STUDENTS FOR FAIR ADMISSIONS, INC. v. UNIVERSITY OF NORTH CAROLINA, et al

Filing 30

ANSWER to 1 Complaint and Affirmative Defenses by ROGER AIKEN, W. LOUIS BISSETTE, JR, JAMES W. DEAN, JR, STEPHEN M. FARMER, JOHN C. FENNEBRESQUE, CAROL L. FOLT, H. FRANK FRAINGER, HANNAH D. GAGE, ANN B. GOODNIGHT, PETER D. HANS, THOMAS J. HARRELSON, HENRY W. HINTON, JAMES L. HOLMES, JR, RODNEY E. HOOD, W. MARTY KOTIS, III, G. LEROY LAIL, SCOTT LAMPE, STEVEN B. LONG, JOAN G. MACNEILL, HARI H. MATH, MARY ANN MAXWELL, W. EDWIN MCMAHAN, W.G. CHAMPION MITCHELL, ANNA SPANGLER NELSON, ALEX PARKER, R. DOYLE PARRISH, JOAN TEMPLETON PERRY, THERENCE O. PICKETT, DAVID M. POWERS, ROBERT S. RIPPY, THOMAS W. ROSS, HARRY LEO SMITH, JR, J. CRAIG SOUZA, GEORGE A. SYWASSINK, RICHARD F. TAYLOR, RAIFORD TRASK, III, UNIVERSITY OF NORTH CAROLINA, UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, UNIVERSITY OF NORTH CAROLINA BOARD OF GOVERNORS, PHILLIP D. WALKER, LAURA I. WILEY. (SCUDDER, MICHAEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Civil Action No. 1:14-CV-954
STUDENTS FOR FAIR ADMISSIONS,
INC.

Plaintiff,
v.
THE UNIVERSITY OF NORTH
CAROLINA AT CHAPEL HILL, et al.,
Defendants.
ANSWER
Defendants the University of North Carolina (“UNC System”), UNC
System President Thomas W. Ross, the UNC System Board of Governors and its
individual members John C. Fennebresque, W. Louis Bissette, Jr., Joan Templeton Perry,
Roger Aiken, Hannah D. Gage, Ann B. Goodnight, H. Frank Frainger, Peter D. Hans,
Thomas J. Harrelson, Henry W. Hinton, James L. Holmes, Jr., Rodney E. Hood, W.
Marty Kotis III, G. Leroy Lail, Scott Lampe, Steven B. Long, Joan G. MacNeill, Mary
Ann Maxwell, W. Edwin McMahan, W.G. Champion Mitchell, Hari H. Math, Anna
Spangler Nelson, Alex Parker, R. Doyle Parrish, Therence O. Pickett, David M. Powers,
Robert S. Rippy, Harry Leo Smith, Jr., J. Craig Souza, George A. Sywassink, Richard F.
Taylor, Raiford Trask III, Phillip D. Walker, Laura I. Wiley (collectively, “UNC System

Defendants”), The University of North Carolina at Chapel Hill (“UNC-Chapel Hill”),
UNC-Chapel Hill Chancellor Carol L. Folt, UNC-Chapel Hill Executive Vice Chancellor
and Provost James W. Dean, and UNC-Chapel Hill Vice Provost for Enrollment and
Undergraduate Admissions Stephen M. Farmer (collectively, the “UNC-Chapel Hill
Defendants”), by and through counsel, hereby answer Plaintiff’s Complaint.
INTRODUCTION
On November 17, 2014, Plaintiff filed its Complaint asserting three claims
under the Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and §2000d (“Title VI”)
against all Defendants. The parties subsequently undertook discussions regarding a
narrowing and streamlining of the parties and claims to the Complaint.
On March 20, 2015, the parties filed with the Court a Joint Stipulation of
Dismissal. The filing of the Stipulation of Dismissal resulted by operation of Fed. R.
Civ. P. 41(a)(1)(B) in the dismissal of all claims against the UNC-Chapel Hill Board of
Trustees and its individual members; the dismissal of each of Plaintiff’s Section 1981
claims against all defendants; the dismissal of Plaintiff’s Section 1983 claims against
UNC-Chapel Hill, the UNC System, and the UNC Board of Governors; and the dismissal
of Plaintiff’s Title VI claims against the individual members of the UNC Board of
Governors, Defendant Ross, Defendant Folt, Defendant Dean, and Defendant Farmer.
Plaintiff has not filed an Amended Complaint.

2

The UNC System, UNC Board of Governors, UNC-Chapel Hill, the
individual members of the UNC Board of Governors, Defendant Ross, Defendant Folt,
Defendant Dean, and Defendant Farmer (collectively, the “Defendants”) remain as
Defendants in this action. The UNC System, UNC Board of Governors, and UNCChapel Hill are defendants solely to three claims brought under Title VI. The individual
members of the UNC Board of Governors, Ross, Folt, Dean, and Farmer are defendants
solely to three claims brought under Section 1983. This Answer serves as the remaining
Defendants’ answer to each of the claims remaining against them following the
aforementioned filing of the Joint Stipulation of Dismissal.
For the purposes of organization, the Defendants have adopted the headings
set forth in Plaintiff’s Complaint. The adoption of such headings, however, does not
constitute an admission of any kind. Each and every allegation of the Complaint that
relates or is directed to the Defendants is denied unless expressly admitted in this
Answer. It is expressly denied that Defendants unlawfully discriminate in any aspect of
UNC-Chapel Hill undergraduate admissions against Plaintiff or any of its purported
members on the basis of race or ethnicity.
The UNC Board of Governors is responsible for the general determination,
control and governance of the UNC System, a public multi-campus university consisting
of seventeen constituent institutions, including UNC-Chapel Hill. The UNC System
Defendants state that the Board of Governors has exercised its power to delegate to UNCChapel Hill and its officials the duty and authority to set and implement the
3

undergraduate admissions policy for UNC-Chapel Hill. Accordingly, UNC-Chapel Hill’s
undergraduate admissions policy as alleged in the Complaint is established and
implemented by UNC-Chapel Hill.
As a result of this organizational structure and division of responsibilities,
including by virtue of the delegation of powers from the Board of Governors to UNCChapel Hill, and the particular matters addressed in the Complaint, the UNC System
Defendants lack personal knowledge or information sufficient to form a belief about the
truth or falsity of the allegations in the Complaint relating to UNC-Chapel Hill’s
undergraduate admissions policy and UNC-Chapel Hill’s implementation of that
policy. Accordingly, the UNC System Defendants generally deny those allegations for
purposes of this Answer.
Otherwise, based on the collective knowledge of Defendants, Defendants
respond to the numbered allegations in the Complaint as follows:

4

I.

INTRODUCTION
1.

This is an action brought under the Fourteenth Amendment and federal

civil rights laws to prohibit UNC-Chapel Hill from engaging in intentional discrimination
on the basis of race and ethnicity. “Classifications of citizens solely on the basis of race
are by their very nature odious to a free people whose institutions are founded upon the
doctrine of equality. They threaten to stigmatize individuals by reason of their
membership in a racial group and to incite racial hostility.” Shaw v. Reno, 509 U.S. 630,
643 (1993) (citations and quotations omitted). As a consequence, racial classifications
are highly disfavored and have been permitted only when there is a compelling
government interest that cannot be met through race- neutral means. In the educational
setting, “diversity” is the only interest the Supreme Court has found compelling. Even
then, the Supreme Court has mandated strict judicial scrutiny to ensure that an academic
institution is actually pursuing that interest and that it is absolutely necessary to employ
racial preferences in order to achieve a diverse student body.
ANSWER TO PARAGRAPH 1: The allegations in Paragraph 1 contain
Plaintiff’s characterization of its action and legal conclusions to which no response is
required. To the extent necessary, Defendants deny the allegations in Paragraph 1.
2.

Yet the Supreme Court has always had misgivings about its decision to

permit any use of racial preferences in university admissions. See City of Richmond v.
J.A. Croson Co., 488 U.S. 469, 518 (1989) (Kennedy, J., concurring in part and

5

concurring in the judgment). The Supreme Court was nevertheless convinced to permit
racial preferences in pursuit of diversity for two reasons. First, based mainly on an
amicus brief that Harvard submitted, the Supreme Court was led to believe that schools
only would “take account of race as one, nonpredominant factor in a system designed to
consider each applicant as an individual.” Grutter v. Bollinger, 539 U.S. 306, 387 (2003)
(Kennedy, J., dissenting) (citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 289-91
(1978)). Second, the Supreme Court believed that 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 classifications except as a last resort.”
Croson, 488 U.S. at 519 (Kennedy, J., concurring in part and concurring in the
judgment).
ANSWER TO PARAGRAPH 2: The allegations in Paragraph 2 contain legal
conclusions to which no response is required. To the extent necessary, Defendants deny
the allegations in Paragraph 2.
3.

The Supreme Court was misled. No college or university, including UNC-

Chapel Hill or Harvard itself, merely uses race contextually to fill the last few seats in the
entering freshman class. Indeed, UNC-Chapel Hill adamantly denies that it uses race in
this manner. UNC-Chapel Hill, like all other colleges and universities, labels every
applicant by race on the claim that it is pursuing the so-called “critical mass” diversity
objective. That creates two problems for UNC-Chapel Hill. First, by failing to

6

implement the “Harvard Plan” rationale that led to the permissibility of racial admissions
preferences, UNC-Chapel Hill has deprived the Court of any continuing “authority to
approve the use of race in pursuit of student diversity.” Grutter, 539 U.S. at 394
(Kennedy, J., dissenting). Second, UNC-Chapel Hill’s claimed interest—critical mass—
never should have been endorsed and should be outlawed once and for all. “[T]he
concept of critical mass is a delusion used … to mask [an] attempt to make race an
automatic factor in most instances and to achieve numerical goals indistinguishable from
quotas.” Id. at 389.
ANSWER TO PARAGRAPH 3: The allegations in Paragraph 3 contain
Plaintiff’s characterization of its action and legal conclusions to which no response is
required. Defendants lack knowledge or information sufficient to form a belief about the
truth or falsity of the allegations in Paragraph 3 concerning colleges or universities other
than UNC-Chapel Hill, and therefore deny those allegations. Defendants deny the
remaining allegations in Paragraph 3.
4.

Worse still, UNC-Chapel Hill is not even pursuing its claimed “critical

mass” interest. Rather, even under governing precedent, UNC-Chapel Hill is violating
the Fourteenth Amendment and federal civil rights laws for at least two reasons. First,
UNC-Chapel Hill is not using race merely as a “plus factor” in admissions decisions.
Rather, UNC-Chapel Hill’s racial preference for each underrepresented minority student
(which equates to a penalty imposed upon white and Asian-American applicants) is so

7

large that race becomes the “defining feature of his or her application.” Grutter, 539 U.S.
at 337. Only using race or ethnicity as a dominant factor in admissions decisions could,
for example, account for the disparate treatment of high-achieving Asian-American and
white applicants and underrepresented minority applicants with inferior academic
credentials. UNC-Chapel Hill’s admissions decisions simply are not explainable on
grounds other than race. High-achieving Asian-American and white applicants are as
broadly diverse and eclectic in their abilities and interests as any other group seeking
admission to UNC-Chapel Hill. They compete in interscholastic sports, are members of
the school band, work part-time jobs after school, travel, and engage in volunteer work
just like everyone else. It is not a lack of non-academic achievement that is keeping them
from securing admission. It is UNC-Chapel Hill’s dominant use of racial preferences to
their detriment.
ANSWER TO PARAGRAPH 4: Defendants admit, to the extent alleged in
Paragraph 4, that high-achieving Asian-American and white applicants are diverse in
their interests and engage in a variety of activities. Defendants deny the remaining
allegations contained in Paragraph 4, except to the extent that they contain conclusions of
law, to which no response is required.
5.

Second, UNC-Chapel Hill is using race in admissions decisions when race-

neutral alternatives can achieve diversity. As other elite universities have shown,
increased utilization of non-race-based criteria, such as socioeconomic preferences, can

8

promote diversity about as well as racial preferences. This approach is particularly
effective when combined with increased use of financial aid, scholarships, and
recruitment to attract and enroll minority applicants and the elimination of admissions
policies and practices, such as legacy preferences and early admission, which operate to
the disadvantage of minority applicants. Further, eliminating racial preferences at UNCChapel Hill will alleviate the substantial harm these discriminatory policies cause to those
minority applicants who receive such admissions preferences, the North Carolina
community, and society as a whole. Racial preferences are a dangerous tool and may
only be used as a last resort. There is now overwhelming evidence that race-neutral
alternatives render reliance on racial preferences unnecessary.
ANSWER TO PARAGRAPH 5: Defendants deny the allegations in Paragraph 5,
except to the extent that they contain conclusions of law, to which no response is
required.
6.

UNC-Chapel Hill’s refusal to avail itself of race-neutral alternatives is

especially troubling given that it knows at least one form of socioeconomic preference
would be workable. UNC-Chapel Hill conducted its own study to determine whether
granting automatic admission to North Carolina students in the top ten percent of their
high school class would work about as well as racial preferences in achieving diversity.
The study showed that a percentage plan would in fact work better than racial preferences
in achieving diversity in that such a plan would boost minority enrollment. The

9

pretextual reasons UNC-Chapel Hill gave for deeming this alternative unworkable, such
as a trivial decrease in average SAT scores, will never survive strict judicial scrutiny
given how disfavored the use of race is under the Fourteenth Amendment. The fact that
it requires a lawsuit to make UNC-Chapel Hill install a race-neutral alternative that it
already knows will increase diversity on its campus is discouraging. It was UNC-Chapel
Hill’s responsibility to take full advantage of this alternative on its own accord, not to
stubbornly resist abandoning racial preferences until a federal court orders it to do so.
ANSWER TO PARAGRAPH 6: Defendants admit, to the extent alleged in
Paragraph 6, that UNC-Chapel Hill conducted a study to determine whether granting
automatic admissions to North Carolina students in the top 10% of their high school was
a feasible alternative in achieving diversity. Defendants deny the remaining allegations
in Paragraph 6, except to the extent that they contain conclusions of law, to which no
response is required.
7.

