330–33. The first element is based on Justice

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Powell’s focus in Bakke on the campus-level benefits of diversity. The second two

are new.

8

My difficulty with Grutter’s “educational benefits of diversity” discussion

is that it remains suspended at the highest levels of hypothesis and speculation.

And unlike ordinary hypotheses, which must be testable to be valid, Grutter’s

thesis is incapable of testing. Justice O’Connor’s majority opinion rests almost

entirely on intuitive appeal rather than concrete evidence.

1

The first constitutionally relevant benefit that makes up Grutter’s

compelling interest is racial diversity’s direct impact in the classroom. Here, the

Court concluded that diverse perspectives improve the overall quality of

education because “classroom discussion is livelier, more spirited, and simply

more enlightening and interesting when students have the greatest possible

variety of backgrounds.” Id. at 330 (internal quotation marks omitted). This

rationale conforms to Justice Powell’s opinion in Bakke that universities should

pursue “[t]he atmosphere of speculation, excitement and creation” that is

“promoted by a diverse student body.” 438 U.S. at 312 (opinion of Powell, J.).

9

I question the validity of this surmise.

See Robert C. Post, The Supreme Court, 2002 Term—Forward: Fashioning the Legal 8

Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 59–60 (2003) (“Although Grutter

casts itself as merely endorsing Justice Powell’s opinion in Bakke, Grutter’s analysis of

diversity actually differs quite dramatically from Powell’s. Powell conceptualized diversity as

a value intrinsic to the educational process itself. He regarded diversity as essential to ‘the

quality of higher education,’ because education was a practice of enlightenment, ‘of

speculation, experiment, and creation,’ that thrived on the ‘robust exchange of ideas;

characteristically provoked by confrontation between persons of distinct life experiences. . .

. [Grutter] instead conceives of education as instrumental for the achievement of extrinsic

social goods like professionalism, citizenship, or leadership. . . . Grutter’s justifications for

diversity thus potentially reach far more widely than do Powell’s.”); see also Ayres & Foster,

85 TEX. L. REV. at 578 n.215 (citing commentary).

Justice Powell’s opinion in Bakke conspicuously avoided claiming a categorical 9

educational benefit of diversity, asserting only the potential for such benefits. See 438 U.S.

at 314 (opinion of Powell, J.).

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Nonetheless, assuming a critical mass of minority students could

perceptibly improve the quality of classroom learning, how would we measure

success? By polling students and professors, as the University of Texas has

done? How would we know whether the substantial social harm we are

10

tolerating by dividing students based on race is worth the cost? That classroom

discussion is, in fact, being enhanced? How can a party prove that it is? How

can an opposing party prove that it is not?

My concern with allowing viewpoint diversity’s alleged benefits to justify

racial preference is that viewpoint diversity is too theoretical and abstract. It

cannot be proved or disproved. Sure, the Grutter majority cited to expert reports

and amicus briefs from corporate employers as evidence that student body

diversity improves educational outcomes and better prepares students for the

workforce. Id. at 330. But this support can be easily manipulated. If all a

11

university “need do is find . . . report[s],” studies, or surveys to implement a raceconscious admissions policy,“the constraints of the Equal Protection Clause will,

in effect, have been rendered a nullity.” Croson, 488 U.S. at 504; see also J.E.B.

v. Alabama ex rel. T.B., 511 U.S. 127, 139 n.11 (1994) (“[C]lassifications that rest

on impermissible stereotypes violate the Equal Protection Clause, even when

some statistical support can be conjured up for the generalizations.”). Grutter

permits race-based preferences on nothing more than intuition—the type that

strict scrutiny is designed to protect against. See 539 U.S. at 327 (“Absent

searching judicial inquiry into the justification for such race-based measures, we

have no way to determine what classifications are benign or remedial and what

 Every measure of social benefit or harm would be subjective and, at worst, capable 10

of manipulation through framing biases.

See Alexander & Schwarzschild, 21 CONST. COMMENT. at 5 n.9 (criticizing the Court’s 11

undue reliance on amicus briefs from corporate employers). 

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classifications are in fact motivated by illegitimate notions of racial inferiority

or simple racial politics.”) (citation and internal quotation marks omitted).

Grutter and Bakke err by simply assuming that racial diversity begets

greater viewpoint diversity. This inference is based on the assumption that

members of minority groups, because of their racial status, are likely to have

unique experiences and perspectives incapable of expression by individuals from

outside that group. But as the Court has recognized elsewhere, the Constitution

prohibits state decisionmakers from presuming that groups of individuals,

whether classified by race, ethnicity, or gender, share such a quality collectively.

