Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al
Filing
59
MEMORANDUM in Support re 58 MOTION to Stay filed by President and Fellows of Harvard College. (Attachments: # 1 Exhibit A)(Waxman, Seth)
EXHIBIT A
No. 14IN THE
Supreme Court of the United States
ABIGAIL NOEL FISHER,
Petitioner,
v.
UNIVERSITY OF TEXAS AT AUSTIN, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF A PPEALS FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
WILLIAM S. CONSOVOY
THOMAS R. MCCARTHY
J. MICHAEL CONNOLLY
CONSOVOY MCCARTHY PLLC
3033 Wilson Boulevard
Suite 700
Arlington, VA 22201
PAUL M. TERRILL
THE TERRILL FIRM, P.C.
810 W. 10th Street
Austin, TX 78701
BERT W. REIN
Counsel of Record
CLAIRE J. EVANS
BRENDAN J. MORRISSEY
WILEY REIN LLP
1776 K STREET NW
WASHINGTON, DC 20006
(202) 719-7000
brein@wileyrein.com
Attorneys for Petitioner
Date: February 10, 2015
257806
A
(800) 274-3321 • (800) 359-6859
i
QUESTION PRESENTED
Whether the Fifth Circuit’s re-endorsement of the
University of Texas at Austin’s use of racial preferences
in undergraduate admissions decisions can be sustained
under this Court’s decisions interpreting the Equal
Protection Clause of the Fourteenth Amendment,
including Fisher v. University of Texas at Austin, 133
S. Ct. 2411 (2013).
ii
PARTIES TO THE PROCEEDING
AND RULE 29.6 STATEMENT
Petitioner in this case is Abigail Noel Fisher.
Respondents are the University of Texas at Austin;
Pedro Reyes, Executive Vice Chancellor for Academic
Affairs in His OfÞcial Capacity; Daniel H. Sharphorn, Vice
Chancellor and General Counsel in His OfÞcial Capacity;
William Powers, Jr., President of the University of Texas
at Austin in His OfÞcial Capacity; Board of Regents of the
University of Texas System; R. Steven Hicks, as Member
of the Board of Regents in His OfÞcial Capacity; William
Eugene Powell, as Member of the Board of Regents in His
OfÞcial Capacity; Ernest Aliseda, as Member of the Board
of Regents in His OfÞcial Capacity; Alex M. Cranberg, as
Member of the Board of Regents in His OfÞcial Capacity;
Brenda Pejovich, as Member of the Board of Regents in
Her OfÞcial Capacity; Robert L. Stillwell, as Member of
the Board of Regents in His OfÞcial Capacity; Wallace
L. Hall, Jr., as Member of the Board of Regents in His
OfÞcial Capacity; Paul L. Foster, as Chair of the Board of
Regents in His OfÞcial Capacity; Jeffery D. Hildebrand, as
Member of the Board of Regents in His OfÞcial Capacity;
Susan Kearns, Interim Director of Admissions in Her
OfÞcial Capacity; William H. McRaven, Chancellor of
the University of Texas System in His OfÞcial Capacity.
Plaintiff-Appellant below Rachel Multer Michalewicz
is being served as a respondent herein.
iii
TABLE OF CONTENTS
Page
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i
PARTIES TO THE PROCEEDING
AND RULE 29.6 STATEMENT . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . iii
TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . .v
TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . vii
PETITION FOR A WRIT OF CERTIORARI. . . . . . . .1
OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
CONSTITUTIONAL PROVISION INVOLVED. . . . . .3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . .3
A. UT’s Use Of Race In Admissions Decisions . . . .3
B. Procedural History And This Court’s Ruling . . .8
C. Proceedings On Remand . . . . . . . . . . . . . . . . . . .11
iv
Table of Contents
Page
REASONS FOR GRANTING THE PETITION. . . . .13
I.
The Court Should Grant Certiorari Because
The Fifth Circuit Did Not Follow Its
Instruction To Apply Strict Scrutiny
On Remand. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
II. The Cour t Should Grant Cer tiora r i
Because UT’s Newly Minted “Qualitative”
Diversity Rationale Cannot Sur v ive
Strict Scrutiny . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
A. UT’s “Qualitative” Interest Is Not Clear,
Legitimate, Or Narrowly Tailored. . . . . . .19
B. U T ’s “ Q u a l it at i ve” I nt e r e st Is
Not A Last Resort Necessary To
Achieve An Educational Goal That
This Court Has Found Compelling. . . . . . .25
III. Review Is Essential To Permit Strict
Scrutiny To Play Its Intended Role In
Ensuring That Racial Preferences Do Not
Trample The Right To Equal Protection . . . . . .29
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .33
v
TABLE OF APPENDICES
Page
APPENDIX A — OPINION OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT, DATED JULY 15, 2014 . . . . . .1a
A PPEN DI X B — OR DER OF T H E
UNITED STATES COURT OF
A PPEALS FOR THE FIFTH
CIRCUIT, DATED JULY 15, 2014 . . . . . . . . . . . . .91a
A P P E N DI X C — O R D E R D E N Y I N G
PETITION FOR REHEARING EN BANC
OF THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT,
DATED NOVEMBER 12, 2014 . . . . . . . . . . . . . . . .94a
APPENDIX D— OPINION OF THE SUPREME
COURT OF THE UNITED STATES, DATED
JUNE 24, 2013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .99a
A P P E N DI X E — O P I N IO N O F T H E
UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT,
DATED JANUARY 18, 2011 . . . . . . . . . . . . . . . . . 147a
A PPENDIX F — OPINION AND ORDER
OF THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT
OF T E X A S , AUS T I N DI V I SION,
DATED AUGUST 17, 2009 . . . . . . . . . . . . . . . . . . .261a
vi
Table of Appendices
Page
APPENDIX G — ORDER DENYING PETITION
FOR REHEARING EN BANC OF THE
UNITED STATES COURT OF APPEALS FOR
T H E F I F T H C I R C U I T, DAT ED
JUNE 17, 2011. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .318a
vii
TABLE OF CITED AUTHORITIES
Page
Cases
Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995) . . . . . . . . . . . . . . . . . . . . . . . . .15, 21
Calhoun v. United States,
133 S. Ct. 1136 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . .22
City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989). . . . . . . . . . . . . . . . . . . . . . . passim
CLS v. Martinez,
561 U.S. 661 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Fisher v. University of Texas at Austin,
133 S. Ct. 2411 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . .2
Grutter v. Bollinger,
539 U.S. 306 (2003). . . . . . . . . . . . . . . . . . . . . . . passim
Heller v. Doe,
509 U.S. 312 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Icicle Seafoods, Inc. v. Worthington,
475 U.S. 709 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
In re Sanford Fork & Tool Co.,
160 U.S. 247 (1895) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Maine v. Taylor,
477 U.S. 131 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
viii
Cited Authorities
Page
Parents Involved in Community Schools v.
Seattle School District No. 1,
551 U.S. 701 (2007). . . . . . . . . . . . . . . . . . . . . .27, 28, 30
Planned Parenthood of Southeastern Pennsylvania v.