Accordingly, there is no doubt that UNC-Chapel Hill is in violation of the

Fourteenth Amendment and federal civil rights laws. The only question is the proper
judicial response. Given what is occurring at UNC-Chapel Hill and other schools, the
proper response is the outright prohibition of racial preferences in university
admissions—period. Allowing this issue to be litigated in case after case will only
“perpetuate the hostilities that proper consideration of race is designed to avoid.”
Grutter, 539 U.S. at 394 (Kennedy, J., dissenting). UNC-Chapel Hill and other academic

10

institutions cannot and should not be trusted with the awesome and historically dangerous
tool of racial classification. As in the past, they will use any leeway the Supreme Court
grants them to use racial preferences in college admissions—under whatever rubric—to
engage in racial stereotyping and other forms of discrimination to advance their socialengineering agenda. Strict scrutiny has proven to be no match for concerted
discrimination hidden behind the veil of “holistic” admissions. There may be times when
social problems can be solved democratically. But massive resistance to racial equality is
not one of them. See Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955). “The
moral imperative of racial neutrality is the driving force of the Equal Protection
Clause …. Structural protections may be necessities if moral imperatives are to be
obeyed.” Croson, 488 U.S. at 518 (Kennedy, J., concurring in part and concurring in the
judgment).
ANSWER TO PARAGRAPH 7: The allegations in Paragraph 7 contain
Plaintiff’s characterization of its action and legal conclusions to which no response is
required. To the extent necessary, the allegations are denied. Defendants specifically
deny that they are violating the Fourteenth Amendment and federal civil rights laws.

11

II.

JURISDICTION AND VENUE
8.

This action arises under section 1 of the Fourteenth Amendment to the

United States Constitution and under federal civil rights statutes 42 U.S.C. §§ 1981,
1983, and 2000d et seq. This Court has subject matter jurisdiction under 28 U.S.C. §§
1331 and 1343.
ANSWER TO PARAGRAPH 8: Defendants admit, as alleged in Paragraph 8,
that Plaintiff has brought this action under the Fourteenth Amendment to the U.S.
Constitution and under 42 U.S.C. §§ 1981, 1983, & 2000d et seq. and that this Court has
subject matter jurisdiction over the action pursuant to 28 U.S.C. §§ 1331 & 1343.
Defendants further state that Plaintiff’s claims arising under Section 1981 have been
dismissed pursuant to the aforementioned filing of the Joint Stipulation of Dismissal on
March 20, 2015.
9.

Venue is proper in the Middle District of North Carolina under 28 U.S.C. §

1391 because the events giving rise to the claims detailed herein occurred in the Middle
District of North Carolina.
ANSWER TO PARAGRAPH 9: Defendants admit, as alleged in Paragraph 9,
that venue is proper in the Middle District of North Carolina.

12

III.

THE PARTIES

A.

Plaintiff
10.

Plaintiff, Students for Fair Admissions, Inc. (“SFFA”) is an Internal

Revenue Code Section 501(c)(3) organization formed for the purpose of defending
human and civil rights secured by law, including the right of individuals to equal
protection under the law, through litigation and any other lawful means. More
specifically, SFFA seeks to promote and protect the right of the public to be free from
discrimination on the basis of race in higher education admissions.
ANSWER TO PARAGRAPH 10: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 10 and
therefore deny those allegations.
11.

SFFA is a coalition of prospective applicants and applicants to higher

education institutions who were denied admission to higher education institutions, their
parents, and other individuals who support the organization’s purpose and mission of
eliminating racial discrimination in higher education admissions. SFFA has members
throughout the country.
ANSWER TO PARAGRAPH 11: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 11 and
therefore deny those allegations.

13

12.

Edward Blum is the President of SFFA. See Exhibit A, Declaration of

Edward Blum (“Blum Dec.”) ¶ 2.
ANSWER TO PARAGRAPH 12: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 12 and
therefore deny those allegations.
13.

SFFA has at least one member (“Applicant”) who applied for and was

denied admission to UNC-Chapel Hill’s 2014 entering class. Blum Dec. ¶ 4.
ANSWER TO PARAGRAPH 13: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 13 and
therefore deny those allegations.
14.

Applicant is white. Blum Dec. ¶ 5.

ANSWER TO PARAGRAPH 14: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 14 and
therefore deny those allegations.
15.

Applicant had a weighted GPA of 4.4839 at a public high school that U.S.

News and World Report ranks as one of the top five high schools in North Carolina and
in the top 1 percent of all high schools nationwide. Blum Dec. ¶ 6.

14

ANSWER TO PARAGRAPH 15: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 15 and
therefore deny those allegations.
16.

Applicant achieved a score of 2180 on the SAT I (800 Reading (Perfect) +

710 Math + 670 Writing). Applicant achieved a perfect score of 800 for SAT II Physics
and a perfect score of 800 for SAT II Math. Applicant had a composite ACT score of 32.
Blum Dec. ¶ 7.
ANSWER TO PARAGRAPH 16: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 16 and
therefore deny those allegations.
17.

Applicant completed five Advanced Placement (“AP”) courses, scoring a

perfect “5” on all but one AP exam and scoring a “4” on the other. Applicant was named
an AP Scholar of Distinction. Blum Dec. ¶ 8.
ANSWER TO PARAGRAPH 17: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 17 and
therefore deny those allegations.
18.

While in high school, Applicant participated in numerous extracurricular

and volunteer activities. Among other things, Applicant was a member of the varsity

15

cross country team, a teaching associate for students in Latin II, completed a collegiate
computer programming course, and held a part-time job. Blum Dec. ¶ 9.
ANSWER TO PARAGRAPH 18: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 18 and
therefore deny those allegations.
19.

Applicant was denied the opportunity to compete for admission to UNC-

Chapel Hill on equal footing with other applicants on the basis of race or ethnicity due to
UNC-Chapel Hill’s discriminatory admissions policies. Blum Dec. ¶ 10.
ANSWER TO PARAGRAPH 19: Defendants deny the allegations in Paragraph
19.
20.

Applicant was accepted to and has enrolled at another university in North

Carolina. Applicant is ready, able, and intends to seek to transfer to the UNC- Chapel
Hill when it stops discriminating against applicants on the basis of race and ethnicity in
violation of the Fourteenth Amendment and federal civil rights laws. Blum Dec. ¶ 11.
ANSWER TO PARAGRAPH 20: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in the first half of
Paragraph 20 and therefore deny those allegations. Defendants deny the allegations in
Paragraph 20 that UNC-Chapel Hill unlawfully discriminates on the basis of race and
ethnicity in its undergraduate admission policy and processes.
16

21.

SFFA has members who are currently in high school and intend to apply

for admission to UNC-Chapel Hill (“Future Applicants”). Blum Dec. ¶ 12.
ANSWER TO PARAGRAPH 21: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 21 and
therefore deny those allegations.
22.

Future Applicants will be denied the opportunity to compete for admission

to UNC-Chapel Hill on equal footing with other applicants on the basis of race or
ethnicity due to UNC-Chapel Hill’s discriminatory admissions policies. As a result,
Future Applicants may be denied admission to UNC-Chapel Hill because of these
discriminatory policies. Blum Dec. ¶ 13.
ANSWER TO PARAGRAPH 22: Defendants deny the allegations in Paragraph
22.
23.

SFFA has members whose children intend to apply for admission to UNC-

Chapel Hill (“Parents”). Blum Dec. ¶ 14.
ANSWER TO PARAGRAPH 23: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 23 and
therefore deny those allegations.
24.

Parents’ children will be denied the opportunity to compete for admission

to UNC-Chapel Hill on equal footing with other applicants on the basis of race or
17

ethnicity due to UNC-Chapel Hill’s discriminatory admissions policies. As a result,
Parents’ children may be denied admission to UNC-Chapel Hill because of these
discriminatory policies. Blum Dec. ¶ 15.
ANSWER TO PARAGRAPH 24: Defendants deny the allegations in Paragraph
24 .
B.

Defendants
25.

The University of North Carolina is a public, multi-campus university

system authorized and governed by Article 9, Section 8 of the North Carolina
Constitution and Chapter 116 of the North Carolina Revised Statutes. It is composed of
the following constituent institutions: Appalachian State University, East Carolina
University, Elizabeth City State University, Fayetteville State University, North Carolina
Agricultural and Technical State University, North Carolina Central University, North
Carolina School of Science and Mathematics, North Carolina State University at Raleigh,
The University of North Carolina at Asheville, The University of North Carolina at
Chapel Hill, The University of North Carolina at Charlotte, The University of North
Carolina at Greensboro, The University of North Carolina at Pembroke, The University
of North Carolina at Wilmington, University of North Carolina School of the Arts,
Western Carolina University, and Winston-Salem State University.
ANSWER TO PARAGRAPH 25: Defendants admit the allegations in Paragraph
25.
18

26.

The University of North Carolina is funded by the State of North Carolina

and the Federal Government. As a recipient of direct and indirect financial assistance
from the Federal Government, the University of North Carolina, as well as all of its
programs and activities, including those of UNC-Chapel Hill, are subject to Title VI of
the Civil Rights Act of 1964, 42 U.S.C. § 2000d et. seq.
ANSWER TO PARAGRAPH 26: Defendants admit that the UNC System
receives funding from the State of North Carolina and the Federal Government. To the
extent the allegations in Paragraph 26 relate to UNC-Chapel Hill, Defendants admit that
UNC-Chapel Hill receives a portion of its funding from the State of North Carolina and
enrolls students who receive financial assistance from the Federal Government. The
remaining allegations in Paragraph 26 otherwise contain conclusions of law to which no
response is required.
27.

The University of North Carolina Board of Governors is the policy- making

body charged with the general determination, control, supervision, management, and
governance of all affairs of the University of North Carolina’s constituent institutions,
including UNC-Chapel Hill. The Board of Governors elects the President of the
University of North Carolina, who administers the university.
ANSWER TO PARAGRAPH 27: Defendants admit the allegations in Paragraph
27.

19

28.

John C. Fennebresque, W. Louis Bissette, Jr., Joan Templeton Perry, M.D.,

Roger Aiken, Hannah D. Gage, Ann B. Goodnight, H. Frank Grainger, Peter D. Hans,
Thomas J. Harrelson, Henry W. Hinton, James L. Holmes, Jr., Rodney E. Hood, W.
Marty Kotis III, G. Leroy Lail, Scott Lampe, Steven B. Long, Joan G. MacNeill, Mary
Ann Maxwell, W. Edwin McMahan, W. G. Champion Mitchell, Hari H. Nath, Anna
Spangler Nelson, Alex Parker, R. Doyle Parrish, Therence O. Pickett, David M. Powers,
Robert S. Rippy, Harry Leo Smith, Jr., J. Craig Souza, George A. Sywassink, Richard F.
Taylor, Raiford Trask III, Phillip D. Walker, and Laura I. Wiley are the voting members
of the University of North Carolina Board of Governors. Each member is elected by the
North Carolina General Assembly for a four-year term. The members of the Board of
Governors are sued in their official capacity.
ANSWER TO PARAGRAPH 28: Defendants admit the allegations in Paragraph
28.
29.

Thomas W. Ross is the President of the University of North Carolina. The

President is the chief administrative and executive officer of the University of North
Carolina. The President has complete authority to manage the affairs and execute the
policies of the University of North Carolina and its constituent institutions, subject to the
direction and control of the Board of Governors and the provisions of The Code of the
Board of Governors of The University of North Carolina. He is sued in his official
capacity.

20

ANSWER TO PARAGRAPH 29: Defendants admit the allegations in Paragraph
29.
30.

UNC-Chapel Hill is a public research university located in Chapel Hill,

North Carolina. UNC-Chapel Hill is a constituent institution of the University of North
Carolina system.
ANSWER TO PARAGRAPH 30: Defendants admit the allegations in Paragraph
30.
31.

Carol L. Folt is the Chancellor of UNC-Chapel Hill. The Chancellor

exercises complete executive authority over UNC-Chapel Hill, subject to the direction of
the President. The Chancellor is responsible for carrying out policies of the Board of
Governors and of the Board of Trustees of UNC-Chapel Hill. She is sued in her official
capacity.
ANSWER TO PARAGRAPH 31: Defendants admit the allegations in Paragraph
31.
32.

The UNC-Chapel Hill Board of Trustees is charged with promoting the

sound development of its institution within the functions prescribed for it and serving as
advisor to the Board of Governors and to the Chancellor of the University of North
Carolina at Chapel Hill. The Board of Trustees also has other powers and duties that are
defined and delegated by the Board of Governors.
21

ANSWER TO PARAGRAPH 32: All claims against the UNC-Chapel Hill
Board of Trustees have been dismissed pursuant to the aforementioned filing of the Joint
Stipulation of Dismissal on March 20, 2015 and the UNC-Chapel Hill Board of Trustees
is not a party to this action. To the extent the allegations in Paragraph 32 require a
response, they are admitted.
33.