See Miller, 515 U.S. at 914 (the Equal Protection Clause forbids “the demeaning

notion that members of the defined racial groups ascribe to certain ‘minority

views’ that must be different from those of other citizens.”) (citation omitted).

There is no one African-American or Hispanic viewpoint, and, in fact, Grutter

12

approved the Law School’s diversity rationale precisely because of the role that

racial diversity can play in dispelling such falsehoods. See id. at 320 (citing

expert testimony suggesting that “when a critical mass of underrepresented

minority students is present, racial stereotypes lose their force because

nonminority students learn there is no ‘minority viewpoint’ but rather a variety

of viewpoints among minority students.”); and id. at 333 (“[D]iminishing the

force of such stereotypes is a crucial part of the Law School’s mission, and one

that it cannot accomplish with only token numbers of minority students.”).

For example, life experiences differ significantly if a Hispanic student’s ethnicity 12

originates in Mexico as opposed to Spain, or, for that matter, any of various Central and South

American countries. Likewise, an African-American student whose roots come from Nigeria

would be distinct in culture and ethnicity from a student whose ancestry originated in Egypt

or Haiti. This same principle applies for students from non-preferred racial classes. For

example, second-generation students from English, Irish, Scottish, or Australian ancestry

would come with very different cultural experiences, and yet all of these students would be

grouped together as “White” in racial classification systems like the one used at the University

of Texas. 

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 Grutter sought to have it both ways. The Court held that racial diversity

was necessary to eradicate the notion that minority students think and behave,

not as individuals, but as a race. At the same time, the Court approved a policy

granting race-based preferences on the assumption that racial status correlates

with greater diversity of viewpoints.

2

Grutter’s second asserted educational benefit of diversity relates to

improved professional training. Here, Justice O’Connor writes that diversity

“promotes cross-racial understanding, helps to break down racial stereotypes,

and enables students to better understand persons of different races.” Id. at 330

(internal quotation marks and brackets omitted). Such training is essential, the

argument goes, for future leaders who will eventually work within and supervise

a racially diverse workforce. Id. at 330–31.

State universities are free to define their educational goals as broadly as

needed to serve the public interest. We defer to educators’ professional

judgments in setting those goals. Grutter, 539 U.S. at 328 (“Our holding today

is in keeping with our tradition of giving a degree of deference to a university’s

academic decisions, within constitutionally proscribed limits.”). My concern,

discussed throughout this opinion, is not that Grutter commands such deference,

but that it conflated the deference owed to a university’s asserted interest with

deference to the means used to attain it. See id. at 388 (Kennedy, J., dissenting)

(“The Court confuses deference to a university’s definition of its educational

objective with deference to the implementation of this goal.”).

There is, however, one aspect of the Court’s “improved professional

training” rationale that I find especially troubling. While Grutter made much

of the role that educational institutions play in providing professional training,

see id. at 331 (“We have repeatedly acknowledged the overriding importance of

preparing students for work and citizenship”), the cases the Court relied on

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involved primary and secondary schools. See id. (citing Plyer v. Doe, 457 U.S.

202, 221 (1982) (describing education as pivotal to “sustaining our political and

cultural heritage”) and ibid. (citing Brown v. Bd. of Educ., 347 U.S. 483, 493

(1954) (“education . . . is the very foundation of good citizenship.”)). I question

whether these cases apply with equal force in the context of higher education,

where academic goals are vastly different from those pursued in elementary and

secondary schools. Moreover, a university’s self-styled educational goals, for

example, promoting “cross-racial understanding” and enabling students “to

better understand persons of different races,” could just as easily be facilitated

in many other public settings where diverse people assemble regularly: in the

workplace, in primary and secondary schools, and in social and community

groups. See Grutter, 539 U.S. at 347–48 (Scalia, J., dissenting). I do not believe

that the university has a monopoly on furthering these societal goals, or even

that the university is in the best position to further such goals. Notwithstanding

an institution’s decision to expand its educational mission more broadly, the

university’s core function is to educate students in the physical sciences,

engineering, social sciences, business and the humanities, among other academic

disciplines.

3

Finally, Grutter articulated a third benefit of racial diversity in higher

education: enhancing civic engagement. Here, the Court wrote that:

Effective participation by members of all racial and ethnic groups in

the civic life of our Nation is essential if the dream of one Nation,

indivisible, is to be realized.