Casey,
510 U.S. 1309 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Plessy v. Ferguson,
163 U.S. 537 (1896) . . . . . . . . . . . . . . . . . . . . . . . . . 29-30
Regents of University of California v. Bakke,
438 U.S. 265 (1978). . . . . . . . . . . . . . . . . . . . . . . . .10, 27
Schuette v. BAMN,
134 S. Ct. 1623 (2014) . . . . . . . . . . . . . . . . . . . .21, 29, 32
Shaw v. Hunt,
517 U.S. 899 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
United States Railroad Retirement Board v. Fritz,
449 U.S. 166 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
United States v. Virginia,
518 U.S. 515 (1996) . . . . . . . . . . . . . . . . . . . . . . . . .16, 24
Wygant v. Jackson Board of Education,
476 U.S. 267 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
ix
Cited Authorities
Page
Statutes and Other Authorities
10A CHARLES A LAN WRIGHT & A RTHUR R. MILLER,
F EDER A L P R ACTICE & P ROCEDURE , § 2716
(3d ed. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
28 U.S.C. § 1254. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
Brief of Respondents, Fisher v.
University of Texas at Austin,
No. 11-345 (Aug. 6, 2012) . . . . . . . . . . . . . . . . . . . . . . . .9
Dr. Larry Faulkner, The “Top 10 Percent Law” is
Working for Texas (Oct. 19, 2000) . . . . . . . . . . . . . . . .5
Supplemental Brief for Appellees, Fisher v.
University of Texas at Austin,
No. 09-50822 (5th Cir. Oct. 25, 2013) . . . . . . . . . . . . .11
SUPREME COURT RULE 10(c). . . . . . . . . . . . . . . . . . . . . . . .13
Tex. Educ. Code § 51.803 . . . . . . . . . . . . . . . . . . . . . . . .4, 7
The University of Texas at Austin reacts to
the Supreme Cour t’s affirmative action
decisions (June 23, 2003) . . . . . . . . . . . . . . . . . . . . . . .5
U.S. Const. amend. XIV, § 1. . . . . . . . . . . . . . . . . . . . . . . .3
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Abigail Noel Fisher respectfully submits
this petition for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Fifth
Circuit. The Court’s prior decision in this case (“Fisher
I”) reafÞrmed that traditional strict scrutiny applies when
a university’s use of racial preferences in its admissions
process is challenged. The Fifth Circuit’s initial ruling
instead deferred to the University of Texas at Austin
(“UT”). The Court vacated that ruling and remanded the
case to the Fifth Circuit to determine whether UT had
offered sufÞcient record evidence to satisfy that exacting
standard.
A panel of the Fifth Circuit, this time over the
vigorous dissent of Judge Garza, again failed to apply
traditional strict scrutiny. Essentially ignoring the
Court’s admonition to hold UT to the demanding burden
articulated in its Equal Protection Clause precedent,
the Fifth Circuit approved UT’s program under what
amounts to a rational-basis analysis. The panel deferred
to UT’s post hoc speculation that racial preferences
served a “qualitative” diversity interest that was never
studied, evaluated, or articulated when UT added
racial preferences to its admissions program. Worse
still, the interest is based on demeaning and unfounded
stereotypes about less-privileged applicants from minority
communities. Without any evidence that such an interest
is educationally compelling, that consideration of race is
necessary to advance it, that UT’s use of race is narrowly
tailored to achieve it, or that the end point of such an
amorphous and unbounded pursuit could ever be subject
to judicial review, the Fifth Circuit held that UT’s use
2
of racial preferences somehow survived the demanding
scrutiny that Fisher I mandates.
If not reviewed, the Fifth Circuit’s decision will signal
to universities and courts throughout the nation that strict
scrutiny is a pro forma exercise and that Fisher I is a
green light for racial preferences in admissions decisions.
The Court should grant the petition, strike down UT’s
unjustiÞed use of race, and once again make clear that
the Equal Protection Clause does not permit the use of
racial preferences in admissions decisions where, as here,
they are neither narrowly tailored nor necessary to meet
a compelling, otherwise unsatisÞed, educational interest.
OPINIONS BELOW
The opinion of the United States Court of Appeals
for the Fifth Circuit is reported at 758 F.3d 633 and is
reproduced in the Appendix (“App.”) at 1a-90a. The Fifth
Circuit’s order denying rehearing en banc is reported
at 771 F.3d 274 and is reproduced at App. 94a-98a. The
Fifth Circuit’s earlier opinion is reported at 631 F.3d
213 and is reproduced at App. 147a-260a. The Fifth
Circuit’s earlier order denying rehearing en banc and
the opinion dissenting from the denial of rehearing en
banc are reported at 644 F.3d 301 and are reproduced at
App. 318a-330a. This Court’s opinion vacating the Fifth
Circuit’s earlier opinion is reported at 133 S. Ct. 2411 and
is reproduced at App. 99a-146a. The opinion of the United
States District Court for the Western District of Texas
is reported at 645 F. Supp. 2d 587 and is reproduced at
App. 261a-317a.
3
JURISDICTION
The United States Court of Appeals for the Fifth
Circuit rendered its decision on July 15, 2014. App. 91a.
A timely petition for rehearing en banc was denied on
November 12, 2014. App. 94a. This Court has jurisdiction
under 28 U.S.C. § 1254(a).
CONSTITUTIONAL PROVISION INVOLVED
The Fourteenth Amendment to the United States
Constitution provides in relevant part:
No State shall … deny to any person within its
jurisdiction the equal protection of the laws.
U.S. Const. amend. XIV, § 1.
STATEMENT OF THE CASE
A. UT’s Use Of Race In Admissions Decisions
The Court previously described the evolution of UT’s
admissions program from one that considered race as
an independent factor to one that generated substantial
minority admissions through race-neutral measures to
the system challenged in this case where race is again
explicitly and pervasively considered in admissions and
placement decisions. App. 100a-104a.
Under the Þ rst system, which operated prior to 1997,
admission to UT turned on “two factors: a numerical
score reßecting an applicant’s test scores and academic
performance in high school (Academic Index or AI), and
4
the applicant’s race.” App. 100-101a. In 1997, UT adopted
the second system in response to a Fifth Circuit decision
invalidating UT’s use of racial preferences under the Equal
Protection Clause. App. 101a. Admission to UT under the
new race-neutral system still turned on two factors, but
a Personal Achievement Index (or “PAI”) replaced racial
preferences. Id. The PAI measured a “student’s leadership
and work experience, awards, extracurricular activities,
community service, and other special circumstances,” id.,
including some that “disproportionately affect minority
candidates, [such as] the socio-economic status of the
student’s family, language other than English spoken at
home, and whether the student lives in a single-parent
household,” App. 267a. UT coupled its AI/PAI system
with expanded minority outreach programs. App. 101a.
These race-neutral efforts resulted in a 1997 entering
class that was 15.3% African-American and Hispanic.
App. 267a-268a.
A year later, the Texas Legislature supplemented
the AI/PAI system with the Top 10% Law, which grants
automatic admission to in-state students in the top ten
percent of their high school class. App. 101a-102a; see also
H.B. 588, Tex. Educ. Code § 51.803 (1997). The AI/PAI
calculations retained a vital role in UT’s process, however,
because they determined admission for students that
were not automatically admitted under the Top 10% Law
and determined placement in schools and majors for all
applicants, including those admitted pursuant to the Top
10% Law. App. 102a.
As this Court noted, UT’s “revised admissions
process, coupled with the operation of the Top Ten Percent
Law, resulted in a more racially diverse environment
5
at the University.” App. 102a. In 2004, without racial
preferences, UT enrolled a freshman class that was
21.4% African-American and Hispanic; in 1996, with
racial preferences, UT had enrolled a freshman class
that was 18.6% African-American and Hispanic. Id. And
importantly, the race-neutral system produced students
that succeeded academically. According to UT, minorities
“earned higher grade point averages … than in 1996 and
[had] higher retention rates.”1
In spite of the success of its race-neutral program,
UT announced on the day that this Court decided Grutter
v. Bollinger, 539 U.S. 306 (2003), that it would “modify
its admissions procedures” to incorporate “afÞ rmative
action.”2 Shortly thereafter, UT created a “Proposal To
Consider Race and Ethnicity in Admissions” (“Proposal”),
which gave “formal expression” to UT’s “plan to resume
race-conscious admissions.” App. 102a.