W. Lowry Caudill, Alston Gardner, Sallie Shuping-Russell, Jefferson W.

Brown, Phillip L. Clay, Haywood D. Cochrane, Donal Williams Curtis, Charles G.
Duckett, Peter T. Grauer, Kelly Matthews Hopkins, Steven Lerner, Dwight D. Stone, and
Andrew Henry Powell are members of the UNC-Chapel Hill Board of Trustees. They are
sued in their official capacity.
ANSWER TO PARAGRAPH 33: All claims against the individual members of
the Board of Trustees have been dismissed pursuant to the aforementioned filing of the
Joint Stipulation of Dismissal on March 20, 2015 and the individual members of the
UNC-Chapel Hill Board of Trustees are not parties to this action. To the extent the
allegations in Paragraph 33 require a response, they are admitted.
34.

James W. Dean Jr. is the Executive Vice Chancellor and Provost at UNC-

Chapel Hill. The Provost leads UNC-Chapel Hill in its academic planning and in the
setting of academic values, policies, and practices. He is responsible for providing
guidance to the dean of each school, is the Chair of the Deans’ Council, and is

22

accountable for regularly evaluating the deans, vice provosts, and selected vice
chancellors, as well as candidates for those positions. He is sued in his official capacity.
ANSWER TO PARAGRAPH 34: Defendants admit the allegations in Paragraph
34.
35.

Stephen M. Farmer is the Vice Provost for Enrollment and Undergraduate

Admissions at UNC-Chapel Hill. The Vice Provost directs the selection and recruitment
of the undergraduate student body at UNC-Chapel Hill. He is sued in his official
capacity.
ANSWER TO PARAGRAPH 35: Defendants admit the allegations in Paragraph

35.

23

IV.

UNC-CHAPEL HILL’S UNDERGRADUATE ADMISSIONS POLICIES.

A.

UNC-Chapel Hill’s Admissions Process

1.

The Application
36.

During an admissions cycle, the UNC-Chapel Hill Admissions Committee

reviews each applicant’s admissions materials. Those materials include: (1) the Common
Application; (2) two essays; (3) official high school transcript; (4) official standardized
test scores; (5) a counselor statement; and (6) one teacher recommendation.
ANSWER TO PARAGRAPH 36: Defendants admit, as alleged in the first
sentence of Paragraph 36, that UNC-Chapel Hill conducts an individualized review of
each applicant’s admissions materials, including but not limited to the materials listed in
Paragraph 36. Defendants otherwise deny the allegations in the remainder of Paragraph
36.
37.

UNC-Chapel Hill gathers information about the race and ethnicity of its

applicants through numerous ways.
ANSWER TO PARAGRAPH 37: Defendants deny the allegations in Paragraph
37.
38.

An applicant filling out a Common Application has the option of disclosing

his or her racial identity.

24

ANSWER TO PARAGRAPH 38: Defendants admit that an applicant filling out
a Common Application has the option of disclosing his or her racial identity. The
Common Application otherwise speaks for itself and no further response is necessary.
39.

The Common Application asks two questions to identify an applicant’s race

and ethnicity: (1) “Are you Hispanic/Latino?” and (2) “Regardless of your answer to the
prior question, please indicate how you identify yourself. (Check one or more and
describe your background.) American Indian or Alaska Native (including all Original
Peoples of the Americas); Asian (including Indian subcontinent and Philippines); Black
or African American (including Africa and Caribbean); Native Hawaiian or Other Pacific
Islander (Original People); or White (including Middle Eastern).”
ANSWER TO PARAGRAPH 39: Defendants deny the allegations in Paragraph
39 to the extent those allegations characterize or base claims upon the content of the
Common Application. The Common Application otherwise speaks for itself.
40.

The Common Application requires applicants to identify their parents’ first

and last name, the parents’ former last names, and their country of birth.
ANSWER TO PARAGRAPH 40: Defendants deny the allegations in Paragraph
40 to the extent those allegations characterize or base claims upon the content of the
Common Application. The Common Application otherwise speaks for itself.

25

41.

UNC-Chapel Hill accepts transfer students who have been out of high

school at least one year and have completed any college coursework. UNC-Chapel Hill
evaluates applicants for transfer in the same purportedly “holistic” manner it evaluates all
other applicants. UNC-Chapel Hill uses race or ethnicity as a factor in evaluating
transfer applicants.
ANSWER TO PARAGRAPH 41: Defendants admit that UNC-Chapel Hill
accepts transfer students, including but not limited to those described in the first sentence
of Paragraph 41. Defendants otherwise deny the allegations in Paragraph 41.
2.

The Review Process
42.

UNC-Chapel Hill has two application deadlines for admission to the

entering class. The deadline for early admission is in October. The deadline for regular
admission is in January. Early admission applicants are notified of UNC-Chapel Hill’s
decision by the end of January. Applicants for regular admission are notified of UNCChapel Hill’s decision by the end of March. According to UNC- Chapel Hill, the
evaluation process for both sets of candidates for admission is the same.

26

ANSWER TO PARAGRAPH 42: Defendants admit, as alleged in Paragraph 42,
that UNC-Chapel Hill has two deadlines for first-year undergraduate admissions—an
early action deadline in October and a second admission deadline in January. Defendants
admit the remaining allegations in Paragraph 42, with the exception of noting that
admissions decisions for early action applicants may occur after January in certain
circumstances and admissions decisions for the second admissions deadline may occur
after March in certain circumstances.
43.

Each application is randomly assigned to an admissions officer who serves

as the “first reader.” That officer reads the application and enters a recommended
decision, which could be to admit, deny, defer, or waitlist the applicant. That first reader
also enters comments in support of his or her recommended decision.
ANSWER TO PARAGRAPH 43: Defendants admit, as and to the extent alleged
in Paragraph 43, that each undergraduate application for admission to UNC-Chapel Hill
is randomly assigned to an admissions officer who serves as a first reader and who, in the
exercise of his or her discretion, is able to enter comments in support of the
recommended admissions decision. Defendants otherwise deny the allegations in
Paragraph 43.
44.

The application is then assigned to a “second reader” who repeats the

process. If the two readers agree and either the applicant is a North Carolina resident or
the applicant is from out of state and the recommendation is to deny the admission, the
27

decision is entered as a tentative decision. If the two readers do not agree or if the
applicant is from out of state and the recommendation is to admit, the application is
reviewed by the Admissions Director, the Admissions Deputy Director, or a
subcommittee of admissions officers, and a tentative decision is then entered.
ANSWER TO PARAGRAPH 44: Defendants deny the allegations in Paragraph
44.
45.

UNC-Chapel Hill claims to base its admissions decision on a “holistic”

review of each application using more than 40 criteria, which are grouped broadly into
eight categories: (a) academic performance (such as grade point average, rank in class,
and trends in grades); (b) academic program (such as the rigor or courses taken); (c)
standardized testing (including SAT scores); (d) extracurricular activity (such as work
history and demonstrated leadership); (e) special talent (including talent in athletics and
music); (f) essay (including persuasiveness, evidence of self-knowledge, and unique
perspective); (g) background (including socio-economic status, legacy status, race, and
national origin); and (h) personal (including curiosity, integrity, and history of
overcoming obstacles).
ANSWER TO PARAGRAPH 45: Defendants admit the allegations in Paragraph
45.

28

46.

UNC-Chapel Hill denies using race as a “tie breaker” to fill the final few

places in the entering freshman class. UNC-Chapel Hill instead claims to use race to
pursue the “critical mass” diversity interest.
ANSWER TO PARAGRAPH 46: Defendants admit the allegations in the first
sentence of Paragraph 46. Defendants deny the remainder of the allegations in Paragraph
46.
47.

After tentative decisions have been entered for all candidates, UNC- Chapel

Hill uses a statistical model to predict the number of entering students based on the
applications that have been tentatively marked for admission.
ANSWER TO PARAGRAPH 47: Defendants deny the allegations in Paragraph
47.
48.

UNC-Chapel Hill then conducts what it terms an “end-of-season” review,

which it refers to as the school group review or the SGR process. During the SGR
process, a report is run showing every applicant from the same high school, with
applicants ordered from highest to lowest grade point average. UNC-Chapel Hill claims
to use the SGR process for, among other reasons, “quality control” purposes and in order
to align the predicted enrollment to the number of available spaces for the entering class.

29

ANSWER TO PARAGRAPH 48: Defendants admit, as alleged in the first
sentence of Paragraph 48, that UNC-Chapel Hill conducts a School Group Review
processes. Defendants otherwise deny the allegations in Paragraph 48.
49.

The Admissions Director is aware of the projected racial composition of the

tentatively admitted students during the SGR process. The reports used during the SGR
process include information regarding each candidate’s race/ethnicity. Those reports,
however, do not include information regarding non-race factors such as first generation
college status or eligibility for a fee waiver.
ANSWER TO PARAGRAPH 49: Defendants deny the allegations in Paragraph
49.
50.

After the SGR process is completed, applicants receive notification of

acceptance, rejection, or placement on the waiting list. Those applicants who accept a
position on the waiting list will be reconsidered for any spaces that are available after the
enrollment deadline for admitted students.

30

ANSWER TO PARAGRAPH 50: Defendants admit, as alleged in Paragraph 50,

that the admissions process entails an SGR review component. Defendants state that the
SGR reviews occur twice during the admissions decision-making process. Applicants
may be offered a place on a waiting list only after the second SGR review, however, and
only those who accept a place on the waiting list will be reconsidered for any spaces that
are available. Subject to the same qualification, Defendants otherwise admit the
allegations in the second sentence of Paragraph 50.
V.

UNC-CHAPEL HILL IS NOT USING RACE MERELY AS A “PLUS”
FACTOR.
51.

Although UNC-Chapel Hill claims to use an applicant’s race and ethnicity

only as one of many factors within its “holistic” system, statistical and other evidence
establishes that race is a dominant factor in admissions decisions to the detriment of
white and Asian-American applicants.
ANSWER TO PARAGRAPH 51: Defendants deny the allegations in Paragraph
51.
52.

During the admissions process, UNC-Chapel Hill admissions officers are

aware of the race of every applicant for admissions and that information is included on
the first page of each applicant’s admissions folder. Moreover, race is the only nonacademic factor that is known about an applicant during the SGR process.
ANSWER TO PARAGRAPH 52: Defendants deny the allegations in Paragraph 52.
31

53.

Table A shows admission rates, by race, for a portion of the overall range

of academic indices generated by UNC in 2006.
Table A
Academic Index for All Admitted Students
(2006)
Index Range
Admissions Rate for:
White/Caucasians

Asian Americans

2.4-2.499

Black/African
American
19.3%

3.8%

0.9%

2.5-2.599

30.5%

3.2%

0.9%

2.6-2.699

44.6%

3.7%

2.5%

2.7-2.799

59.2%

12.8%

8.5%

2.8-2.899

65.0%

28.1%

25.6%

2.9-2.999

89.9%

37.2%

26.4%

3.0-3.099

89.3%

44.3%

30.7%

3.1-3.199

100.0%

42.2%

43.1%

3.2-3.299

98.0%

47.5%

55.4%

ANSWER TO PARAGRAPH 53: Defendants lack knowledge or information
sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 53 and
therefore deny those allegations.

32

54.

These statistics show that UNC-Chapel Hill does not use race simply as a

“plus” factor. For African-American applicants with an academic index above 3.1, race
is a dispositive factor essentially guaranteeing admission. For Asian-American
applicants with an academic index below 2.6, on the other hand, race is a dispositive
factor virtually guaranteeing rejection.
ANSWER TO PARAGRAPH 54: Defendants deny the allegations in Paragraph
54.
55.

Table B shows the average high-school GPA and SAT scores by racial

category for students admitted to UNC-Chapel Hill in 2012.
Table B
Average GPA and SAT for All Admitted Students (2012)
Admitted

GPA

SAT

American Indian or
Alaska Native

103

4.38

1300

African American

618

4.32

1229

Asian/Asian American

1018

4.63

1431

Hispanic

415

4.51

1319

Pacific Islander

6

4.51

1393

White

3616

4.56

1360

Not Reporting

123

4.46

1344

33

ANSWER TO PARAGRAPH 55: Defendants admit the allegations in Paragraph
55.
56.

These statistics confirm that UNC-Chapel Hill continues to use race as far

more than a “plus” factor in admissions. In particular, the statistics show a massive
academic achievement gap between non-preferred admitted students and
underrepresented minorities. The average high-school GPA and SAT scores for nonpreferred students (Asian American + white) are 4.57 and 1375. The average high school
GPA and SAT scores for underrepresented minorities (African American + Hispanic +
American Indian/Alaska Native) are 4.40 and 1269.
ANSWER TO PARAGRAPH 56: Defendants deny the allegations in Paragraph
56.
57.

The academic achievement differences are even greater between specific

racial groups. For example, there is over a 200-point SAT gap and a 0.31 high-school
GPA gap between Asian Americans and African Americans admitted to UNC-Chapel
Hill.
ANSWER TO PARAGRAPH 57: Defendants deny the allegations in Paragraph
57.
58.