. . .

In order to cultivate a set of leaders with legitimacy in the eyes of

the citizenry, it is necessary that the path to leadership be visibly

open to talented and qualified individuals of every race and

ethnicity. All members of our heterogeneous society must have

confidence in the openness and integrity of educational institutions

that provide this training. . . . Access to [higher] education . . . must

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be inclusive of talented and qualified individuals of every race and

ethnicity, so that all members of our heterogeneous society may

participate in the educational institutions that provide the training

and education necessary to succeed in America.

Id. at 332–33.

Unlike the first two “educational benefits of diversity,” which focused on

improving classroom discussion and professional training, this third claimed

benefit plainly has nothing to do with the university’s core education and

training functions. Instead, Grutter is concerned here with role that higher

education plays in a democratic society, and the Court suggests that affirmative

action at public universities can advance a societal goal of encouraging minority

participation in civic life. This proposition lacks foundation.

13

If a significant portion of a minority community sees our nation’s leaders

as illegitimate or lacks confidence in the integrity of our educational institutions,

as Grutter posits in the block quote above, see id., 539 U.S. at 332, I doubt that

suspending the prevalent constitutional rules to allow preferred treatment for

as few as 15-40 students, see infra Section II, is likely to foster renewed civic

participation from among that community as a whole.

14

Grutter replaced Bakke’s emphasis on diversity in educational inputs with

a new emphasis on diversity in educational outputs. By expanding Justice

See Lani Guinier, The Supreme Court, 2002 Term—Comment: Admissions Rituals 13

as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113,

174–76 (2003).

This is not to criticize universities, like the University of Texas, for implementing 14

policies that seek to increase minority representation, not merely for its educational benefits

on campus, but also for the secondary benefits that such increases in minority enrollment can

have in the workplace and in society generally. A university degree confers professional and

leadership opportunities unavailable otherwise, and ensuring that all segments of society have

meaningful access to public institutions of higher education “represents a paramount

government objective.” Grutter, 539 U.S. at 331–32 (citing Brief of United States as Amicus

Curiae 13). I do not question this goal, but rather the constitutionality of using race to attain

it.

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Powell’s original viewpoint diversity rationale to include diversity’s putative

benefits in the workforce and beyond (i.e., inspiring a sense of civic belonging in

discouraged minority communities), the Court has endorsed a compelling

interest without bounds. Post-Grutter, it matters little whether racial

preferences in university admissions are justified by reference to their potential

for improved discussion in individual classrooms, or even at the university

generally. Now such preferences can be justified based on their global impact.

By removing the focus of attention from diversity’s educational value at the

campus level, the Court has ensured that the “educational benefits of diversity”

will accommodate all university affirmative action plans as compelling.

E

Finally, by using metaphors, like “critical mass,” and indefinite terms that

lack conceptual or analytical precision, but rather sound in abject subjectivity,

to dress up constitutional standards, Grutter fails to provide any predictive value

to courts and university administrators tasked with applying these standards

consistently. And notwithstanding the Court’s nod to federalism, Grutter’s

ambiguity discourages States from experimenting or departing from the one

accepted norm. See id. at 342 (citing United States v. Lopez, 514 U.S. 549, 581

(1995) (Kennedy, J., concurring) (“[T]he States may perform their role as

laboratories for experimentation to devise various solutions where the best

solution is far from clear.”)). In the absence of clear guidance, public universities

nationwide will simply model their programs after the one approved in Grutter

rather than struggle with the risks and uncertain benefits of experimentation.

That is exactly what has occurred here. With one exception—the Top Ten

Percent law—the race-conscious admissions policy that we review today is

identical to the program used at the Law School.

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II

As mentioned at the outset, I concur in the opinion because I believe

today’s decision is a faithful application of Grutter’s teachings, however flawed

I may find those teachings to be. I am compelled to follow the Court’s unusual

deference towards public university administrators in their assessment that

racial diversity is a compelling interest, as well as the Court’s refashioned

narrow-tailoring inquiry. See 28 U.S.C. § 453. My difficulty is not necessarily

with today’s decision, but with the one that drives it. Nonetheless, there is one

aspect of Judge Higginbotham’s thoughtful opinion that gives me pause about

whether Grutter compels the result we reach today. Ultimately, and regrettably,

I recognize that the deference called for by Grutter may make this concern

superfluous.