As this Court recognized, UT’s Proposal advocated
a return to racial preferences “in substantial part”
because “a study of a subset of undergraduate classes
containing between 5 and 24 students ... showed that few
of these classes had signiÞcant enrollment by members of
racial minorities.” App. 103a. UT also relied on “what it
1. Dr. Larry Faulkner, The “Top 10 Percent Law” is Working
for Texas (Oct. 19, 2000), available at http://www.utexas.edu/
president/past/faulkner/speeches/ten_percent_101900.html (last
visited Feb. 9, 2015).
2. The University of Texas at Austin reacts to the Supreme
Court’s afÞrmative action decisions (June 23, 2003), available
at http://www.utexas.edu/news/06/23/nr_afÞ rmativeaction/ (last
visited Feb. 9, 2015).
6
called ‘anecdotal’ reports from students regarding ‘their
interaction in the classroom,’” id., and on “signiÞcant
differences between the racial and ethnic makeup of the
University’s undergraduate population and the state’s
population,” App. 292a. The Proposal did not include any
analysis of the background or individual characteristics
of the minority admissions that its race-neutral system
produced. It instead faulted the race-neutral system for
not ensuring greater racial diversity at the classroom level
(without investigating any other reasons—such as student
choice—for that problem) and assumed that increasing
total minority admissions by considering race would
ameliorate the problem. App. 291a-292a. UT’s own study,
however, showed that its measure of classroom diversity
decreased while minority enrollment was increasing
steadily between 1996 and 2002. App. 293a.
The Texas Board of Regents approved UT’s proposal
to add racial preferences to the PAI calculation in fall
2004. App. 103a. Race was added to the Þ rst page of each
admissions Þle, and “reviewers are aware of it throughout
the evaluation.” App. 280a. Every applicant is thus labeled
by race, and each can be affected by the racial preferences
because AI/PAI scores determine admissions for non-Top
10% Law applicants and placement in schools and majors
for all applicants. App. 102a-103a.
Notw ithstanding the prevalence of race in its
revised admissions program, adding race to the AI/PAI
calculation has produced negligible increases in minority
enrollment. At the admissions stage, the only applicants
potentially affected by race were non-Top 10% students. 3
3. In 2008, roughly 81% of the class was automatically
admitted under the Top 10% Law, signiÞcantly reducing the pool
of applicants that can be admitted based on race. App. 3a. During
7
The vast majority of those students would have been
admitted irrespective of racial preferences. A comparison
of the percentage of non-Top Ten “underrepresented”
minority students enrolled when race was not part of the
admissions calculus to the percentage of non-Top Ten
“underrepresented” minority students enrolled in 2008
illustrates the point. From 1998 to 2004, when race was not
a factor in admissions, an average of 15.2% of the non-Top
Ten Texas enrollees each year were African-American
or Hispanic. In 2008, 17.9% of the non-Top Ten Texas
enrollees were African-American or Hispanic. Even if this
percentage increase were entirely attributable to UT’s
consideration of race rather than changing demographics
of the applicant pool or other AI and PAI factors, UT’s
consideration of race would have been decisive for only
33 African-American and Hispanic students combined.
That represented approximately 0.5% of the 6,322 instate students enrolled in UT’s 2008 freshman class, and
a far lower percentage of the tens of thousands of in-state
applicants that year, all of whom were classiÞed by race.
The post-discovery summary judgment record does
not include any data showing the background or individual
characteristics of minorities admitted because of the Top
10% Law or through AI/PAI review. It does show, however,
that “underrepresented” minority enrollment under the
Top 10% Law continued to increase through 2008, allowing
UT to enroll a 2008 in-state class that was 25.5% African
American and Hispanic. App. 19a.
this litigation’s pendency, the Texas Legislature amended the
Top 10% Law to limit the number of applicants admitted through
this path at 75% of UT’s overall freshman class. See Tex. Educ.
Code § 51.803(a-1). Under this amendment, the 75% cap will be
lifted if a court ruling prohibits UT from using race as a factor in
undergraduate admissions. See id. § 51.803(k)(1).
8
B. Procedural History And This Court’s Ruling
Petitioner Þ led this suit under the Equal Protection
Clause and 42 U.S.C. § 1983 after she was denied
admission to the entering class of 2008. App. 2a-3a. UT
defended its system as equivalent to the system afÞ rmed
in Grutter and relied on its Proposal to argue that its
efforts to increase minority enrollment properly pursued
a compelling educational interest in reducing demographic
disparities and increasing diversity in small classrooms.
App. 290a-294a. The district court agreed, found UT’s use
of race consistent with Grutter, and granted summary
judgment to UT. App. 315a.
The Fifth Circuit afÞ rmed, holding that UT was “due
deference” on its good-faith judgment that race-based
policies were necessary to increase minority enrollment
because of the demographic and classroom diversity issues
and Þnding that UT’s use of race was narrowly tailored
because it resembled the system approved in Grutter. App.
147a-260a. Judge King concurred to emphasize that no
party to the litigation had challenged “the validity or the
wisdom of the Top Ten Percent Law.” App. 218a. Judge
Garza specially concurred, regretfully agreeing that
Grutter required deference to UT. App. 218a-260a. Absent
deference, Judge Garza saw no constitutional justiÞcation
for UT’s program, which classiÞed every applicant by race
yet “had an inÞnitesimal impact on critical mass in the
student body as a whole.” App. 253a.
The Fifth Circuit denied rehearing en banc. App.
318a-330a. In dissent, then-Chief Judge Jones objected to
the deferential review provided by the panel and concluded
that UT’s system could not be sustained under traditional
9
strict scrutiny. App. 320a-330a. She found that UT’s use
of racial preferences was “gratuitous” as they produced a
“tiny” increase in minority admissions. App. 328a. Judge
Jones further concluded that UT’s classroom diversity
rationale was “without legal foundation, misguided
and pernicious to the goal of eventually ending racially
conscious programs.” App. 330a.
This Court granted certiorari. In its merits brief
and at oral argument, UT abandoned its demographic
and classroom diversity interests in favor of an entirely
new interest in “diversity within racial groups.” Br. of
Respondents 33, Fisher v. Univ. of Texas at Austin, No.
11-345 (Aug. 6, 2012) (“Resp. Br.”). 4 Instead of arguing (as
it had previously) that UT needed to use racial preferences
to increase minority enrollment, UT argued that it needed
racial preferences so that it could enroll minorities with
the characteristics it prefers. Id. at 33-34. For example,
UT argued that racial preferences would allow it to enroll
minority students from “integrated high school[s]” and
more afßuent socio-economic backgrounds over those who
are the “Þ rst in their families to attend college.” Id. Doing
so, UT claimed, would “dispel stereotypical assumptions”
instead of “reinforc[ing]” them. Id. at 34.
This Court vacated the Fifth Circuit’s deferential
decision and remanded the case for review of the summary
4. Regarding demographics, UT took the position that it
“does not use its admissions process to work backwards toward
any demographic target—or, indeed, any target at all.” Resp. Br.
20; id. at 28-29. Regarding classroom diversity, UT claimed to have
“never asserted a compelling interest in any speciÞc diversity in
every single classroom.” Oral Arg. Tr. 34:20-22; see also Resp. Br.