UNC-Chapel Hill’s admissions decisions cannot be attributed to

underrepresented minorities having better non-racial, non-academic qualifications than
34

other students. See, e.g., Esteben Aucejo, Hanming Fang, and Ken Spenner, “Does
Affirmative Action Lead to Mismatch? A New Test and Evidence,” 2 Quantitative
Economics 303 (2011). That study found no racial advantage for underrepresented
minority applicants in levels of personal achievement.
ANSWER TO PARAGRAPH 58: Defendants deny the allegations in Paragraph
58. Defendants further state that to the extent the allegations set forth in Paragraph 58 are
based upon the referenced document, the document speaks for itself.
59.

Studies also have shown that high achieving Asian-American students are

equally, if not more, qualified than other racial groups with regard to non- academic
criteria. At the University of California, Los Angeles (UCLA), over several years,
undergraduate admissions readers assigned each applicant three types of scores:
“academic achievement” (principally high school grades, AP courses, and standardized
test scores); “life challenges” (mainly socioeconomic background); and “personal
achievement” (such as leadership, musical ability, and community service). These three
scores jointly determined virtually all admissions decisions. See Peter Arcidiacono,
Thomas Espenshade, Stacy Hawkins, and Richard Sander, A Conversation on the Nature,
Effects, and Future of Affirmative Action in Higher Education Admissions, Pennsylvania
Journal of Constitutional Law (Fall 2014).

35

ANSWER TO PARAGRAPH 59: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 59,
including allegations concerning colleges or universities other than UNC-Chapel Hill,
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 59 are based on the referenced document, the document
speaks for itself.
60.

The data cover over 100,000 undergraduate applicants to UCLA over three

years and show absolutely no correlation between race and “personal achievement.”
Rather, the data show that the only strong predictor of personal-achievement scores is
academic achievement; applicants with high test scores and grades tended to have
personal achievement scores that were about one standard deviation higher than
applicants with low test scores and grades.
ANSWER TO PARAGRAPH 60: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 60,
including allegations concerning UCLA undergraduate admissions, and therefore deny
those allegations. Defendants further state that to the extent the allegations set forth in
Paragraph 60 are based upon the document referenced in Paragraph 59, the document
speaks for itself.

36

61.

There is no evidence that Asian Americans applying to UCLA have

personal achievement credentials that Asian Americans applying to UNC-Chapel Hill
uniformly lack. Rather, all available evidence points in the opposite direction.
ANSWER TO PARAGRAPH 61: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 61,
including allegations concerning UCLA undergraduate admissions, and therefore deny
those allegations. Defendants further state that to the extent the allegations set forth in
Paragraph 61 are based upon the document referenced in Paragraph 59, the document
speaks for itself.
62.

Moreover, notwithstanding UNC-Chapel Hill’s public relations emphasis

on non-academic factors in reviewing applications, academic performance (except when
it comes to underrepresented minorities) is the principal criteria for admission.
ANSWER TO PARAGRAPH 62: Defendants deny the allegations in Paragraph
62.
63.

Academic analyses of dozens of application processes at colleges and law

schools around the country demonstrate that highly competitive schools, such as UNCChapel Hill, give far more weight to academic achievement and preparation than to other
types of accomplishment and activity (with the exception of racial preferences). See
Richard Sander, Why Strict Scrutiny Requires Transparency: The Practical Effects of

37

Bakke, Gratz, and Grutter (2011). In general, academic factors alone explain about 80
percent of admissions decisions at selective schools.
ANSWER TO PARAGRAPH 63: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 63 and
therefore deny those allegations. Defendants further state that to the extent the allegations
set forth in Paragraph 63 are based upon the referenced document, the document speaks
for itself.
64.

Accordingly, UNC-Chapel Hill is not using race merely as a “plus” factor

in admissions decisions. UNC-Chapel Hill’s admissions decisions are attributable to a
sizable racial preference for underrepresented minorities.
ANSWER TO PARAGRAPH 64: Defendants deny the allegations in Paragraph
64.

38

VI.

UNC-CHAPEL HILL HAS AVAILABLE RACE-NEUTRAL
ALTERNATIVES THAT CAN ACHIEVE STUDENT BODY DIVERSITY.
65.

UNC-Chapel Hill has a host of race-neutral alternatives that can achieve

student body diversity without the use of racial classifications, including but not limited
to: (a) increased utilization of non-race-based preferences; (b) increased use of financial
aid, scholarships, and recruitment to attract and enroll minority applicants; and (c)
elimination of admissions policies and practices that operate to the disadvantage of
minority applicants. Furthermore, eliminating racial preferences at UNC-Chapel will
alleviate the substantial harm these discriminatory policies cause to those minority
applicants who receive such admissions preference, the North Carolina community, and
society as a whole.
ANSWER TO PARAGRAPH 65: Defendants deny the allegations in Paragraph
65.
A.

UNC-Chapel Hill Can Achieve Student Body Diversity Without Using Race
As A Factor In Admissions Decisions By Making Greater Use Of Non-Racial
Preferences.
66.

Colleges and universities that have eliminated race-based admissions have

maintained or increased their student body diversity by placing greater emphasis on
socioeconomic factors, which often strongly correlate with an applicant’s race but are not
exclusively reserved for applicants of a particular race or ethnicity. Using socioeconomic
preferences thus increases racial diversity and achieves the broader diversity that UNC-

39

Chapel Hill claims to seek by opening the door of opportunity for poor students of all
races.
ANSWER TO PARAGRAPH 66: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in the first sentence
of Paragraph 66 and therefore deny those allegations. Defendants deny the allegations in
the second sentence of Paragraph 66.
67.

In a recent study of ten leading public universities that ended race-based

preferences, researchers found that seven of these schools maintained or increased their
enrollment of African-American and Hispanic students by adopting strategies that target
socioeconomic inequality. See Halley Potter, Transitioning to Race- Neutral Admissions:
An Overview of Experiences in States Where Affirmative Action Has Been Banned, The
Future of Affirmative Action (2014).
ANSWER TO PARAGRAPH 67: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 67 and
therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 67 are based upon the referenced document, the
document speaks for itself.
68.

For example, the University of Colorado has devised an admissions

formula that gives a significant preference to students from socioeconomically

40

disadvantaged backgrounds. This refined formula takes into consideration numerous
socioeconomic factors, including single-parent status, parents’ education level, family
income, native language, the number of dependents in the family, whether the applicant
attended a rural high school, the percentage of students from the applicant’s high school
eligible for free or reduced-price lunch, the school-wide student-to- teacher ratio, and the
size of the twelfth-grade class.
ANSWER TO PARAGRAPH 68: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 68 and
therefore deny those allegations.
69.

Under this admissions program, the University of Colorado found not only

that the socioeconomic diversity of its incoming class increased substantially, but that
racial and ethnic diversity increased as well. African-American and Hispanic acceptance
rates to the University of Colorado increased from 56 percent under race- based
admissions to 65 percent under class-based admissions. See Matthew N. Gaertner,
Advancing College Access with Class-Based Affirmative Action, The Future of
Affirmative Action (2014).
ANSWER TO PARAGRAPH 69: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 69 and
therefore deny those allegations. Defendants further state that to the extent the

41

allegations set forth in Paragraph 69 are based upon the referenced document, the
document speaks for itself.
70.

Recently, a national simulation was conducted to determine whether the use

of socioeconomic preferences could achieve student body diversity without the use of
racial preferences at elite universities. See Anthony P. Carnevale, Stephen J. Rose, Jeff
Strohl, Achieving Racial and Economic Diversity with Race-Blind Admissions Policy,
The Future of Affirmative Action (2014). The study simulated various admissions
models at the top-rated 193 colleges and universities “because the dialogue about
affirmative action often implies that it is access to these schools and the opportunities
they provide in business, social and career advancement that truly matters.” The study
examined, among other things, the effect of substituting socioeconomic preference for
race-based preferences at America’s elite college and universities using test scores and
high-school grades as measures of merit.
ANSWER TO PARAGRAPH 70: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 70 and
therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 70 are based upon the referenced study, the study
speaks for itself.
71.

The national simulation ultimately found that “it is possible to achieve both

racial and economic diversity in selective colleges without using race per se as an
42

admissions criterion” and, importantly, that it could be achieved consistent with the
understanding “that affirmative action models ought to promote racial diversity as an
educational benefit instead of promoting racial diversity for its own sake.”
ANSWER TO PARAGRAPH 71: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 71 and
therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 71 are based upon the study referenced in Paragraph 70,
the study speaks for itself.
72.

Another study found that increased focus on parental education and

wealth—as opposed to income—as a measure of socioeconomic status also can help
achieve student body diversity without the use of racial preferences. See Dalton Conley,
The Why, What, and How of Class-Based Admissions Policy, The Future of Affirmative
Action (2014). The study found that “the most important factor in predicting individual
academic success is the education of a parent” and the “economic factor” that mattered
most was “parental net worth (that is, wealth) and not income.” Indeed, “wealth
conceptually captures the legacy of historical inequalities of opportunity better than
aspects of class that cannot be literally transferred directly from one generation to the
next by signing a check (or a deed or a will).” While African Americans make on the
order of 60 to 70 percent of what whites make in income, the median African American
family wealth is just 10 percent of white family wealth.

43

ANSWER TO PARAGRAPH 72: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 72 and
therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 72 are based upon the referenced study, the study
speaks for itself.
73.

Affording a community-based preference is another means of achieving

student body diversity by admitting more socioeconomically disadvantaged students. See
Sheryll Cashin, Place not Race: A New Vision of Opportunity in America (2014).
African Americans and Hispanics are much more likely to live in neighborhoods with
concentrated poverty than whites. See John R. Logan, Separate and Unequal: The
Neighborhood Gap for Blacks, Hispanics, and Asians in Metropolitan America (2011),
Table 2.
ANSWER TO PARAGRAPH 73: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 73 and
therefore deny those allegations. Defendants further state that to the extent the allegations
set forth in Paragraph 73 are based upon the referenced study, the study speaks for itself.
74.

Universities have used this community-based homogeneity to promote

racial and ethnic diversity through race-neutral means. For example, Texas, California,
and Florida have adopted “percent plans” that guarantee admission to state universities

44

for top graduates (based on grades) from each high school in the state. These percentage
plans have been successful in promoting community, socioeconomic, and racial diversity.
ANSWER TO PARAGRAPH 74: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 74 and
therefore deny those allegations.
75.

In addition to statewide percentage plans, a university can achieve student

body diversity by granting a preference within their existing admissions framework
utilizing other community-based metrics, such as an applicant’s zip code. See Danielle
Allen, Talent is Everywhere: Using Zip Codes and Merit to Enhance Diversity, The
Future of Affirmative Action (2014).
ANSWER TO PARAGRAPH 75: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 75 and
therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 75 are based upon the referenced document, the
document speaks for itself.
76.

Studies show that students admitted based on socioeconomic as opposed to

racial criteria regularly outperform all other admitted students. These students drop out at
lower rates, graduate in shorter time periods, and receive better grades.

45

ANSWER TO PARAGRAPH 76: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 76 and
therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 76 are based upon certain studies, those studies speak
for themselves.
77.

UNC-Chapel Hill has conducted studies proving that it can use race-neutral

alternatives to achieve student body diversity without sacrificing its academic standards.
ANSWER TO PARAGRAPH 77: Defendants deny the allegations in Paragraph
77.
78.

In 2012, after the U.S. Supreme Court granted certiorari in Fisher v.

University of Texas at Austin, the UNC-Chapel Hill Admissions Office conducted a study
to analyze the projected composition of its incoming class if it adopted an admissions
plan similar to the one used by the University of Texas at Austin. Under Texas law, all
students in the top ten percent of their class at high schools in Texas that comply with
certain standards are granted automatic admission to any public state college, including
the University of Texas at Austin.

46

ANSWER TO PARAGRAPH 78: Defendants admit the allegations in first
sentence of Paragraph 78. Defendants lack knowledge or information sufficient to form a
belief about the truth or falsity of the remaining allegations in Paragraph 78 and therefore
deny those allegations.
79.

UNC-Chapel Hill submitted the results of its study to the U.S. Department

of Education as part of the agency’s investigation into UNC-Chapel Hill’s admissions
practices and to the U.S. Supreme Court through its amicus brief in the Fisher case.
ANSWER TO PARAGRAPH 79: The Defendants admit the allegations in
Paragraph 79.
80.

According to UNC-Chapel Hill, eliminating racial preferences and

replacing them with a top-ten-percent plan similar to the University of Texas at Austin’s
would increase the percentage of nonwhite and underrepresented students enrolling at
UNC-Chapel Hill from 15 percent to 16 percent.
ANSWER TO PARAGRAPH 80: Defendants state that, to the extent the
allegations set forth in Paragraph 80 are based upon the study UNC-Chapel Hill
submitted to the U.S. Department of Education and to the Supreme Court of the United
States through its amicus brief in the Fisher case, the study speaks for itself. Defendants
otherwise deny allegations in Paragraph 80.

47

81.

Adopting this plan also likely would increase the average high-school GPA

of UNC-Chapel Hill’s admitted students because the proportion of the admitted pool
coming from the top ten percent of high school classes would by definition increase.
ANSWER TO PARAGRAPH 81: Defendants deny the allegations in Paragraph
81.
82.

In other words, UNC-Chapel Hill determined that it could adopt a race-

neutral admissions policy that increases both the racial diversity of the student body and
the likely average GPA of the entering freshman class.
ANSWER TO PARAGRAPH 82: Defendants deny the allegations in Paragraph
82.
83.