As today’s opinion notes, the University of Texas’s race-conscious

admissions policy is nearly indistinguishable from the program approved by the

Supreme Court in Grutter. Ante at 2, 4, 25. As such, the majority opinion

15

summarily finds that, like the Law School in Grutter, the University of Texas

has a compelling interest in obtaining the educational benefits of diversity in its

undergraduate program. Id. at 26. After affording all deference due, today’s

decision focuses on the efficacy of the University’s race-conscious admissions

policy. Id. at 29 (“[W]hile we focus on the University’s decision to adopt a

Grutter-like plan, admissions outcomes remain relevant evidence of the plan’s

necessity—a reality check.”). In my view, the efficacy of the University’s racebased admissions policy is more than merely relevant, it is dispositive.

The plaintiffs here argue that the University of Texas’s interest in

obtaining a racially diverse student body is not compelling because the

University has already achieved critical mass by way of Texas’s Top Ten Percent

As a result, UT’s policy suffers from all the same defects as the Law School policy 15

evaluated in Grutter and discussed previously in this opinion. See supra Section I. 

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law. See TEX. EDUC. CODE § 51.803 (1997). The University disagrees. This

claim is difficult to evaluate. The University refuses to assign a weight to race

or to maintain conclusive data on the degree to which race factors into

admissions decisions and enrollment yields. See Fisher, 645 F. Supp. 2d at

608–09 (“At no point in the process is race considered individually or given a

numerical value; instead, the file is evaluated in its entirety in order to provide

a better understanding of the student as a person and place her achievements

in context.”). Whether the University of Texas’s use of race is narrowly tailored

turns on whether its chosen means—using race as a plus factor in the

University’s holistic scoring system—are effective, not just in theory, but also in

practice.

If, apart from the Top Ten Percent law, the University of Texas’s raceconscious admissions program added just three-to-five African-American

students, or five-to-ten Hispanic students, to an entering freshman class of

6,700, that policy would completely fail to achieve its aims and would not be

narrowly tailored. See Ayres & Foster, 85 TEX. L. REV. at 523 n.27 (“At least as

a theoretical matter, narrow tailoring requires not only that the preferences not

be too large, but also that they not be too small so as to fail to achieve the goals

of the relevant compelling government interest.”). The marginal benefit of

adding just five or ten minority students to a class of this size would be

negligible and have no perceptible impact on the “educational benefits that

diversity is designed to produce.” Grutter, 539 U.S. at 330 (“[C]ritical mass is

defined by reference to the educational benefits that diversity is designed to

produce.”). This is especially so, if, as the district court suggests, “the large16

See Bakke, 438 U.S. at 316 (opinion of Powell, J.) (noting the “necessity of including 16

more than a token number of black students”). See also Patricia Gurin et al., Diversity and

Higher Education: Theory and Impact on Educational Outcomes, 72 HARV. EDUC. REV. 330,

360–61 (2002) (enrolling “significant numbers of students of various groups” is necessary to

enable students to “perceive differences both within groups and between groups”); Kathryn

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scale absence of African-American and Hispanic students from thousands of

classes indicates UT has not reached sufficient critical mass for its students to

benefit from diversity and illustrates UT’s need to consider race as a factor in

admissions in order to achieve those benefits.” Fisher, 645 F. Supp. 2d at 607

(citing statistics showing that in 2002, the University offered over 5,631 classes,

79% of which (4,448) had just one or zero African-American students; 30% of

classes (1,689) had zero or one Hispanic students). So, the controlling question

17

is, “Is the University of Texas’s race-conscious policy effective?” And by effective,

I do not mean that every statistically insignificant gain (i.e., adding one, three,

or five students at the margin) qualifies. The constitutional inquiry for me

concerns whether the University’s program meaningfully furthers its intended

goal of increasing racial diversity on the road to critical mass. I find it does not.

In the 2008 admissions cycle, 29,501 students applied to the University of

Texas. See Fisher, 645 F. Supp. 2d at 590. Less than half, 12,843, were

admitted and 6,715 ultimately enrolled. Id. Of these enrolled students, 6,322

18

came from Texas high schools. See Implementation and Results of the Texas

19

R.L. Rand & Steven Andrew Light, Teaching Race Without a Critical Mass: Reflections on

Affirmative Action and the Diversity Rationale, 54 J. LEGAL. EDUC. 316, 332–34 (2004) (noting

that under a cost-benefit analysis it may be more difficult to justify an affirmative action

program when a university is unable to enroll a critical mass of minority applicants).