39 (“UT’s objective was far broader than the interest in ‘classroom
diversity’ attacked by petitioner.”).
10
judgment record under traditional strict scrutiny to
determine “whether the University has offered sufÞcient
evidence that would prove that its admissions program
is narrowly tailored to obtain the educational beneÞts
of diversity.” App. 114a. The Court emphasized that the
review on remand must look to “th[e] record—and not
‘simple ... assurances of good intention.’” Id. (quoting
City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500
(1989)). This is because “[s]trict scrutiny is a searching
examination, and it is [UT] that bears the burden to prove
‘that the reasons for any racial classiÞcation are clearly
identiÞed and unquestionably legitimate.’” App. 108a
(quoting Croson, 488 U.S. at 505).
The Court restated the steps required by strict
scrutiny review under prevailing case law. App. 108a-109a.
In so doing, the Court emphasized that “[s]trict scrutiny
requires the university to demonstrate with clarity that
its ‘purpose or interest is both constitutionally permissible
and substantial, and that its use of the classiÞcation is
necessary … to the accomplishment of [that] purpose.’”
App. 107a (quoting Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 305 (1978)). The only academic judgment
to which a court may defer is “that a diverse student
body would serve its educational goals.” App. 110a. Even
then, deference is not unlimited; “[a] university is not
permitted to deÞne diversity as some speciÞed percentage
of a particular group merely because of its race or ethnic
origin …. That would amount to outright racial balancing,
which is patently unconstitutional.” Id. (quotations and
citations omitted).
11
C. Proceedings On Remand
On remand, the Fifth Circuit again afÞ rmed the
grant of summary judgment to UT, this time relying on
UT’s newfound interest in enrolling a sufÞcient number
of minorities from “integrated” high schools with more
favorable socio-economic backgrounds. App. 31a-40a. 5
The Fifth Circuit found that UT’s new approach “is not a
further search for numbers but a search for students of
unique talents and backgrounds.” App. 40a. UT disclaimed
the interest in seeking the demographic parity and
classroom diversity it had relied on in its Proposal and
through the initial round of litigation. Indeed, UT went
so far as to tell the Fifth Circuit that the “objectives” of
“demographic parity” and “classroom diversity” had been
“concocted by Fisher.” Supplemental Brief for Appellees
39, Fisher v. University of Texas at Austin, No. 09-50822
(5th Cir. Oct. 25, 2013).
The Fifth Circuit found that racial preferences were
constitutionally justiÞed by UT’s claimed need to enroll
under-represented minority students from majority-white
high schools who, among other things, have “demonstrated
qualities of leadership and sense of self” that were
purportedly lacking in the minority students admitted
pursuant to the Top 10% Law. App. 39a. Yet the record
contained no evidence or evaluation of the background
of students admitted under the Top 10% Law capable of
supporting this Þnding. The Fifth Circuit just speculated
5. On remand, UT raised the same standing argument it had
raised before this Court. Resp. Br. 16-17 n.6. The majority held the
argument was foreclosed by the mandate rule. App. 8a-10a. Judge
Garza rejected the standing argument on the merits. App. 58a-61a.
12
based on SAT averages and its own demographic research
that students admitted under the Top 10% Law do not
have the “unique talents and higher test scores,” App.
48a, required to “enrich the diversity of the student
body,” App. 40a, because their admission is “measured
solely by class rank in largely segregated schools,” App.
49a, that do not offer “the quality of education available
to students at integrated high schools,” App. 35a. The
Fifth Circuit further held that UT’s system is narrowly
tailored because it does not operate as a quota, affects few
admissions decisions, and furthers an interest that cannot
be satisÞed through the race-neutral Top 10% Law, which
depends “upon segregated schools to produce minority
enrollment.” App. 51a.
Judge Garza dissented. App. 57a-90a. In his view,
the Fifth Circuit had again “defer[red] impermissibly to
[UT’s] claims” and, absent deference, UT could not prevail.
App. 57a. Judge Garza speciÞcally rejected UT’s new claim
that racial preferences are required to “promot[e] the
quality of minority enrollment—in short, diversity within
diversity” by identifying “the most ‘talented, academically
promising, and well-rounded’ minority students.” App.
73a.
First, Judge Garza found that UT did not establish
that such an interest is compelling. The “stated ends
are too imprecise to permit the requisite strict scrutiny
analysis,” App. 74a, because there is no way for a court
“to determine when, if ever, [this] goal (which remains
undeÞned) for qualitative diversity will be reached,” App.
78a.
13
Second, Judge Garza chastised the majority for failing
to require evidence from UT that racial preferences are
needed to further it, even if the interest were cognizable.
UT did not investigate, evaluate, or “assess whether Top
Ten Percent Law admittees exhibit sufÞcient diversity
within diversity” before “deploying racial classiÞcations
to Þll the remaining seats.” App. 74a. Instead, UT created
a litigation position that requires the court “to assume
that minorities admitted under the Top Ten Percent
Law ... are somehow more homogenous, less dynamic,
and more undesirably stereotypical than those admitted
under holistic review.” App. 75a. That assumption alone
is “alarming” as it “embrace[s] the very ill that the Equal
Protection Clause seeks to banish” by stereotyping
students solely because they reside in “majority-minority
communities.” App. 76a. It also is unsupported by any
“evidence in the record,” which strict scrutiny requires.
App. 75a.
The Fifth Circuit denied rehearing en banc by a vote
of 10-5. App. 95a. Joined by four dissenting judges, Judge
Garza reiterated the objections to UT’s program that he
detailed in his panel dissent. Id.
REASONS FOR GRANTING THE PETITION
Certiorari should be granted because the Fifth
Circuit “has decided an important federal question in a
way that conß icts with relevant decisions of this Court.”
SUP. CT. R. 10(c). This Court acknowledged the case’s
importance when it granted review the Þ rst time. The
case has only gained importance since then, as the Fifth
Circuit’s decision on remand overrides this Court’s Fisher
I mandate and strict scrutiny precedent by endorsing an
14
essentially unreviewable post hoc “qualitative” diversity
rationale that is premised on the very racial stereotypes
that the Equal Protection Clause banished. The Court
should grant the petition and reverse the Fifth Circuit’s
judgment.
I.
The Court Should Grant Certiorari Because The
Fifth Circuit Did Not Follow Its Instruction To
Apply Strict Scrutiny On Remand.
This Court’s decision in Fisher I could not have been
more clear. On remand, the Fifth Circuit was to review the
record under the traditional and demanding constraints of
strict scrutiny. App. 114a-115a. The Court reiterated the
ground rules of strict scrutiny at length and in painstaking
detail. App. 108a-112a. And the Court emphasized that
“[s]trict scrutiny must not be strict in theory but feeble
in fact.” App. 115a. The Fifth Circuit did not follow the
Court’s instructions.
This Court explicitly instructed the Fifth Circuit
to conduct strict-scrutiny review without deferring to
UT. App. 110a-111a. “Strict scrutiny does not permit a
court to accept a school’s assertion that its admissions
process uses race in a permissible way without a court
giving close analysis to the evidence of how the process
works in practice.” App. 113a. As Judge Garza thoroughly
explained, however, deference pervades the remand
opinion. App. 57a, 68a, 89a, 90a (Garza, J., dissenting).
Shifting from rational-basis terminology to the rhetoric
of strict scrutiny is not enough to satisfy Fisher I or any
other strict-scrutiny precedent from this Court. The
reviewing “court’s actual analysis must demonstrate that
‘no deference’ has been afforded.” App. 68a (Garza, J.,
dissenting).