Nevertheless, UNC-Chapel Hill informed the Department of Education and

the Supreme Court that it would not implement this admissions plan because it would
yield “a significantly less satisfactory admissions system for UNC in most respects.”
ANSWER TO PARAGRAPH 83: Defendants admit, as alleged in Paragraph 83,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education and to the
Supreme Court of the United States through its amicus brief in Fisher case. The UNCChapel Hill study otherwise speaks for itself and therefore Defendants otherwise deny the
allegations in Paragraph 83.

48

84.

UNC-Chapel Hill gave three reasons for why the plan was unacceptable: (a)

the average entering SATs of the incoming class would decline by 56 points, from 1317
to 1262; (b) predicted first-year GPA averages would drop by 0.10 points, from 3.26 to
3.16; and (c) applicants whose grades were not in the top ten percent of their class would
see their chances of admission reduced from 31 percent (under the present system) to 10
percent (under a top-ten-percent plan).
ANSWER TO PARAGRAPH 84: Defendants admit, as alleged in Paragraph 84,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education and to the
Supreme Court of the United States through its amicus brief in Fisher case. The UNCChapel Hill study otherwise speaks for itself and therefore Defendants otherwise deny the
allegations in Paragraph 84.
85.

None of these pretextual reasons UNC-Chapel Hill gave for retaining racial

preferences instead of adopting this workable, race-neutral alternative can survive
judicial review under strict scrutiny.
ANSWER TO PARAGRAPH 85: Defendants deny the allegations in Paragraph
85.
86.

First, UNC-Chapel Hill is well aware that an average decline of 56 SAT

points (from the 91st percentile to the 86th percentile) will have little to no effect on the
academic quality of the student body.

49

ANSWER TO PARAGRAPH 86: Defendants deny the allegations in Paragraph
86.
87.

In its response to the Department of Education, UNC-Chapel Hill sought to

explain why admitted African Americans had a far lower average SAT score than
admitted Asian-American students (1229 and 1431, respectively) by arguing that the 202point gap was minimal and, in any event, irrelevant.
ANSWER TO PARAGRAPH 87: Defendants admit, as alleged in Paragraph 87,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 87.
88.

To begin, UNC-Chapel Hill claimed that any SAT gap less than 120 points

was meaningless because this gap was within the test’s margin of error. UNC- Chapel
Hill claimed that the “standard errors of difference (‘SED’) for the SAT is roughly 40
points on each section; this means that, for two scores on either section to represent what
the College Board describes as ‘real’ differences in the attributes measure by that section,
the two scores must be different by at least 60 points, or 1.5 times the SED.”

50

ANSWER TO PARAGRAPH 88: Defendants admit, as alleged in Paragraph 88,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 88.
89.

Thus, UNC-Chapel Hill explained, “a student who scores 620 on Critical

Reading and 600 on Math [1220 total] displays no ‘real’ or measured difference from a
student who scores 670 and 650, respectively [1320 total].”
ANSWER TO PARAGRAPH 89: Defendants admit, as alleged in Paragraph 89,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 89.
90.

While UNC-Chapel Hill acknowledged that “the differences in mean SAT

scores between underrepresented students and Asian or white students are statistically
significant” (as the gap was greater than 120 points), UNC-Chapel Hill contended that the
SAT was a meaningless predictor of future success.
ANSWER TO PARAGRAPH 90: Defendants admit, as alleged in Paragraph 90,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 90.

51

91.

UNC-Chapel Hill argued that “[w]hatever the ‘real’ difference in SAT

scores between underrepresented and other students, the significance of that difference is
subject to question. If the SAT is a relatively crude predictor of academic performance in
general, it is even less reliable at predicting the performance of underrepresented students
in particular, even when the impact of socioeconomic status is controlled for.”
ANSWER TO PARAGRAPH 91: Defendants admit, as alleged in Paragraph 91,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore the Defendants
otherwise deny the allegations in Paragraph 91.
92.

As an example, UNC-Chapel Hill argued that its “Covenant Scholars,”

which are students who may receive significant financial aid if their parents’ adjusted
gross income does not exceed 200 percent of federal poverty guidelines (e.g., $37,060 for
a family of three), fully succeed at UNC despite having SAT scores 81 points lower than
average.
ANSWER TO PARAGRAPH 92: Defendants admit, as alleged in Paragraph 92,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 92.

52

93.

According to UNC-Chapel Hill, Covenant Scholars “earned SAT scores

that averaged 81 points below the class average of 1293,” but that “if past experience
holds, more than 97 percent of these students will return for the second year at
Carolina—a rate equal to that of their classmates with higher incomes and SAT scores.”
ANSWER TO PARAGRAPH 93: Defendants admit, as alleged in Paragraph 93,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 93.
94.

A 56-point decline in average SAT scores under a top-ten percent plan is

especially modest in light of UNC-Chapel Hill’s belief that socioeconomically
disadvantaged students may have more potential than economically privileged students
with similar test scores. Because American high schools tend to be economically as well
as racially stratified, a top-ten-percent plan in North Carolina is likely to be accompanied
by an increase in socioeconomic diversity at UNC-Chapel Hill.
ANSWER TO PARAGRAPH 94: Defendants deny the allegations in Paragraph
94.
95.

Economic diversity increased, for example, after the adoption of UT

Austin’s top 10 percent plan. In 2013, 21 percent of incoming students admitted through
the Texas top 10 percent plan were from families making less than $40,000 compared

53

with 6 percent of those admitted under discretionary admissions. See William Powers,
The University of Texas at Austin: Report to the Governor, the Lieutenant Governor, and
the Speaker of the House of Representatives on the Implementation of SB 175, at 30
(2013).
ANSWER TO PARAGRAPH 95: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 95 and
therefore deny those allegations.
96.

In discussions with the Department of Education, UNC-Chapel Hill

emphasized that “assessment of disadvantage must … inform the University’s
interpretation of the candidate’s SAT scores and other academic indicators.” Given “the
strong correlation between SAT scores and socioeconomic status,” UNC-Chapel Hill
contended that, “schools, including [UNC-Chapel Hill], have chosen to view SAT scores
in light of the student’s socioeconomic circumstances, as a way of tempering the test’s
tendency to measure privilege rather than preparedness.”
ANSWER TO PARAGRAPH 96: Defendants admit, as alleged in Paragraph 96,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 96.

54

97.

More broadly, UNC-Chapel Hill stressed that “average [SAT] scores across

groups, as well as the scores of individual students, should be interpreted with great
caution, and always in conjunction with other indicators that speak to students’ academic
preparation.” To that end, UNC-Chapel Hill repeatedly emphasized that “in evaluating
candidates for admission, we do not seek to maximize the average SAT score.”
ANSWER TO PARAGRAPH 97: Defendants admit, as alleged in Paragraph 97,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 97.
98.

Given UNC-Chapel Hill’s position that a 100-point SAT gap was within

the test’s margin of error and thus statistically insignificant, and that a 200-point gap
should be “interpreted with great caution” since the SAT is only a “crude predictor of
academic success,” it is disingenuous in the extreme for UNC-Chapel Hill to claim that it
must use race in its admissions in order to prevent a 56-point decline in its average SAT
score that would be caused through race-neutral admissions.
ANSWER TO PARAGRAPH 98: Defendants deny the allegations in Paragraph
98.
99.

Second, UNC-Chapel Hill’s professed fear of a 0.10 drop in predicted first-

year GPA is pretext for continued racial discrimination. Here too, UNC-Chapel Hill’s

55

submission to the Department of Education belies its newfound concern on predicted
first-year GPA.
ANSWER TO PARAGRAPH 99: Defendants admit, as alleged in Paragraph 99,
that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 99.
100.

Before the Department of Education, UNC-Chapel Hill stressed that “in

evaluating candidates for admission, we do not seek to maximize ... the average eventual
GPA of the entering class.”
ANSWER TO PARAGRAPH 100: Defendants admit, as alleged in Paragraph
100, that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 100.
101.

In addition, in attempting to explain the difference in average high- school

GPAs for admitted students (ranging from 4.31 for American Indians to 4.65 for whites)
UNC-Chapel Hill argued that such differences were of “questionable statistical
significance.” In particular, UNC-Chapel Hill argued that the 0.11 GPA difference
between whites/Asians and African Americans/Hispanics/Native Americans was

56

insignificant because a 0.11 GPA differential “is the equivalent of one letter-grade
difference in each of two classes over the course of a four-year high school career.”
ANSWER TO PARAGRAPH 101: Defendants state that to the extent the
allegations set forth in Paragraph 101 are based upon UNC-Chapel Hill’s written
submission to the U.S. Department of Education, the document speaks for itself and
therefore Defendants otherwise deny the allegations in Paragraph 101.
102.

Moreover, UNC-Chapel Hill is aware that students coming from the top ten

percent of their class do better than the rest of the student body. According to UNCChapel Hill, “by far the best predictor of eventual academic performance in college[] is
high-school grade-point average (GPA).”
ANSWER TO PARAGRAPH 102: Defendants state that to the extent the
allegations set forth in Paragraph 102 are based upon UNC-Chapel Hill’s written
submission to the U.S. Department of Education, the document speaks for itself and
therefore Defendants otherwise deny the allegations in Paragraph 102.
103.

For example, of the 391 first year students who made the Dean’s List in the

Spring of 2012, 79 percent (309 students) were in the top 10 percent of their high school
classes. In addition, among the graduating seniors inducted into Phi Beta Kappa in the
Fall of 2010, more than 85 percent were in the top 10 percent of their high school
graduating classes.

57

ANSWER TO PARAGRAPH 103: Defendants state that to the extent the
allegations set forth in Paragraph 103 are from a written document, the document speaks
for itself. Defendants otherwise deny the allegations set forth in Paragraph 103.
104.

Third, UNC-Chapel Hill’s concern with the decreased admissions chances

of applicants with lower grades is simply the byproduct of an admissions process that
places more emphasis on high-school GPA—which UNC claims is “by far the best
predictor of eventual academic performance in college”—and less emphasis on SAT
scores—which UNC dubs “one factor among many” and a “crude predictor of academic
performance.” UNC-Chapel Hill does not have a compelling government interest in
preferring applicants who do not finish in the top ten percent of their class for its own
sake.
ANSWER TO PARAGRAPH 104: Defendants deny the allegations in Paragraph
104.
105.

In addition to the top-ten-percent plan, UNC-Chapel Hill has other options

available for maintaining or increasing diversity through race-neutral means, including
prioritizing additional socioeconomic factors in the admissions process.
ANSWER TO PARAGRAPH 105: Defendants deny the allegations in Paragraph
105.

58

106.

According to UNC-Chapel Hill’s submission to the Department of

Education, its “applicant pool shows that a disproportionate share of disadvantaged
applicants are also underrepresented applicants.”
ANSWER TO PARAGRAPH 106: Defendants admit, as alleged in Paragraph
106, that UNC-Chapel Hill submitted its study to the U.S. Department of Education. The
UNC-Chapel Hill study otherwise speaks for itself and therefore Defendants otherwise
deny the allegations in Paragraph 106.
107.

UNC-Chapel Hill further noted: “Within the University’s applicant pool,

underrepresented students are much more likely than Asian and white students to come
from disadvantaged households and schools.
ANSWER TO PARAGRAPH 107: Defendants state that to the extent the
allegations set forth in Paragraph 107 are based upon UNC-Chapel Hill’s written
submission to the U.S. Department of Education, the document speaks for itself and
therefore Defendants otherwise deny the allegations set forth in Paragraph 107.
108.

For Fall 2006, underrepresented applicants were “2.3 times more likely

than Asian and white applicants to live in households where neither parent held a college
degree (32.3 percent vs. 13.8 percent); 12.2 times more likely to have been poor enough
to qualify for a waiver of their admissions application fee (22.1 percent vs. 1.8 percent);
1.9 times more likely to live in a single-parent household (33.6 percent vs. 17.3 percent);

59

and 5.0 times more likely to attend a high school where at least half of the students
qualified for free or reduced-price lunch (18.1 percent vs. 3.6 percent).”
ANSWER TO PARAGRAPH 108: Defendants state that to the extent the
allegations set forth in Paragraph 108 are based upon UNC-Chapel Hill’s written
submission to the U.S. Department of Education, the document speaks for itself and
therefore Defendants otherwise deny the allegations set forth in Paragraph 108.
109.

UNC-Chapel Hill further noted: “Overall, underrepresented applicants were

2.0 times more likely than their Asian and white counterparts to come from backgrounds
with at least one of these characteristics (52.6 percent vs. 26.4 percent). The ratio was
even higher for students with any two of these characteristics (4.2 times as likely, or 20.7
percent vs. 4.2 percent); for students with three or more characteristics, the ratio was
higher still (12.2 times more likely, or 6.5 percent vs. 0.5 percent).”
ANSWER TO PARAGRAPH 109: Defendants state that to the extent the
allegations set forth in Paragraph 109 are based upon UNC-Chapel Hill’s written
submission to the U.S. Department of Education, the document speaks for itself and
therefore Defendants otherwise deny the allegations set forth in Paragraph 109.
110.

In addition, UNC-Chapel Hill stated that its “Covenant Scholars” are “2.5

times more likely to be underrepresented than the class as a whole (47 percent vs. 19
percent) and are the poorest of the University’s new students.”

60

ANSWER TO PARAGRAPH 110: Defendants state that to the extent the
allegations set forth in Paragraph 110 are based upon UNC-Chapel Hill’s written
submission to the U.S. Department of Education, the document speaks for itself and
therefore Defendants otherwise deny the allegations set forth in Paragraph 110.
111.