These statistics represent all classes at UT with five or more students, including 17

large lecture courses. For classes with five to 24 students—the most likely to foster the

vibrant discussion described in Grutter and Bakke—the figures are more revealing. In 2002,

UT offered 3,616 classes with five to 24 students. Of these, 90% had one or zero AfricanAmerican students and 43% had one or zero Hispanic students. See Proposal to Consider Race

and Ethnicity in Admissions, June 25, 2004 at 26, Table 8. 

18 Today’s decision, like the district court’s, alternates between using statistics from

admitted and enrolled students. If realizing the educational benefits of diversity is the

University’s asserted interest, only the data for enrolled students is relevant to our review.

 In the discussion that follows, I use the number of enrolled Texas residents (6,322)

19

as a baseline rather than the aggregate enrollment for first-time freshman (6,715). There are

two reasons for this. First, this case asks us to decide the necessity of UT’s race-conscious

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Automatic Admissions Law (HB 588) at the University of Texas at Austin,

October 28, 2008 at 7 (“2008 Top Ten Percent Report”). 5,114 (80.9% of enrolled

Texas residents) of these students were a product of Top Ten Percent, meaning

that, at most, 1,208 (19.1%) enrolled non-Top Ten Percent Texas residents had

been evaluated on the basis of their AI/PAI scores. Id.

Of the 363 African-American freshmen from Texas high schools that were

admitted and enrolled (6% of the 6,322-member enrolling class from Texas high

schools), 305 (4.8%) were a product of Top Ten Percent, while 58 (0.92%) AfricanAmerican enrollees had been evaluated on the basis of their AI/PAI scores. See

20

2008 Top Ten Percent Report at 7. For the 1,322 (21%) total enrolled in-state

Hispanic students, 1,164 (18.4% of enrolled in-state students) were a product

of Top Ten Percent, while 158 (2.5%) had been evaluated on the basis of their

AI/PAI scores. Id. We know that in some cases an applicants’ AI score is high

enough that the applicant is granted admission based on that score alone. But

we do not have data to show how many of these 58 African-American and 158

Hispanic students were admitted automatically based on their AI scores, which

are race-neutral, and how many were admitted after factoring in the students’

admissions policy in light of Texas’s Top Ten Percent law. I find this question is evaluated

most effectively by comparing enrollment data for Texas residents, which include precise

figures for Top 10% and Non-Top 10% enrollees. Second, as the majority opinion recognizes,

ante at 44 n.155, the record does not include data showing what portion of the total applicant

pool were Texas residents and what portion came from out-of-state. This is problematic. We

know, for example, that the 2008 entering freshman class included 375 African-American and

1,338 Hispanic students, and that 363 and 1,322 of these students, respectively, were Texas

residents. See 2008 Top Ten Percent Report at 6–7. So, although we know that the 2008

enrolling freshman class included 12 African-American and 16 Hispanic students from out-ofstate, we cannot intelligently discuss the potential impact of UT’s race-conscious policy on this

data set without also having total application and admissions information available for nonTexas residents. This does not affect my conclusions—the number of non-Texas AfricanAmerican and Hispanic students enrolled in the freshman class is statistically insignificant. 

In this section, I often refer to a raw number followed by a percentage listed in 20

parentheses. E.g., “305 (4.8%).” This percentage figure (__%) is calculated by dividing number

of students cited by 6,322, the number of enrolled Texas residents in the 2008 freshman class.

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PAI scores, which use the University’s Grutter-like holistic evaluation plan and

include consideration of an applicant’s race as one of seven “special

circumstances.” Nonetheless, assuming that all 58 and 158 African-American

and Hispanic students, respectively, were admitted on the basis of their

combined AI and PAI scores (i.e., that none of these minority students gained

admission on the basis of their race-neutral Academic Index score alone), the

question is whether the University’s use of race, which is a “highly suspect tool,”

Croson, 488 U.S. at 493, as part of the PAI score contributes a statistically

significant enough number of minority students to affect critical mass at the

University of Texas.

We do not know, because the University does not maintain data, the

degree to which race influenced the University’s admissions decisions for any of

these enrolled students or how many of these students would not have been

admitted but-for the use of race as a plus factor. But assuming the University

gave race decisive weight in each of these 58 African-American and 158 Hispanic

students’ admissions decisions, those students would still only constitute 0.92%

and 2.5%, respectively, of the entire 6,322-person enrolling in-state freshman

class. And this is assuming a 100%, unconstitutional use of race, not as a plus

factor, but as a categorical condition for guaranteed admission. See Grutter, 539

U.S. at 329–30 (making race an automatic factor in admissions would “amount

to outright racial balancing, which is patently unconstitutional.”).