15
There can be no question that the Fifth Circuit’s
decision “is squarely at odds with the central lesson of
Fisher.” App. 57a (Garza, J., dissenting). At every turn,
the majority was “persuaded” by UT’s circular legal
arguments, post hoc rationalizations for its decision to
reintroduce racial preferences, and unsupported factual
assertions. See infra at 17-18. “[T]his Court has a special
interest in ensuring that courts on remand follow the letter
and spirit of [its] mandates[.]” Planned Parenthood of Se.
Pa. v. Casey, 510 U.S. 1309, 1311 (1994) (Souter, J.) (citing
In re Sanford Fork & Tool Co., 160 U.S. 247, 255-56 (1895)).
That institutional interest is triggered here as the Fifth
Circuit applied strict scrutiny in name only.
More speciÞcally, this Court directed the Fifth Circuit
to seek “additional guidance … in the Court’s broader
equal protection jurisprudence” as “[t]he higher education
dynamic does not change the narrow tailoring analysis of
strict scrutiny applicable in other contexts.” App. 113a-114a
(citing precedent including Adarand Constructors, Inc.
v. Peña, 515 U.S. 200 (1995), Croson, 488 U.S. 469, and
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986)). But
not only are those decisions “entirely absent” from the
opinion, App. 70a (Garza, J., dissenting), the Fifth Circuit
contravened them in multiple ways. Instead of forcing UT
to defend its use of racial preferences under the heavy
burden of strict scrutiny, the Fifth Circuit once again
allowed UT to make the kind of arguments only available
in rational-basis review.
First, strict scrutiny demands that UT’s “justiÞcation”
for reintroducing racial preferences in 2004 and for using
race to Ms. Fisher’s detriment in 2008 be “genuine,
not hypothesized or invented post hoc in response to
16
litigation.” United States v. Virginia, 518 U.S. 515, 533
(1996); see also Shaw v. Hunt, 517 U.S. 899, 908 n.4 (1996)
(“[T]he State must show that the alleged objective was
the legislature’s ‘actual purpose’ for the discriminatory
classiÞcation.”) (citation omitted). Under rational-basis
review, by contrast, it is “constitutionally irrelevant [what]
reasoning in fact underlay the … decision.” U.S. R.R.
Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980) (citation and
quotations omitted).
The Fifth Circuit did not hold UT to the Proposal’s
demographic parity and classroom diversity justiÞcations;
it permitted UT to replace them with the “qualitative”
rationale raised for the Þ rst time on appeal. It is clear
why UT, facing strict scrutiny for the Þ rst time, would
have abandoned the actual reasons for its decision to
reintroduce racial preferences. App. 320a-330a (Jones,
J., dissenting from the denial of rehearing en banc); App.
218a-260a (Garza, specially concurring); App. 78a-81a
(Garza, J., dissenting). That the handwriting was on the
wall, however, neither licensed UT to defend its program
on a post hoc rationale nor empowered the Fifth Circuit
to countenance that prohibited tactic. UT’s decision to
rely exclusively on a rationale that was invented years
after Ms. Fisher applied and was rejected from UT alone
should have resulted in judgment in her favor. The Fifth
Circuit’s contrary approach violated the established rules
of strict scrutiny.
Second, strict scrutiny required the Fifth Circuit
to ensure that UT “at the time it acted had a strong
basis in evidence to support [its] conclusion” that the
use of race was necessary to achieve its asserted goal of
“qualitative” diversity. Shaw, 517 U.S. at 915. This Court
17
thus instructed the Fifth Circuit to “assess whether [UT]
has offered sufÞcient evidence that would prove that its
admissions program is narrowly tailored to obtain the
educational beneÞts of diversity.” App. 114a. If rationalbasis review applied, by contrast, UT would have been
under “no obligation to produce evidence to sustain [the]
rationality” of the classiÞcation as the “burden is on the
one attacking [it] to negative every conceivable basis which
might support it, whether or not the basis has a foundation
in the record.” Heller v. Doe, 509 U.S. 312, 320-21 (1993).
Not surprisingly, UT could point to no record evidence,
let alone strong evidence, to substantiate its asserted
unmet need for “qualitative” diversity that was invented
when the case was on appeal. The studies underlying the
Proposal tried to examine whether UT was failing to meet
its demographic and classroom diversity goals; no study
attempted to measure whether UT was failing to meet
an interest in “qualitative” diversity. Nor did UT produce
such evidence during discovery or submit any other
contemporaneous evidence to substantiate this interest
during the summary judgment proceedings. Accordingly,
even setting aside the fact that the “qualitative” diversity
interest is an improper post hoc rationale, the lack of any
record evidence showing the need to advance it by racial
preferences also should have meant judgment in Ms.
Fisher’s favor.
Refusing to strike down UT’s use of race in 2008 for
lack of record evidence, the Fifth Circuit “venture[d] far
beyond the summary judgment record,” App. 75a n.15
(Garza, J., dissenting), and conducted its own research
in an attempt to engineer a factual basis for UT’s
“qualitative” diversity goal, see App. 23a-24a n.70, App.
18
25a-26a n.73, App. 32a-33a nn. 97-98, App. 34a-38a nn.
101, 103-120, App. 43a nn. 123-26. But not only was the
appellate factÞnding fruitless, see infra at 21-25, it violated
the Court’s instructions, which directed the Fifth Circuit
to “assess whether the University has offered sufÞcient
evidence” to sustain the admissions program on remand,
App. 114a (emphasis added); see also id. (directing the
Court of Appeals to review “this record”). 6 UT had every
opportunity to develop the record. The appeal needed to be
decided based only upon that evidence. CLS v. Martinez,
561 U.S. 661, 676-78 (2010). That record did not contain
any constitutionally acceptable rationale for the use of
racial preferences in 2008 or any evidence substantiating
the need to use race in pursuit of a post hoc “qualitative”
diversity rationale. The Fifth Circuit thus failed to fulÞ ll
its responsibility to strictly scrutinize UT’s program in
this respect as well.
At base, the Fifth Circuit’s failure to follow this
Court’s instruction to apply strict scrutiny on remand
strikes a blow at the heart of the Fourteenth Amendment.
As the Court has explained many times, “because racial
characteristics so seldom provide a relevant basis for
disparate treatment, the Equal Protection Clause
demands that racial classiÞcations be subjected to the
6. The Fifth Circuit’s factÞ nding expedition also violated
basic rules of appellate procedure. “[F]actÞ nding is the basic
responsibility of the district courts, rather than the appellate
courts.” Maine v. Taylor, 477 U.S. 131, 144-45 (1986). On summary
judgment, therefore, the court of appeals “can consider only those
papers that were before the trial court.” 10A CHARLES A LAN
WRIGHT & A RTHUR R. MILLER, FEDERAL PRACTICE & PROCEDURE,
§2716 (3d ed. 1998); see also Icicle Seafoods, Inc. v. Worthington,
475 U.S. 709, 714 (1986).
19
most rigid scrutiny.” App. 108a (citations, quotations, and
alterations omitted). The Court should grant review to
ensure that this important promise is kept.
II. The Court Should Grant Certiorari Because UT’s
Newly Minted “Qualitative” Diversity Rationale
Cannot Survive Strict Scrutiny.
The Court should review this case for an additional
important reason: the Fifth Circuit’s decision accepted a
novel “qualitative” diversity interest that cannot withstand
rigorous judicial review and is not the educational interest
in enrolling a “critical mass” of minority students that
Grutter found compelling.
A.
UT’s “Qualitative” Interest Is Not Clear,
Legitimate, Or Narrowly Tailored.