Given this strong correlation between socioeconomic status and race in

UNC-Chapel Hill’s applicant pool, UNC-Chapel Hill could easily maintain or increase its
racial diversity by emphasizing socioeconomic indicators instead of race.
ANSWER TO PARAGRAPH 111: Defendants deny the allegations in Paragraph
111.
112.

Like the percentage plan described above, an admissions plan emphasizing

additional socioeconomic factors would have no impact on academic quality of the
student body.
ANSWER TO PARAGRAPH 112: Defendants deny the allegations in Paragraph
112.
113.

For example, UNC-Chapel Hill prides itself on the academic success of its

Covenant Scholars, who by definition come from socioeconomically disadvantaged
backgrounds: “The fact that Covenant Scholars are from lower-income backgrounds
doesn’t get in the way of their academic success. Covenant Scholars do well at
Carolina.”
61

ANSWER TO PARAGRAPH 113: Defendants admit, to the extent alleged in
Paragraph 113 that UNC-Chapel Hill prides itself on the academic success of its
Covenant Scholars. Defendants deny the remaining allegations in Paragraph 113.
114.

According to UNC-Chapel Hill, more than 97 percent of Covenant Scholars

“will return for the second year at Carolina—a rate equal to that of their classmates with
higher incomes and SAT scores.” In addition, “Covenant Scholars are still enrolled in
Year 4 at almost the same rate as all other students at the University,” and “the average
grade point average for Scholars at graduation is almost the same as for all students.”
ANSWER TO PARAGRAPH 114: Defendants admit the allegations in
Paragraph 114.
115.

When UNC-Chapel Hill makes its admissions decisions, as reflected by the

lack of socioeconomic diversity in the student body as compared to racial diversity, it
gives almost no weight to an applicant’s socioeconomic status, whether measured by
income or by wealth, and/or community of origin.
ANSWER TO PARAGRAPH 115: Defendants deny the allegations in Paragraph
115.
116.

Measured in terms of those students receiving federal Pell Grants, which

are awarded to students coming from low-income families, UNC-Chapel Hill lags behind
other schools. The percentage of students at UNC-Chapel Hill who receive Pell Grants in
62

2013 was only 20 percent. In comparison, universities that employ race-neutral
admissions had far greater numbers of Pell Grant recipients, including the University of
California, Los Angeles (UCLA) (35 percent), the University of California, Berkeley (33
percent), and the University of Florida (30 percent). 2014 National Universities
Rankings – Social Mobility, Washington Monthly (2014). Nationally, 36 percent of
college students receive Pell Grants. See College Board, Trends in Student Aid 2013. In
a 2010 study of flagship universities, the Education Trust placed UNC-Chapel Hill in the
bottom quartile for low-income student access. See Opportunity Adrift: Our Flagship
Universities are Straying from Their Public Mission (2010), Figure 17.
ANSWER TO PARAGRAPH 116: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 116
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 116 are based upon the referenced studies, the studies
speak for themselves.
117.

By contrast, UNC-Chapel Hill places far greater weight on an applicant’s

race—regardless of his or her socioeconomic status or the community of origin.
ANSWER TO PARAGRAPH 117: Defendants deny the allegations in Paragraph
117.

63

118.

By increasing the weight given to an applicant’s socioeconomic status

and/or community of origin, UNC-Chapel Hill can achieve student body diversity
without resorting to the disfavored tool of racial preferences.
ANSWER TO PARAGRAPH 118: Defendants deny the allegations in Paragraph
118.
B.

UNC-Chapel Hill Can Achieve Student Body Diversity Without Using Race
As A Factor In Admissions Decisions By Making Greater Use Of Financial
Aid And Scholarships To Attract Minority Candidates.
119.

Relying on socioeconomic instead of racial preferences at the admissions

stage is the first step. But UNC-Chapel Hill needs to ensure that those underprivileged
minorities that benefit from socioeconomic preferences are in a position to accept the
offer of admission and enroll at UNC-Chapel Hill. To that end, UNC-Chapel Hill can
achieve student body diversity by increasing its use of financial aid and scholarships.
ANSWER TO PARAGRAPH 119: Defendants deny the allegations in Paragraph
119.
120.

Colleges and universities that have eliminated racial preferences have

maintained or increased student body diversity by offering more financial aid to
socioeconomically disadvantaged students. For example, the University of California
system, which does not use race-based preferences, covers tuition for students from
families with incomes below $80,000. The University of California devotes one-third of
tuition revenue to financial aid.
64

ANSWER TO PARAGRAPH 120: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 120
and therefore deny those allegations.
121.

Yet in August 2014, the UNC Board of Governors instituted a cap that

prevents UNC from devoting more than 15 percent of tuition revenue to financial aid.
ANSWER TO PARAGRAPH 121: Defendants deny the allegations in Paragraph
121.
122.

Moreover, UNC-Chapel Hill could do much more to support

socioeconomically disadvantaged students given its significant economic resources.
UNC’s $2.38 billion endowment is the one of the largest in the nation; it exceeds the
gross domestic product of Greenland and 36 other countries.
ANSWER TO PARAGRAPH 122: Defendants deny the allegations in the first
sentence in Paragraph 122. Defendants admit that UNC-Chapel Hill’s endowment at the
end of the 2014 fiscal year was approximately $2.7 billion. Defendants otherwise lack
knowledge or information sufficient to form a belief about the truth of the allegations in
the second sentence of Paragraph 122 and therefore deny those allegations.
123.

Yet the total cost of full-time attendance for undergraduates is estimated to

be $24,120 for North Carolina residents and $50,938 for out-of-state residents.

65

ANSWER TO PARAGRAPH 123: Defendants admit, as alleged in Paragraph
123, that the total cost of full-time attendance for undergraduate students for the current
application year approximates the alleged amounts
124.

UNC-Chapel Hill has the economic resources to increase its financial aid

far beyond the 15 percent threshold. Doing so would make it possible for
underprivileged minorities, especially those in the lower middle class, and those who may
have slightly higher income levels but less wealth, admitted to UNC-Chapel Hill through
the increased use of socioeconomic preferences (as opposed to the affluent minorities
currently being admitted due to racial preferences) to be in a position to accept an offer of
admission and enroll at UNC-Chapel Hill.
ANSWER TO PARAGRAPH 124: Defendants deny the allegations in the first
sentence of Paragraph 124. Defendants lack knowledge or information sufficient to form
a belief about the truth of the allegations in the second sentence of Paragraph 124 and
therefore deny those allegations.

66

C.

UNC-Chapel Hill Can Achieve Student Body Diversity Without Using Race
As A Factor In Admissions Decisions Through Increased Recruitment And
Other Steps Designed To Encourage More Qualified Minority Students To
Apply For Admission.
125.

UNC-Chapel Hill can achieve student body diversity by bringing more

highly qualified, socioeconomically disadvantaged minorities into its applicant pool.
Across the country, there are tens of thousands of socioeconomically disadvantaged,
high-achieving minorities who fail to apply to selective schools, including UNC-Chapel
Hill, at which they would likely be admitted and at which they would enroll if offered
sufficient financial aid.
ANSWER TO PARAGRAPH 125: Defendants deny the allegations in the first
sentence of Paragraph 125. Defendants otherwise lack knowledge or information
sufficient to form a belief about the truth or falsity of the remaining allegations in
Paragraph 125 and therefore deny those allegations.
126.

One study found that between 25,000 and 35,000 socioeconomically

disadvantaged high school seniors obtain an SAT or ACT in the 90th percentile or higher
and have a GPA of A- or better. Nearly 6 percent of this group is African-American and
nearly 8 percent is Hispanic. A great many of these socioeconomically disadvantaged
students “undermatch” by applying to and enrolling at colleges and universities less
selective than the ones to which they could have been admitted. See Caroline Hoxby,
Christopher Avery, The Missing “One-Offs”: The Hidden Supply of High-Achieving,
Low-Income Students, Brookings Papers on Economic Activity (Spring 2013).
67

ANSWER TO PARAGRAPH 126: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 126
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 126 are based upon the referenced study, the study
speaks for itself.
127.

Universities with race-neutral admissions have increased their student body

diversity by improving recruitment of these socioeconomically disadvantaged, highachieving minority students. For example, after race-based admissions were eliminated
in Texas, the University of Texas at Austin increased its student body diversity by
implementing numerous programs designed to recruit students from underrepresented
regions and high schools, including “Longhorn Game Weekends,” which focus on
specific geographic regions, and “Longhorn for a Day,” which reaches out to students in
underrepresented high schools.
ANSWER TO PARAGRAPH 127: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 127
and therefore deny those allegations.
128.

Furthermore, a study found that simply mailing a well-designed, targeted

brochure to high-achieving, socioeconomically disadvantaged students could be
instrumental in causing them to apply to selective colleges and universities. See Sheryll
Cashin, Place not Race: A New Vision of Opportunity in America 49 (2014).
68

ANSWER TO PARAGRAPH 128: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 128
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 128 are based upon the referenced study, the study
speaks for itself.
129.

Universities also have achieved student body diversity by aggressively

recruiting high-achieving community college students, who are more likely to be African
American or Hispanic. For example, in 1997, after California banned racial preferences,
the University of California substantially increased its recruitment and enrollment of
community college students. As a result of the University of California’s efforts, by
2012, about 29 percent of new students enrolling in the University of California system
were transfers from community colleges. See Preparing California for Its Future:
Enhancing Community College Student Transfer to the University of California (2014).
ANSWER TO PARAGRAPH 129: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 129
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 129 are based upon the referenced study, the study
speaks for itself.
130.

UNC-Chapel Hill can do far more to recruit high-achieving,

socioeconomically disadvantaged minority students or high-achieving community college
69

students. Carolina’s Student Transfer Excellence Program (C-STEP) has enrolled a mere
450 students since 2006, which represents fewer than 2 percent of new students enrolled
during that time period.
ANSWER TO PARAGRAPH 130: Defendants deny the allegations in Paragraph
130.
131.

This failure to recruit socioeconomically disadvantaged students is reflected

in UNC-Chapel Hill’s applicant pool. Although there are more than 10,000 high schools
in the country that have students with the credentials to be admitted to UNC-Chapel Hill,
only a small fraction of these schools have students who ultimately apply to UNC-Chapel
Hill.
ANSWER TO PARAGRAPH 131: Defendants deny the allegations in the first
sentence of Paragraph 131. Defendants lack knowledge or information sufficient to form
a belief about the truth or falsity of the remaining allegations in Paragraph 131 and
therefore deny those allegations.
132.

UNC-Chapel Hill could achieve its student body diversity without the use

of racial preferences by improving its recruitment of socioeconomically disadvantaged,
high-achieving minorities and community college students.
ANSWER TO PARAGRAPH 132: Defendants deny the allegations in Paragraph
132.
70

D.

UNC-Chapel Hill Can Achieve Student Body Diversity Without Using Race
As A Factor In Admissions Decisions Through Elimination Of Admissions
Policies And Practices That Harm Minority Applicants.
133.

UNC-Chapel Hill employs admissions practices and policies that make it

more difficult for socioeconomically disadvantaged minorities to gain admission.
Eliminating these practices and policies would allow UNC-Chapel Hill to achieve student
body diversity without using racial preferences.
ANSWER TO PARAGRAPH 133: Defendants deny the allegations in Paragraph
133.
134.

UNC-Chapel Hill purports to not grant admissions preferences to in- state

legacies, yet the Admissions Director acknowledges that he is aware of the legacy status
of all applicants (both in-state and out-of-state).
ANSWER TO PARAGRAPH 134: Defendants admit, as alleged in the first
sentence of Paragraph 134, that UNC-Chapel Hill does not grant admissions preferences
to in-state legacies. Defendants deny the remainder of the allegations in Paragraph 134.
135.

In addition, UNC-Chapel Hill conceded to the Department of Education

that “for out-of-state students, status as an alumni child can ... be very important” in the
admissions process.

71

ANSWER TO PARAGRAPH 135: Defendants state that to the extent the
allegations set forth in Paragraph 135 are based upon UNC-Chapel Hill’s written
submission to the U.S. Department of Education, the document speaks for itself and
therefore the Defendants otherwise deny the allegations set forth in Paragraph 135.
136.

Eighteen percent of first year students at UNC-Chapel Hill are the

children of alumni.
ANSWER TO PARAGRAPH 136: Defendants admit, as alleged Paragraph 136,
that approximately 18% of UNC-Chapel Hill’s current first year undergraduate students
are the children of alumni.
137.

At most universities throughout the country, including UNC-Chapel Hill,

children of alums are less likely to be socioeconomically disadvantaged or racial
minorities than the rest of the student body. Thus, colleges and universities, like UNCChapel Hill, that grant admissions preferences to legacies give a competitive advantage to
mainly white, wealthy applicants, while undermining the chances for admission of
socioeconomically disadvantaged and minority applicants. See John Brittain and Eric L.
Bloom, Admitting the Truth: The Effect of Affirmative Action, Legacy Preferences, and
the Meritocratic Ideal on Students of Color in College Admissions, Affirmative Action
for the Rich (2010).

72

ANSWER TO PARAGRAPH 137: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 137
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 137 are based upon the referenced study, the study
speaks for itself.
138.

As a consequence, eliminating legacy preferences in conjunction with other

race-neutral admissions policies can achieve student body diversity. Several universities,
including Texas A&M University, the University of Georgia, and the University of
California, have increased their student body diversity by ending their practice of
favoring legacies in the admissions process in conjunction with the elimination of racial
preferences.
ANSWER TO PARAGRAPH 138: Defendants deny the allegations in the first
sentence of Paragraph 138. Defendants lack knowledge or information sufficient to form
a belief about the truth or falsity of the remaining allegations in Paragraph 138 and
therefore deny those allegations.
139.