Assume further, that such a prohibited use of race was employed in only

half of the University’s admissions decisions. This would still only yield 29

(0.46%) African-American and 79 (1.25%) Hispanic students.

Now assume that the University’s use of race is truly holistic; that given

the multitude of other race-neutral variables the University considers and

values sincerely, race’s significance is limited in any individual application

packet. See Fisher, 645 F. Supp. 2d at 608 (“UT considers race in its admissions

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process as a factor of a factor of a factor of a factor. As described in exhaustive

detail above, race is one of seven “special circumstances,” which is in turn one

of six factors that make up an applicants personal achievement score.”). Lastly,

assume that in this system, the University’s use of race results in a but-for offer

of admission in one-quarter of the decisions. A twenty-five percent but-for

admissions rate seems highly improbable if race is truly limited in its holistic

weighting, but the unlikelihood of the assumption proves my point. Even under

such a system, the University’s proper use of race holistically would only yield

15 (0.24%) African-American and 40 (0.62%) Hispanic students. AfricanAmerican students, for example, admitted and enrolled by way of this holistic

system would still only constitute two-tenths of one percent of the University of

Texas’s 2008 entering freshman class. Such a use of race could have no

discernable impact on the classroom-level “educational benefits diversity is

designed to produce” or otherwise influence “critical mass” at the University of

Texas generally. Such a plan exacts a cost disproportionate to its benefit and is

not narrowly tailored. This is especially so on a university campus with, for

example, 4,448 classes (out of 5,631) with zero or one African-American students,

and 1,689 classes with zero or one Hispanic students. Fisher, 645 F. Supp. 2d

at 607.

More importantly, if the figures above are reasonably accurate, the

University’s use of race also fails Grutter’s compelling interest test as a factual

matter. See 539 U.S. at 333 (“[D]iminishing the force of [racial] stereotypes is

both a crucial part of the Law School’s mission, and one that it cannot

accomplish with only token numbers of minority students.”). From its inception

immediately following Grutter, the University’s race-conscious admissions policy

was described as essential to the University of Texas’s educational mission:

[T]o accomplish [UT’s] mission and fulfill its flagship role . . . the

undergraduate experience for each student must include classroom

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contact with peers of differing racial, ethnic, and cultural

backgrounds. The proposal to consider race in the admissions

process is not an exercise in racial balancing but an

acknowledgment that significant differences between the racial and

ethnic makeup of the University’s undergraduate population and

the state’s population prevent the University from fully achieving

its mission.

Fisher, 645 F. Supp. 2d at 602 (citing Proposal to Consider Race and Ethnicity

in Admissions, June 25, 2004 at 24). If the University’s use of race is truly

necessary to accomplish its educational function, then as a factual matter, the

University of Texas’s race-conscious measures have been completely ineffectual

in accomplishing its claimed compelling interest.

In contrast, Top Ten Percent was responsible for contributing 305 and

1,164 African-American and Hispanic students, respectively, to the entering

2008 freshman class using entirely race-neutral means. These students

represent 4.8% and 18.4% of the entering in-state freshman class. In addition,

of the 58 African-American and 158 Hispanic enrolled students evaluated on the

basis of their AI and PAI scores, if the University’s use of race was truly holistic,

the percentage of these students for whom race was a decisive factor (i.e., but-for

admits) should be minimal. In other words, the vast majority of these 58 and

158 students were admitted based on objective factors other than race. That is,

the University was able to obtain approximately 96% of the African-American

and Hispanic students enrolled in the 2008 entering in-state freshman class

using race-neutral means. And although the University argues that this number

still does not qualify as critical mass, one thing is certain: the University of

Texas’s use of race has had an infinitesimal impact on critical mass in the

student body as a whole. As such, the University’s use of race can be neither

compelling nor narrowly tailored.

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I do not envy the admissions officials at the University of Texas. In 1997,

in response to our decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), the

people of the State of Texas determined, through their elected representatives,

that something needed to be done to improve minority enrollment at Texas’s

public institutions of higher education. Texas’s Top Ten Percent law was

intended to effectuate that desire. We take no position today on the

constitutionality of that law. Instead, we are asked to scrutinize the legality of

21

the University’s race-conscious policy designed to complement Top Ten Percent.