The Fifth Circuit’s failure to follow the ground
rules for strict scrutiny enabled it to endorse a novel
“qualitative” diversity interest that foreclosed rigorous
judicial review. UT should have borne the “burden to
prove that the reasons for any racial classiÞcation are
clearly identiÞed and unquestionably legitimate.” App.
108a (quotations and alterations omitted). Had the Fifth
Circuit followed that instruction it would have discovered
that UT’s “qualitative” diversity rationale is neither.
A “qualitative” diversity interest is not a “clearly
identified” educational goal that allows a court to
determine whether “the means chosen by the University
to attain diversity are narrowly tailored to that goal.”
App. 110a. UT “has not provided any concrete targets
for admitting more minority students possessing these
20
unique qualitative-diversity characteristics—that is,
the ‘other types of diversity’ beyond race alone.” App.
74a (Garza, J., dissenting). Nor has it deÞned “[a]t what
point ... this qualitative diversity target [would] be
achieved.” Id. Indeed, UT “offers no method for this
court to determine when, if ever, its goal (which remains
undeÞned) for qualitative diversity will ever be reached.”
App. 78a (Garza, J., dissenting). As Judge Garza put it,
UT’s “qualitative” diversity interest is just “too imprecise
to permit the requisite strict scrutiny analysis.” App. 74a.
The Fifth Circuit failed in its attempt to help UT
deÞ ne what its interest actually is and when it would
be achieved. The majority disclaimed any quantitative
evaluation of the interest because, in its view, UT’s
interest is “not a further search for numbers but a
search for students of unique talents and backgrounds.”
App. 40a (emphasis added). Yet the majority found racial
preferences necessary because “numbers” while “not
controlling” are “relevant,” and “minority representation
... remained largely stagnant ... rather than moving
towards a critical mass of minority students.” App. 48a,
30a. The majority never was able to explain precisely
why enrollment numbers have constitutional relevance
to a qualitative interest that is “not a further search for
numbers” and has “no Þ xed upper bound” or “minimum
threshold.” App. 46a. As a consequence, the majority did
not (and could not) offer a cogent response to Judge Garza’s
charge that the “qualitative” diversity interest has no
termination point because it is in the subjective control
of University administrators.
Fisher I did not demand “clarity” from UT for form’s
sake. App. 107a. Clarity of purpose “ensures that the means
21
chosen ‘Þt’ [the] compelling goal so closely that there is
little or no possibility that the motive for the classiÞcation
was illegitimate racial prejudice or stereotype.” Croson,
488 U.S. at 493. Accepting UT’s amorphous, unbounded,
and subjective “qualitative” interest as compelling would
amount to the very same deference to UT’s use of racial
preferences the Fifth Circuit Þ rst accorded and this
Court rejected. If UT is permitted to determine for itself
when its “qualitative” admissions goals are met, there
will be no way to “‘smoke out’” whether this program is
“illegitimate.” Adarand, 515 U.S. at 226. UT instead will
have the absolute discretion to use race for as long as it
wishes. Any resemblance between strict scrutiny and such
a legal regime is purely coincidental.
Rigorous judicial review would have revealed that
UT’s “qualitative” diversity interest is in fact illegitimate.
It depends on an assumption that, as a group, minorities
admitted through the Top 10% Law “are inherently limited
in their ability to contribute to the University’s vision of
a diverse student body,” App. 75a, merely because many
come from “‘majority-minority communities,’” App. 77a
(Garza, J., dissenting). That rank stereotyping is the “very
ill that the Equal Protection Clause seeks to banish.”
App. 76a (Garza, J., dissenting). Just as “[i]t cannot be
entertained as a serious proposition that all individuals of
the same race think alike,” Schuette v. BAMN, 134 S. Ct.
1623, 1634 (2014), it cannot be assumed that all minorities
admitted via the Top 10% Law uniformly lack the “unique
talents and backgrounds” UT claims to value, App. 40a.
UT may be willing to conclude that this entire body of
minority students lacks a “skill set” UT needs in order
to achieve some version of diversity based on nothing
more than minor differences in average SAT scores and
22
the fact that many did not matriculate from “majority
white” high schools. App. 53a. But the Equal Protection
Clause does not allow UT to “substitute racial stereotype
for evidence, and racial prejudice for reason.” Calhoun v.
United States, 133 S. Ct. 1136, 1137 (2013) (Sotomayor, J.,
respecting denial of certiorari).
Even assuming UT’s qualitative diversity goal were
legitimate, which it is not, UT still could not meet its
narrow-tailoring burden. Strict scrutiny requires that UT
show that its interest in “qualitative” diversity cannot be
satisÞed through race-neutral means. See App. 111a-112a
(“The reviewing court must ultimately be satisÞed that
no workable race-neutral alternatives would produce
the educational beneÞts of diversity.”). Here, then, UT
must show that the “qualitative” characteristics it seeks
are uniquely present among minority applicants that
receive racial preferences and gain admission through
the “holistic” AI/PAI process because of them. Yet
nothing in the record shows that “qualitative diversity is
absent among the minority students admitted” through
the operation of the race-neutral Top 10% Law. App. 74a
(Garza, J., dissenting). Nor does the record even show
“that any minority students admitted under holistic
review come from majority-white schools” where UT
claims the needed characteristics are developed. App.
77a n.17 (Garza, J., dissenting). An array of unproven and
counter-intuitive assumptions cannot satisfy UT’s narrow
tailoring burden.
Indeed, UT does not even “evaluate the diversity
present in [the Top 10% Law] group before deploying
racial classiÞcations to Þ ll the remaining seats.” App.
74a (Garza, J., dissenting). That is, UT “does not assess”
23
whether Top 10% Law “admittees exhibit sufficient
diversity within diversity, whether the requisite ‘change
agents’ are among them, and whether these admittees
are able, collectively or individually, to combat pernicious
stereotypes.” Id. UT instead asks the Court “to assume
that minorities admitted under the” Top 10% Law “are
somehow more homogenous, less dynamic, and more
undesirably stereotypical than those admitted under
holistic review.” App. 75a (Garza, J., dissenting). But
because UT “offers no evidence in the record to prove this,”
and because the assumption is itself noxious, the Court
“must therefore refuse to make this assumption.” Id. In
short, UT has utterly failed to substantiate the necessity of
using racial preferences to achieve “qualitative” diversity.
The Fifth Circuit’s own factÞnding fares no better. It
compiled aggregate data about Texas high school districts,
which shows only that certain Texas school “districts
serve majority-minority communities.” App. 77a (Garza,
J., dissenting). It did not attempt to identify students
from those districts that enrolled at UT or consider their
individual characteristics. Instead, the Fifth Circuit
simply conÞ rmed that majority-minority communities
exist, and then accepted UT’s “standing presumption
that minority students admitted [from them] under the
Top Ten Percent Law do not possess the characteristics
necessary to achieve a campus environment deÞned by
‘qualitative diversity.’” Id.
The Equal Protection Clause forbids courts, no less
than litigants, from relying on “overbroad generalizations
about the different talents, capacities, or preferences”
of minority children based solely on the racial makeup
of their community and average SAT scores. Virginia,
24
518 U.S. at 533. Such generalizations are not a substitute
for “persuasive evidence” that racial preferences are
necessary to achieve diversity. Id. at 539. By accepting
UT’s decision to view minority students admitted via the
Top 10% Law this way, “the majority engages in the very
stereotyping that the Equal Protection Clause abhors.”
App. 77a (Garza, J., dissenting).
UT’s use of racial preferences also fails the Court’s
narrow tailoring requirement because UT’s own AI/PAI
system is at war with this alleged interest in “qualitative”
diversity. UT claims to need racial preferences in order to
enroll more minority applicants from “high-performing”
majority-majority high schools. Resp. Br. 33-34; App.