Furthermore, one study found that eliminating legacy preferences in

combination with other race-neutral admissions criteria could more than double AfricanAmerican and Hispanic enrollment and more than triple the enrollment of
socioeconomically disadvantaged students. See Anthony P. Carnevale, Stephen J. Rose,

73

Jeff Strohl, Achieving Racial and Economic Diversity with Race-Blind Admissions
Policy, The Future of Affirmative Action (2014).
ANSWER TO PARAGRAPH 139: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 139
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 139 are based upon the referenced study, the study
speaks for itself.
140.

Eliminating legacy preferences is a workable race-neutral strategy.

Research finds that the existence of legacy preferences does not increase alumni
donations to an institution. See Chad Coffman, Tara O’Neil, and Brian Starr, An
Empirical Analysis of Legacy Preferences on Alumni Giving at Top Universities,
Affirmative Action for the Rich (2010).
ANSWER TO PARAGRAPH 140: Defendants deny the allegations in the first
sentence of Paragraph 140. Defendants lack knowledge or information sufficient to form
a belief about the truth or falsity of the remaining allegations in Paragraph 140 and
therefore deny those allegations. Defendants further state that to the extent the remaining
allegations set forth in Paragraph 140 are based upon the referenced study, the study
speaks for itself.

74

141.

UNC-Chapel Hill can achieve student body diversity without using racial

preferences by eliminating legacy admissions preferences in conjunction with other raceneutral measures.
ANSWER TO PARAGRAPH 141: Defendants deny the allegations in Paragraph
141.
142.

UNC-Chapel Hill also admits applicants through an early admission

program. Early admissions is a practice in which schools allow students to submit their
application in the early Fall if they apply to only one school or promise to attend the
school if admitted.
ANSWER TO PARAGRAPH 142: Defendants deny the allegations in
Paragraph 142.
143.

Early admission programs, like UNC-Chapel Hill’s program, usually

benefit wealthier and better-informed students because these students have the resources
to submit their application early and do not need to hold out for the prospect of financial
aid. See Justin Pope, Harvard Drops Early Admissions, Saying They Favor Wealthier
Students Over Minorities, Poor, Associated Press (Sept. 12, 2006).

75

ANSWER TO PARAGRAPH 143: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 143
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 143 are based upon the referenced study, the study
speaks for itself.
144.

By contrast, socioeconomically disadvantaged students and minorities face

a disadvantage under early admission programs because they often receive inadequate
information and counseling and lack the economic resources to commit to a school so
early in the process.
ANSWER TO PARAGRAPH 144: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 144
and therefore deny those allegations.
145.

UNC-Chapel Hill can achieve student body diversity without using racial

preferences by eliminating its early admissions program in conjunction with other raceneutral measures.
ANSWER TO PARAGRAPH 145: Defendants deny the allegations in Paragraph
145.

76

E.

Achieving Student Body Diversity Through Race-Neutral Means Eliminates
The Heavy Cost Imposed By The Use Of Racial Preferences.
146.

Any assessment of the feasibility of race-neutral alternatives must also take

into account the heavy costs of not employing them. The costs of continuing to use racial
preferences when workable race-neutral alternatives exist are high from both a legal and
a practical perspective.
ANSWER TO PARAGRAPH 146: Defendants deny the allegations in Paragraph
146.
147.

As a legal matter, “[d]istinctions between citizens solely because of their

ancestry are by their very nature odious to a free people, and therefore are contrary to our
traditions and hence constitutionally suspect.” Fisher v. University of Texas at Austin,
133 S. Ct. 2411, 2418 (2013) (citations and quotations omitted). As a result, the
Fourteenth Amendment, and therefore Title VI, “forbids the use even of narrowly drawn
racial classifications except as a last resort.” Croson, 488 U.S. at 519 (Kennedy, J.,
concurring in part and concurring in the judgment).
ANSWER TO PARAGRAPH 147: Defendants state that Paragraph 147 contains
conclusions of law to which no response is necessary.
148.

UNC-Chapel Hill’s practice of labeling all applicants according to broad

racial categories illustrates why such classifications are pernicious and always create the

77

“danger that a racial classification is merely the product of unthinking stereotypes or a
form of racial politics.” Croson, 488 U.S. at 493.
ANSWER TO PARAGRAPH 148: Defendants deny the allegations in Paragraph
148.
149.

These racial categories lump together students in categories such as

“African American” or “Hispanic” or “Asian American,” even though they come from
vastly different cultures, experiences, and backgrounds.
ANSWER TO PARAGRAPH 149: Defendants admit, to the extent alleged in
Paragraph 149, that students come from different cultures, experiences, and backgrounds.
Defendants otherwise deny the allegations in Paragraph 149.
150.

For example, UNC-Chapel Hill’s category of “Asian Americans”

comprises roughly 60 percent of the world’s population, including individuals of
Chinese, Japanese, Korean, Vietnamese, Cambodian, Hmong, and Indian descent.
ANSWER TO PARAGRAPH 150: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 150
and therefore deny those allegations.
151.

While many Asian Americans have been in the United States for

generations, others are recent immigrants or children of immigrants. Some Asian
Americans came to the United States to escape communism, authoritarianism, war, and
78

poverty, while others simply sought out greater opportunities. Some Asian Americans
come from highly educated families, but many others do not.
ANSWER TO PARAGRAPH 151: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 151
and therefore deny those allegations.
152.

Asian Americans also have a wide range of religious beliefs, including

Christianity, Islam, Buddhism, Judaism, Hinduism, and many others. Some come from
cultures that aggressively promote education, while many others come from cultures that
take a less demanding approach.
ANSWER TO PARAGRAPH 152: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 152
and therefore deny those allegations.
153.

Thus, for example, Indian-American students are different from Japanese-

American students; Vietnamese-American students are different from Chinese-American
students; and students from Mainland China, Hong Kong, and Taiwan all have unique
perspectives and cultural experiences.
ANSWER TO PARAGRAPH 153: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 153
and therefore deny those allegations.
79

154.

Given this diversity, it is lamentable for UNC-Chapel Hill to lump all Asian

Americans together in the admissions process. Yet this categorization is the inevitable
byproduct of using group-based racial classifications instead of employing race-neutral
alternatives that are able to account for the vast differences among applicants.
ANSWER TO PARAGRAPH 154: Defendants deny the allegations in Paragraph
154.
155.

Racial classifications also have a stigmatizing effect on the supposed

beneficiaries of these policies. Irrespective of whether an individual African-American
or Hispanic applicant is admitted to UNC-Chapel Hill because of a racial preference, so
long as racial preferences exist, it will often be assumed that race is the reason for the
applicant’s admission to the school. This stigma can have a devastating effect on the
psyche of impressionable students.
ANSWER TO PARAGRAPH 155: Defendants deny the allegations in Paragraph
155.
156.

For example, according to one African American who attended an elite

liberal arts college, upon arriving at school, “I was immediately stereotyped and put into
a box because I was African-American. And that made it harder to perform…. There
was a general feeling that all blacks on campus were there either because they were
athletes or they came through a minority-recruitment program and might not really

80

belong there.” Shaken by the experience, the student dropped out after his freshman
year.
ANSWER TO PARAGRAPH 156: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 156
and therefore deny those allegations.
157.

UNC-Chapel Hill can eliminate the harmful effects these unfair stereotypes

cause by using race-neutral alternatives.
ANSWER TO PARAGRAPH 157: Defendants deny the allegations in Paragraph
157.
158.

Finally, the “mismatch effect” of racial preferences far too frequently put

the supposed beneficiaries of race-based admissions policies in a position where they
cannot succeed academically in order to fulfill the university’s social-engineering vision.
ANSWER TO PARAGRAPH 158: Defendants deny the allegations in Paragraph
158.
159.

This “mismatch” effect happens when a school employs such a large

admissions preference that the student is academically damaged in a variety of ways by
being placed in an academic environment where most of the student’s peers have
substantially stronger levels of academic preparation.

81

ANSWER TO PARAGRAPH 159: Defendants deny the allegations in Paragraph
159.
160.

For example, a student who would flourish at a less elite school instead

finds himself or herself at UNC-Chapel Hill, where the professors are not teaching at a
pace designed for him or her. Instead, they are teaching to the “middle” of the class,
introducing terms and concepts at a speed that is unnerving even to the best-prepared
student.
ANSWER TO PARAGRAPH 160: Defendants deny the allegations in Paragraph
160.
161.

The student who is underprepared relative to others in that class falls

behind from the start and becomes increasingly lost as the professor and classmates race
ahead. The student’s grades on his or her first exams or papers put him or her at the
bottom of the class. Worse, the experience may well induce panic and self-doubt,
making learning even more difficult, thus creating a vicious cycle that only exacerbates
the problem.
ANSWER TO PARAGRAPH 161: Defendants deny the allegations in Paragraph
161.
162.

The “mismatch effect” has been documented in dozens of studies. See, e.g.,

Peter Arcidiacono, Esteban M. Aucejo, and Ken Spenner, What Happens After
82

Enrollment? An Analysis of the Time Path of Racial Differences in GPA and Major
Choice (2011); U.S. Commission on Civil Rights, Encouraging Minority Students to
Pursue Science, Technology, Engineering and Math Careers, Briefing Report
(October 2010); Richard Sander and Roger Bolus, Do Credential Gaps in College
Reduce the Number of Minority Science Graduates? (2009); Richard Sander, A Systemic
Analysis of Affirmative Action in American Law Schools, 57 Stan. L. Rev. 367 (2004);
Stephen Cole and Elinor Barber, Increasing Faculty Diversity (2003); Rogers Elliott, A.
Christopher Strenta, Russell Adair, Michael Matier and Jannah Scott, The Role of
Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37 Research
in Higher Education 681 (1996).
ANSWER TO PARAGRAPH 162: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 162
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 162 are based upon the referenced studies, the studies
speak for themselves.
163.

As this research demonstrates, African-American college freshmen are

more likely to aspire to science or engineering careers than are white freshmen, but
mismatch causes African Americans to abandon these fields at twice the rate of whites.

83

ANSWER TO PARAGRAPH 163: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 163
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 163 are based upon the referenced studies, the studies
speaks for themselves.
164.

As a consequence, African Americans who start college interested in

pursuing a doctorate and an academic career are twice as likely to be derailed from this
path if they attend a school where they are mismatched.
ANSWER TO PARAGRAPH 164: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 164
and therefore deny those allegations.
165.

Furthermore, about half of African-American college students rank in the

bottom 20 percent of their classes.
ANSWER TO PARAGRAPH 165: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 165
and therefore deny those allegations.
166.

Mismatch also creates social problems on campus. The academic research

shows that interracial friendships are more likely to form among students with relatively

84

similar levels of academic preparation; thus, African Americans and Hispanics are more
socially integrated on campuses where they are less academically mismatched.
ANSWER TO PARAGRAPH 166: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 166
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 166 are based upon a referenced study, the study speaks
for itself.
167.

UNC-Chapel Hill has experienced and continues to experience the

“mismatch effect.” At least two serious forms of mismatch have been specifically
documented in studies that included students from UNC-Chapel Hill: “academic
mismatch” and “science mismatch.”
ANSWER TO PARAGRAPH 167: Defendants deny the allegations in Paragraph
167.
168.

In 2003, Harvard University Press published Increasing Faculty Diversity,

a major study by sociologists Stephen Cole and Elinor Barber that sought to understand
why there were so few underrepresented minorities—particularly African Americans—in
the academic pipeline leading to university faculty positions. In an effort sponsored by
the Council of Ivy League Presidents, Cole and Barber conducted in-depth surveys of

85

thousands of underrepresented minority students at a wide range of institutions, including
at UNC-Chapel Hill.
ANSWER TO PARAGRAPH 168: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 168
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 168 are based upon the referenced study, the study
speaks for itself.
169.

They focused on students who started college with a significant interest in

pursuing an academic career. They found, however, that when students received a large
preference to attend a more elite school, they tended to get lower grades than they would
have had they attended a school where their credentials were close to (or even above) the
median of their classmates. Students receiving large preferences were more likely to get
low grades, and poor performance sharply eroded their interest in pursuing an academic
career.
ANSWER TO PARAGRAPH 169: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 169
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 169 are based upon the referenced study, the study
speaks for itself.

86

170.

The study’s results demonstrate that colleges like UNC-Chapel Hill play a

double role: the strongest minority students attending UNC-Chapel Hill (those who
received no preference or a minimal preference) outperformed their Ivy League peers and
quite often remained on the academic track; those who received large preferences into
UNC-Chapel Hill were likely to suffer from academic mismatch. No subsequent
research has rebutted Cole and Barber’s findings.
ANSWER TO PARAGRAPH 170: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 170
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 170 are based upon the referenced study, the study
speaks for itself.
171.

In 2004, two psychologists at the University of Virginia published a peer-

reviewed study of minority attrition in the sciences. See Frederick L. Smyth and John J.
McArdle, Ethnic and Gender Differences in Science Graduation at Selective Colleges
With Implications For Admission Policy and College Choice, Research In Higher
Education, Vol. 45, No. 4 (June 2003). These scholars gained permission to use the
College and Beyond dataset assembled by the Mellon Foundation. This data set included
comprehensive data from Ivy League colleges, selective liberal arts colleges, historically
black colleges, and several flagship state university, including UNC-Chapel Hill.