Even with the limited data available, I cannot find that the University of Texas’s

use of race is narrowly tailored where the University’s highly suspect use of race

provides no discernable educational impact. In my view, the University’s

program fails strict scrutiny before or after Grutter. See, e.g., Parents Involved

in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 790 (2007) (Kennedy, J.,

concurring) (“[I]ndividual racial classifications employed in this manner may be

considered legitimate only if they are a last resort to achieve a compelling

interest.”) (citation omitted) (emphasis added). Before Grutter, it is unlikely that

the Supreme Court would have found that the University of Texas’s means were

narrowly tailored to the interest it asserts. Nonetheless, narrow tailoring in the

university admissions context is not about balancing constitutional costs and

benefits any longer. Post-Grutter, universities need not inflict the least harm

possible so long as they operate in good faith. And in assessing good faith,

institutions like the University of Texas need not even provide the type of

In assessing whether the University’s use of race is narrowly tailored, today’s 21

majority opinion finds that Top Ten Percent is not a race-neutral alternative that serves the

University’s asserted interest “about as well” as its Grutter-like plan. See ante at 39–46. My

concurrence should not be read to approve or reject the constitutionality of percentage plans

like Top Ten Percent. That issue remains open. I write separately to underscore the minimal

effect that the University’s use of race has had on critical mass in light of Top Ten Percent, and

why the University’s use of race would not,therefore, be narrowly tailored applying traditional

strict scrutiny principles before Grutter. I recognize that Grutter appears to swallow this

concern.

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metrics that allow courts to review their affirmative action programs. As long

as these public institutions remain sufficiently opaque in their use of race,

reviewing courts like ours will be hard pressed to find anything short of good

faith and narrow tailoring. In the world post-Grutter, courts are enjoined to take

universities at their word.

III

The Supreme Court’s narrow tailoring jurisprudence has been reliably

tethered, at least before 2003, to the principle that whenever the government

divides citizens by race, which is itself an evil that can only be justified in the

most compelling circumstances,that the means chosen will inflict the least harm

possible, see Bakke, 438 U.S. at 308 (opinion of Powell, J.), and fit the compelling

goal “so closely that there is little or no possibility that the motive for the

classification was illegitimate racial prejudice or stereotype.” Croson, 488 U.S.

at 493; see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 84 (2000) (“[W]hen a

State discriminates on the basis of race . . . , we require a tighter fit between the

discriminatory means and the legitimate ends they serve.”). Grutter abandoned

this principle and substituted in its place an amorphous, untestable, and above

all, hopelessly deferential standard that ensures that race-based preferences in

university admissions will avoid meaningful judicial review for the next several

decades.

My disagreement with Grutter is more fundamental, however. Grutter’s

failing, in my view, is not only that it approved an affirmative action plan

incapable of strict scrutiny, but more importantly, that it approved the use of

race in university admissions as a compelling state interest at all.

The idea of dividing people along racial lines is artificial and antiquated.

Human beings are not divisible biologically into any set number of races. A

22

See Alexander & Schwarzschild, 21 CONST. COMMENT. at 6 & n.10 (“There is broad 22

scholarly support for this proposition. See, e.g., NAOMI ZACK, PHILOSOPHY OF SCIENCE AND

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world war was fought over such principles. Each individual is unique. And yet,

in 2010, governmental decisionmakers are still fixated on dividing people into

white, black, Hispanic, and other arbitrary subdivisions. The University of

Texas, for instance, segregates student admissions data along five racial classes.

See, e.g., 2008 Top Ten Percent Report at 6 (reporting admissions data for White,

Native-American, African-American, Asian-American, and Hispanic students).

That is not how society looks any more, if it ever did.

When government divides citizens by race, matters are different.

23

Government-sponsored discrimination is repugnant to the notion of human

equality and is more than the Constitution can bear. See Grutter, 539 U.S. at

388 (Kennedy, J., dissenting) (“Preferment by race, when resorted to by the

State, can be the most divisive of all policies, containing within it the potential

to destroy confidence in the Constitution and the idea of equality.”). There are

no de minimis violations of the Equal Protection Clause, and when government

undertakes any level of race-based social engineering, the costs are enormous.