31a-32a & nn.96-97. Yet UT has incorporated racial
preferences into an AI/PAI scoring system that makes
it more difÞcult for such students to secure admission.
The PAI gives a signiÞcant race-neutral preference to
socio-economically disadvantaged students that tend to
come from majority-minority high schools. See supra at
4. Furthermore, UT’s outreach and scholarship programs
target “predominantly low-income student populations.”
App. 26a. UT cannot seriously claim that it needs to use
racial preferences to enroll a cohort of applicants it has
chosen to handicap in the application process.7
7. UT also has argued that using race in holistic admissions
“giv[es] high scoring minority students a better chance of gaining
admission to [UT’s] competitive academic departments” than does
the Top 10% Law. App. 49a. But the record evidence shows that,
from 2005 to 2007, “underrepresented” minorities admitted via the
Top 10% Law were accepted into the most competitive programs
at substantially higher rates than minority students admitted
through the holistic admissions process. In fact, no African
American admitted holistically was accepted into UT’s highly
25
UT’s AI/PAI system therefore does not even remotely
advance its claimed interest. If UT wished to enroll more
minority students from afßuent communities, it could have
eliminated from the PAI calculation the socio-economic
and other preferences that operate to their disadvantage.
UT also could have awarded a preference to students from
high-performing schools or made the AI scoring (which
takes SAT performance into account) a greater factor
in admissions decisions. Any or all of these race-neutral
policies could have increased the admission chances
of afßuent minority applicants as much or more than
layering racial preferences on top of UT’s preexisting
AI/PAI system. Strict scrutiny imposes on UT “the
ultimate burden of demonstrating, before turning to racial
classifications, that available, workable race-neutral
alternatives do not sufÞce.” App. 112a (emphasis added).
UT has not met that burden.
B. UT’s “Qualitative” Interest Is Not A Last
Resort Necessary To Achieve An Educational
Goal That This Court Has Found Compelling.
As explained above, UT’s “qualitative” diversity goal
fails strict scrutiny on its own terms. But this post hoc
goal suffers from an even more fundamental defect: it is
not narrowly tailored to achieve any educational interest
this Court has found compelling. It certainly has nothing
to do with the “critical mass” interest found compelling in
Grutter. As this Court has explained, “critical mass means
competitive Business, Communications, or Nursing programs
from 2005 to 2007. At the same time, nearly half of all African
Americans admitted via holistic review were cascaded into Liberal
Arts. It is UT’s race-based holistic admissions—not the Top 10%
Law—that has “clustering tendencies.” Cf. App. 50a.
26
numbers such that underrepresented minority students
do not feel isolated or like spokespersons for their race.”
Grutter, 539 U.S. at 319. Having abandoned the classroom
diversity study UT previously touted as showing that this
interest had not been satisÞed, there is no longer any
argument that minorities studying at UT suffer from
racial isolation on campus or feel like spokespersons for
their race in the classroom or anyplace else. 8
As a consequence, UT cannot offer any rationale for
why Grutter would permit it to layer a system of racial
preferences that “admits only a small number of minority
students under race-conscious holistic review,” App. 71a
(Garza, J., dissenting), on top of “a race-neutral policy
[that] has resulted in over one-Þ fth of [UT] entrants
being African-American or Hispanic,” App. 328a (Jones,
J., dissenting from denial of rehearing en banc). As Judge
Garza explained, UT “fails to explain how this small
group contributes to its ‘critical mass’ objective.” App.
72a. There is simply no defense under Grutter for a race8. It is impossible to square UT’s use of racial preferences
to enroll more afßuent minorities with Grutter for an additional
reason. Grutter claims to look to racial diversity as a means of
educating the entire student body by bringing to bear diverse life
experiences, socio-economic backgrounds, and differing points
of view. See Grutter, 539 U.S. at 330. UT’s newfound qualitative
interest, in contrast, is premised on the alleged need to pursue
those minorities with backgrounds and experiences least divergent
from those of non-minority students. UT has made no showing
that less diverse socio-economic backgrounds produce more
potentially enriching differences in perspective. In fact, UT
adversely stereotypes minority applicants from majority-minority
communities who may well have more ability to break down
misperceptions than those generated from the pool of preferred
minority candidates that UT claims to be pursuing.
27
based admissions system that labels every applicant by
race and yet has only “an inÞnitesimal impact on critical
mass in the student body as a whole.” App. 45a (Jones,
J., dissenting from denial of rehearing en banc) (citing
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No.
1, 551 U.S. 701, 734-35 (2007)).
Indeed, the Fifth Circuit barely attempts to defend
the “qualitative” diversity interest under Grutter; and the
opinion does not grapple at all with Parents Involved. The
majority instead claims that this “qualitative” interest
follows directly from Judge Powell’s opinion in Bakke. See
438 U.S. at 269-324. In its view, an admissions program
using racial preferences to make a “contribution to the
richness of diversity as envisioned by Bakke” will never
make a large contribution to minority enrollment. App.
45a. But the majority ignored that UT does not employ
racial preferences in the manner Bakke envisioned.
Justice Powell’s Bakke opinion suggested that the use
of race to make comparative decisions between qualiÞed
applicants when there were “a few places left to Þ ll” in an
entering class could be constitutionally justiÞed to advance
educational diversity. Bakke, 438 U.S. at 324 (Appendix to
opinion of Powell, J.). But Bakke never contemplated the
wholesale use of race in the scoring of all applicants. Bakke
assumed an individualized marginal admissions process
with head-to-head applicant comparison rather than a
scoring system where race is a universal factor. At most,
Bakke might have applied were UT to have used a system
where a pool of applicants for a limited number of places
was individually evaluated and race was employed as a tie
breaker based on a demonstrated gap in the diversity of
those admitted on a race-neutral basis. See Grutter, 539
U.S. at 387 (Kennedy, J., dissenting).
28
But UT did not choose that path. The undisputed
record shows that each applicant Þ le considered by UT is
branded with race on its cover, that each applicant receives
a PAI score in which race counts, and that the eligibility
of applicants for speciÞc schools and majors is dependent
on an AI/PAI matrix. App. 102a-103a. Having chosen to
label each and every applicant by race, UT was obligated
to prove that the educational benefit of that system
“outweigh[s] the cost of subjecting” approximately 30,000
applicants annually “to disparate treatment based solely
upon the color of their skin.” Parents Involved, 551 U.S. at
734. As in Parents Involved, then, “the minimal impact”
of UT’s “racial classiÞcations on school enrollment casts
doubt on the necessity of using racial classiÞcations.” Id. at
790 (Kennedy, J., concurring in part and in the judgment).
Using racial preferences, which should be a “last resort,”
id., is inherently suspect when “[t]he additional diversity
contribution of [UT’s] race-conscious admissions program
is tiny, and far from ‘indispensable,’” App. 328a (Jones, J.,
dissenting from denial of rehearing en banc).
The Fifth Circuit also suggested that the contribution
of racial preferences was tiny only because the AI/PAI
system applied to 20 percent of total admissions in 2008
and would have made a greater numerical contribution if
AI/PAI applied to the 80 percent of admissions generated
by the Top 10% Law. App. 22a-25a. But UT, of course,
did not “choose” to limit AI/PAI admissions to this small
fragment of the entering class. That limitation was in
place because the Texas Legislature passed the Top 10%
Law, which preceded UT’s hasty decision to reintroduce
racial preferences on the same day this Court announced
its decision in Grutter. See supra at 5.
29
The Fifth Circuit’s opinion is pervaded by its distaste
for the Top 10% Law, which in its view restricted UT’s
ability to be an academically elite institution. In fact,
the Court went so far as to suggest that UT might elect
to use “Grutter’s holistic review to select 80% or all of
its students” if it is not permitted to retain its current
system of racial preferences. App. 22a. But the Top
10% Law is unchallenged here, App. 87a-88a (Garza, J.,
dissenting); App. 218a (King, J., specially concurring), and
is an unquestionably legitimate enactment by the Texas
Legislature, Schuette, 134 S. Ct. at 1638. It was not the
role of the Fifth Circuit to judge that law’s educational
merit. The court’s distaste for the Top 10% Law provided
no basis for ignoring the critical mass of minority students
it inevitably generated.
III. Review Is Essential To Permit Strict Scrutiny To
Play Its Intended Role In Ensuring That Racial
Preferences Do Not Trample The Right To Equal
Protection.
The Fifth Circuit’s refusal to honor this Court’s clear
instruction to apply strict scrutiny to the record is reason
enough to grant the Petition. But much more is at stake
here. Allowing a decision on remand to stand that endorses
a noxious “qualitative” diversity interest raised for the
Þ rst time on appeal and which is devoid of any record
support will have ramiÞcations far beyond this case.
There have always been those within the Court that
have correctly believed that any use of racial classiÞcation
outside the remedial setting conßicts with the Fourteenth
Amendment’s text and history. Plessy v. Ferguson, 163
30
U.S. 537, 552-62 (1896) (Harlan, J., dissenting); Croson,
488 U.S. at 520-28 (Scalia, J., concurring in the judgment);
Grutter, 539 U.S. at 350-74 (Thomas, J., concurring in part
and dissenting in part). “The moral imperative of racial
neutrality is the driving force of the Equal Protection
clause.” Croson, 488 U.S. at 518 (Kennedy, J. concurring in
part and in the judgment). Eliminating racial preferences
in education altogether would honor “important structural
goals” by eliminating “the necessity for courts to pass
upon each racial preference that is enacted.” Id.
To date, the Court has declined to act on this view of
the Equal Protection Clause on the understanding that “in
application, the strict scrutiny standard [would] operate
in a manner generally consistent with the imperative of
race neutrality, because it forbids the use even of narrowly
drawn racial classiÞcations except as a last resort.” Id. at
519. But if “strict scrutiny is abandoned or manipulated
to distort its real and accepted meaning, the Court lacks
authority to approve the use of race even in this modest
limited way.” Grutter, 539 U.S. at 387 (Kennedy, J.
dissenting). When the Court “does not apply strict scrutiny
… it undermines both the test and its own controlling
precedents.” Id. If Fisher I permits UT to prevail here,
the Court will need to rethink its endorsement of Grutter’s
diversity interest given the diminished force of “stare
decisis when fundamental points of doctrine are at stake.”
Parents Involved, 551 U.S. at 792 (Kennedy, J., concurring
in part and concurring in the judgment). Put plainly, the
promise of strict scrutiny is illusory if UT can invent a
“qualitative” diversity rationale for its program on appeal
and then successfully defend that unfortunate rationale
without any supporting record evidence.
31
The inference universities will draw from the Fifth
Circuit’s decision is inescapable. This Court’s promise of
non-deferential strict scrutiny in Fisher I will be viewed
as purely rhetorical. By invoking a “qualitative” diversity
rationale, any university could evade strict-scrutiny
review regardless of the level and educational contribution
of minorities admitted through race-neutral means.
By avoiding express quotas or defined point awards
and using race in a multi-factor admissions calculus, a
university could claim to satisfy narrow tailoring. The
university then might assume that using race to produce
an overall increase in minority admissions, however tiny,
will somehow advance its qualitative goal. In sum, leaving
the Fifth Circuit’s decision unreviewed will render strict
scrutiny a pro forma exercise. Qualitative diversity can
mean whatever a university wants it to mean and can be
unsatisÞed for however long a university wants it to be
unsatisÞed. It is a recipe for endless racial preferences.
The proliferation of the “qualitative” diversity interest
advanced by universal racial preferences thus will only
heighten the concern that “each applicant” is not being
“evaluated as an individual and not in a way that makes
an applicant’s race or ethnicity the deÞ ning feature of
his or her application.” App. 107a (citation and quotations
omitted). UT’s stated use of racial preferences in order
to admit the hypothetical “African American or Hispanic
child of successful professionals in Dallas” in place of Ms.
Fisher, Resp. Br. 34, demonstrates that race, and race
alone, is determinative when “qualitative” diversity is the
goal. If that hypothetical student and Abigail Fisher come
from similar family backgrounds, share the same socioeconomic status, and are comparably educated through
high school, they should compete equally for admission
32
and race should be no factor. Preferring one to the other,
as UT does, therefore cannot be about enrolling students
from “the greatest possible variety of backgrounds.”
Grutter, 539 U.S. at 330. So although UT may claim that
it is genuinely interested in “qualitative” diversity, the
answer to Justice Kennedy’s question at oral argument
in Fisher I: “So what you’re saying is that what counts is
race above all?,” Oral Arg. Tr. 45:3-4, is of course “yes.”
In Schuette, the Court sought to encourage a “national
dialogue regarding the wisdom and practicality of raceconscious admissions policies in higher education.” 134 S.
Ct. at 1631. That important conversation can occur only if
universities believe that use of racial preferences will be
subject to strict scrutiny. Experience sadly teaches that
only “[c]onstant and rigorous judicial review” will “force
educational institutions to seriously explore race-neutral
alternatives [that are] ... more effective in bringing about
the harmony and mutual respect among all citizens that
our constitutional tradition has always sought.” Grutter,
539 U.S. at 393-95 (Kennedy, J., dissenting). Universities
will view a decision leaving the Fifth Circuit’s judgment
undisturbed as “a green light” to use racial preferences
unencumbered by meaningful judicial oversight. App. 321a
(Jones, J., dissenting from the denial of rehearing en banc).
And they will have absolutely no “incentive to make the
existing minority admissions schemes transparent and
protective of individual review.” Grutter, 539 U.S. at 394
(Kennedy, J., dissenting).
By granting certiorari in this case and reinforcing
the limiting constitutional boundaries of strict scrutiny,
the Court will foster that dialogue and put an end to the
33
masking of general social justice concerns as compelling
educational interests. “Prospective students, the courts,
and the public” must be able to “demand that [universities]
prove their process is fair and constitutional in every phase
of implementation.” Grutter, 539 U.S. at 394 (Kennedy,
J., dissenting). Unless the Court is able to enforce this
commitment, “[s]tructural protections may be necessities
if moral imperatives are to be obeyed.” Croson, 458 U.S.
at 518 (Kennedy, J., concurring in part and concurring in
the judgment).
CONCLUSION
The Court should grant the petition.
Respectfully submitted,
WILLIAM S. CONSOVOY
THOMAS R. MCCARTHY
J. MICHAEL CONNOLLY
CONSOVOY MCCARTHY PLLC
3033 Wilson Boulevard
Suite 700
Arlington, VA 22201
PAUL M. TERRILL
THE TERRILL FIRM, P.C.
810 W. 10th Street
Austin, TX 78701
BERT W. REIN
Counsel of Record
CLAIRE J. EVANS
BRENDAN J. MORRISSEY
WILEY REIN LLP
1776 K STREET NW
WASHINGTON, DC 20006
(202) 719-7000
brein@wileyrein.com
Attorneys for Petitioner
Date: February 10, 2015
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