Not only are race-based policies inherently divisive, they reinforce stereotypes

that groups of people, because of their race, gender, or ethnicity, think alike or

have common life experiences. The Court has condemned such class-based

presumptions repeatedly. See, e.g., United States v. Virginia, 518 U.S. 515, 533

(1996) (“Supposed ‘inherent differences’ are no longer accepted as a ground for

race or national origin classifications.”); Shaw, 509 U.S. at 647 (rejecting the

RACE 58–62 (2002); JOSEPH L. GRAVES, JR., THE EMPEROR’S NEW CLOTHES: BIOLOGICAL

THEORIES OF RACE AT THE MILLENNIUM (2001); Joshua M. Glasgow, On the New Biology of

Race, 100 J. PHIL. 456 (2003).”).

See Alexander & Schwarzschild, 21 CONST. COMMENT. at 6–7 (“[W]hen the 23

government classifies people racially and ethnically, and then makes valuable entitlements

such as admission to a university turn on those classifications, . . . that very fact encourages

people to think that ‘races’ are real categories, not bogus ones, and that one’s race is an

exceedingly important rather than a superficial fact about oneself and others. In other words,

it encourages people to pay close attention to race and to think in racial terms.”). 

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notion “that members of the same racial group—regardless of their age,

education, economic status, or the community in which they live—think alike,

share the same . . . interests,” or have a common viewpoint about significant

issues); Wygant, 476 U.S. at 316 (Stevens, J., dissenting) (the “premise that

differences in race, or the color of a person’s skin, reflect real differences . . . is

utterly irrational and repugnant to the principles of a free and democratic

society”). I do not see how racial discrimination in university admissions is any

less repugnant to the Constitution. If anything, government-sponsored

discrimination in this context presents an even greater threat of long-term

harm.

24

For the most part, college admissions is a zero-sum game. Whenever one

student wins, another loses. The entire competition, encouraged from age five

on, is premised on individual achievement and promise. It is no exaggeration

25

Professor Cohen succinctly describes some of the effects of racial and ethnic 24

preferences in higher education:

1. preference divides the society in which it is awarded;

2. it establishes a precedent in excusing admitted racial discrimination to achieve

political objectives;

3. it corrupts the universities in which it is practiced, sacrificing intellectual values

and creating pressures to discriminate by race in grading and graduation;

4. . . .

5. it obscures the real social problem of why so many minority students are not

competitive academically;

6. it obliges a choice of some few ethnic groups, which are to be favored above all

others;

7. . . .

8. it removes incentives for academic excellence and encourages separatism among

racial and ethnic minorities;

9. it mismatches students and institutions, increasing the likelihood of failure for

many minority students; and

10. it injures race relations over the long haul.

CARL COHEN & JAMES P. STERBA, AFFIRMATIVE ACTION & RACIAL PREFERENCE 109 (2003). 

For example, in the School of Architecture, the School of Fine Arts, and certain 25

honors programs, where aptitude is essential, the University requires special portfolio,

audition, and other requirements. See ante at 23 n.87. In these and other impacted programs

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to say that the college application is 18 years in the making and is an unusually

personal experience: the application presents a student’s best self in the hopes

that her sustained hard work and experience to date will be rewarded with

admission. Race-based preferences break faith with this expectation by favoring

a handful of students based on a trait beyond the control of all. See Bakke, 438

U.S. at 361 (opinion of Brennan, White, Marshall & Blackmun, JJ.)

(“[A]dvancement sanctioned, sponsored, or approved by the State should ideally

be based on individual merit or achievement, or at least on factors within the

control of the individual . . . .”). Given the highly personal nature of the college

admissions process, this kind of class-based discrimination poses an especially

acute threat of resentment and its corollary—entitlement. More fundamentally,

it “assures that race will always be relevant in American life, and that the

ultimate goal of eliminating entirely from governmental decisionmaking such

irrelevant factors as a human being’s race will never be achieved.” Croson, 488

U.S. at 495 (citation and internal quotation marks omitted).

Yesterday’s racial discrimination was based on racial preference; today’s

racial preference results in racial discrimination. Changing the color of the

group discriminated against simply inverts, but does address, the fundamental

problem: the Constitution prohibits all forms of government-sponsored racial

discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous

behavior and ensures that race will continue to be a divisive facet of American

life for at least the next two generations. Like the plaintiffs and countless other

college applicants denied admission based, in part, on government-sponsored

racial discrimination, I await the Court’s return to constitutional first principles.

where student demand outstrips available space, the University recognizes and uses merit as

the decisive consideration in admission. I do not see why excellence and merit warrant less

consideration in the University’s other disciplines. 

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