87

ANSWER TO PARAGRAPH 171: The Defendants lack knowledge or
information sufficient to form a belief about the truth or falsity of the allegations in
Paragraph 171 and therefore deny those allegations. Defendants further state that to the
extent the allegations set forth in Paragraph 171 are based upon the referenced study, the
study speaks for itself.
172.

Smyth and McArdle examined what factors affected the success of students

in science, technology, engineering, and math (“STEM”) fields of study. They found that
a critical factor was a student’s academic preparation relative to her peers. Moreover,
they found that this effect was essentially identical for white, African American, and
Hispanic students. In all cases, students who attended a school where their level of
academic preparation was substantially lower than those of their peers were far more
likely to drop out of STEM fields as compared to identical students who attended schools
where their relative peer position was higher. The effect was so large that Smyth and
McArdle advised high school counselors to take potential mismatch into account in
helping students understand the pros and cons of attending “reach” schools.
ANSWER TO PARAGRAPH 172: Defendants lack knowledge or information
sufficient to form a belief about the truth or falsity of the allegations in Paragraph 172
and therefore deny those allegations. Defendants further state that to the extent the
allegations set forth in Paragraph 172 are based upon the referenced study, the study
speaks for itself.

88

173.

UNC-Chapel Hill can eliminate this harmful mismatch and allow students

to excel at schools for which they are most prepared by eliminating the use of racial
preferences and employing race-neutral alternatives that bring high-performing,
socioeconomically disadvantaged minorities into the applicant pool.
ANSWER TO PARAGRAPH 173: Defendants deny the allegations in Paragraph
173.
VII.

GOVERNING LAW
174.

The Fourteenth Amendment provides, in relevant part, that no person shall

be denied “the equal protection of the laws.”
ANSWER TO PARAGRAPH 174: Defendants state that Paragraph 174 contains
a statement and conclusion of law to which no response is required.
175.

Section 1981 of Title 42 of the United States Code provides: “All persons

within the jurisdiction of the United States shall have the same right in every State and
Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for the security of persons and property as
is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other.”
ANSWER TO PARAGRAPH 175: Defendants state that Paragraph 175 contains
a statement and conclusion of law to which no response is required.
89

176.

Section 1983 of Title 42 of the United States Code provides: “Every person

who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress ….”
ANSWER TO PARAGRAPH 176: Defendants state that Paragraph 176 contains
a statement and conclusion of law to which no response is required.
177.

Title VI of the Civil Rights Act of 1964 provides: “No person in the United

States shall, on the ground of race, color, or national origin, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
ANSWER TO PARAGRAPH 177: Defendants state that Paragraph 177 contains
a statement and conclusion of law to which no response is required.
178.

Under Title VI, “the term ‘program or activity’ and the term ‘program’

mean all of the operations … of a college, university, or other postsecondary institution,
or a public system of higher education … any part of which is extended Federal financial
assistance.” 42 U.S.C. § 2000d-4a.

90

ANSWER TO PARAGRAPH 178: Defendants state that Paragraph 178 contains
a statement and conclusion of law to which no response is required.
179.

An institution that accepts federal funds violates Title VI when it engages

in racial or ethnic discrimination that violates the Equal Protection Clause of the
Fourteenth Amendment of the United States Constitution. See Gratz v. Bollinger, 539
U.S. 244, 257 n.23 (2003) (“We have explained that discrimination that violates the
Equal Protection Clause of the Fourteenth Amendment committed by an institution that
accepts federal funds also constitutes a violation of Title VI.”) (citing Alexander v.
Sandoval, 532 U.S. 275, 281 (2001)).
ANSWER TO PARAGRAPH 179: Defendants state that Paragraph 179 contains
a legal conclusion to which no response is required.
180.

The “central mandate” of equal protection is “racial neutrality” by the

government or institution subject to the Fourteenth Amendment. Miller v. Johnson, 515
U.S. 900, 904 (1995). “Whenever the government treats any person unequally because of
his or her race, that person has suffered an injury that falls squarely within the language
and spirit of the Constitution’s guarantee of equal protection.” Adarand Constructors,
Inc. v. Pena, 515 U.S. 200, 229-30 (2000).
ANSWER TO PARAGRAPH 180: Defendants state that Paragraph 180 contains
a legal conclusion to which no response is required.

91

181.

“Distinctions between citizens solely because of their ancestry are by their

very nature odious to a free people, and therefore are contrary to our traditions and hence
constitutionally suspect.” Fisher, 133 S. Ct. at 2419 (citations and quotations omitted).
Thus, “any official action that treats a person differently on account of race or ethnic
origin is inherently suspect.” Id. (citation and quotations omitted). In other words,
“because racial classifications so seldom provide a relevant basis for disparate treatment,
the Equal Protection Clause demands that racial classifications be subjected to the most
rigid scrutiny.” Id. (citations and quotations omitted).
ANSWER TO PARAGRAPH 181: Defendants state that Paragraph 181 contains
a legal conclusion to which no response is required.
182.

“[A]ll racial classifications … must be analyzed by a reviewing court under

strict scrutiny.” Adarand, 515 U.S. at 227. “Strict scrutiny is a searching examination,
and it is the government that bears the burden to prove that the reasons for any racial
classification are clearly identified and unquestionably legitimate.” Fisher, 133 S. Ct. at
2419 (citations and quotations omitted). Strict scrutiny thus requires a “detailed judicial
inquiry to ensure that the personal right to equal protection of the laws has not been
infringed.” Adarand, 515 U.S. at 227.
ANSWER TO PARAGRAPH 182: Defendants state that Paragraph 182 contains
a legal conclusion to which no response is required.

92

183.

In particular, strict scrutiny requires a “detailed examination, both as to

ends and to means.” Adarand, 515 U.S. at 236. When governmental institutions
implement policies and practices that “touch upon an individual’s race or ethnic
background, he is entitled to a judicial determination that the burden he is asked to bear
on that basis is precisely tailored to serve a compelling governmental interest.” Fisher,
133 S. Ct. at 2417 (citations and quotations omitted).
ANSWER TO PARAGRAPH 183: Defendants state that Paragraph 183 contains
a legal conclusion to which no response is required.
184.

Racial “classifications are constitutional only if they are narrowly tailored

to further compelling governmental interests.” Grutter, 539 U.S. at 326.
ANSWER TO PARAGRAPH 184: Defendants state that Paragraph 184 contains
a legal conclusion to which no response is required.
185.

“Strict 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 classification is necessary to accomplish that purpose.” Fisher, 133 S. Ct. at 2418.
ANSWER TO PARAGRAPH 185: Defendants state that Paragraph 185 contains
a legal conclusion to which no response is required.
186.

To meet strict scrutiny, the end must be “compelling”—not merely

legitimate or important. To be narrowly tailored, “the means chosen” must “fit” the
93

unmet compelling interest “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 (citations and quotations omitted). In other words, “racial classifications, however,
compelling their goals, are potentially so dangerous that they may be employed no more
broadly than the interest demands.” Grutter, 539 U.S. at 342.
ANSWER TO PARAGRAPH 186: Defendants state that Paragraph 186 contains
a legal conclusion to which no response is required.
187.

“To survive strict scrutiny,” moreover, the institution “must do more than

assert a compelling state interest—it must demonstrate that its law is necessary to serve
the asserted interest.” Burson v. Freeman, 504 U.S. 191, 199 (1992). The government
must establish the necessity of using race by a “strong basis in evidence” because “the
mere recitation” of a compelling interest is “not an automatic shield which protects
against any inquiry” into the justification for race-based action.” Croson, 488 U.S. at
495, 500. Strict scrutiny “forbids the use even of narrowly drawn racial classifications
except as a last resort.” Id. at 519 (Kennedy, J., concurring in part and concurring in the
judgment).
ANSWER TO PARAGRAPH 187: Defendants state that Paragraph 187 contains
a legal conclusion to which no response is required.

94

188.

Racial quotas violate the Fourteenth Amendment. In the educational

setting, then, “universities cannot establish quotas for members of certain racial groups or
put members of those groups on separate admissions tracks. Nor can universities insulate
applicants who belong to certain racial or ethnic groups from the competition for
admission.” Grutter, 539 U.S. at 334 (citation omitted).
ANSWER TO PARAGRAPH 188: Defendants state that Paragraph 188 contains
a legal conclusion to which no response is required.
189.

Moreover, the university’s policy violates the Fourteenth Amendment if it

amounts to “racial balancing, which is patently unconstitutional.” Id. at 329. Racial
balancing is a program designed “to assure within [the school’s] student body some
specified percentage of a particular group merely because of its race or ethnic origin.” Id.
(citations and quotation omitted). “[P]roportional representation” is never a
constitutional “rationale for programs of preferential treatment.” Id. at 343.
ANSWER TO PARAGRAPH 189: Defendants deny the first sentence of
Paragraph 189. The second and third sentences of Paragraph 189 contain legal
conclusions to which no answer is required.
190.

The only interest in using racial preferences in higher education that the

Supreme Court has accepted as “compelling” is the interest “in obtaining the educational
benefits that flow from a diverse student body.” Grutter, 539 U.S. at 343. Redressing

95

past discrimination does “not serve as a compelling interest, because a university’s broad
mission of education is incompatible with making the judicial, legislative, or
administrative findings of constitutional or statutory violations necessary to justify
remedial racial classification.” Fisher, 133 S. Ct. at 2417 (citations and quotations
omitted).
ANSWER TO PARAGRAPH 190: Defendants state that Paragraph 190 contains
legal conclusions to which no response is required.
191.

The interest in student body diversity the Supreme Court has found

compelling “is not an interest in simply ethnic diversity, in which a specified percentage
of the student body is in effect guaranteed to be members of selected ethnic groups, with
the remaining percentage an undifferentiated aggregation of students.” Fisher, 133 S. Ct.
at 2418 (citation and quotations omitted). “[C]ritical mass is defined by reference to the
educational benefits that diversity is designed to produce.” Grutter, 539 U.S. at 330.
ANSWER TO PARAGRAPH 191: Defendants state that Paragraph 191 contains
legal conclusions to which no response is required.
192.

Even in the pursuit of critical mass, the Supreme Court has permitted race

to be used only as a “plus” factor in admissions decisions. Id. at 333. “[I]t remains at all
times the University’s obligation to demonstrate, and the Judiciary’s obligations to
determine, that admissions processes ‘ensure that each applicant is evaluated as an

96

individual and not in a way that makes an applicant’s race or ethnicity the defining
feature of his or her application.’“ Fisher, 133 S. Ct. at 2418 (quoting Grutter, 539 U.S.
at 337). Thus, even if “the University has established that its goal of diversity is
consistent with strict scrutiny … there must still be a further judicial determination that
the admissions process meets strict scrutiny in its implementation. The University must
prove that the means chosen by the University to attain diversity are narrowly tailored to
that goal.” Id. at 2419-20.
ANSWER TO PARAGRAPH 192: Defendants state that Paragraph 192 contains
legal conclusions to which no response is required.
193.

“Narrow tailoring also requires that the reviewing court verify that it is

‘necessary’ for a university to use race to achieve the educational benefits of diversity.
This involves a careful judicial inquiry into whether a university could achieve sufficient
diversity without using racial classifications.” Id. at 2420 (internal citation omitted).
Accordingly, strict scrutiny uniformly “require[s] a court to examine with care, and not
defer to, a university’s ‘serious, good faith consideration of workable race-neutral
alternatives.’” Id. (quoting Grutter, 539 U.S. at 339- 340).
ANSWER TO PARAGRAPH 193: Defendants state that Paragraph 193 contains
legal conclusions to which no response is required.

97

194.

“Consideration by the university is of course necessary, but it is not

sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that
no workable race-neutral alternatives would produce the educational benefits of diversity.
If a nonracial approach ... could promote the substantial interest about as well and at
tolerable administrative expense, then the university may not consider race.” Id. (citations
and quotations omitted).
ANSWER TO PARAGRAPH 194: Defendants state that Paragraph 194 contains
legal conclusions to which no response is required.
195.

As a consequence, “strict scrutiny imposes on the university the ultimate

burden of demonstrating, before turning to racial classifications, that available, workable
race-neutral alternatives do not suffice.” Id. (emphasis added).
ANSWER TO PARAGRAPH 195: Defendants state that Paragraph 195 contains
a legal conclusion to which no response is required.

98

VIII. CLAIMS FOR RELIEF
196.

UNC-Chapel Hill’s use of racial preferences in undergraduate admissions

violates the Fourteenth Amendment and federal civil rights laws. First, UNC-Chapel
Hill’s use of racial preferences is not narrowly tailored because UNC-Chapel Hill is not
pursuing the critical-mass interest found permissible in Grutter by failing to use race
merely as “plus” factor. Second, UNC-Chapel Hill is not fully utilizing a number of
race-neutral alternatives that can achieve student body diversity. Third, and last, whether
or not UNC-Chapel Hill is found to be acting permissibly under Supreme Court
precedent, the Supreme Court should overrule any decision holding that the Fourteenth
Amendment or federal civil rights law ever permit the use of racial preferences to achieve
“diversity.”
ANSWER TO PARAGRAPH 196: Defendants deny the allegations in Paragraph
196.
COUNT I
Violation of The Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and 2000d et
seq. (Failure To Use Race Merely As A “Plus” Factor In Admissions Decisions).
197.

Plaintiff incorporates the allegations and averments contained in paragraphs

1-196 as if fully set forth herein.
ANSWER TO PARAGRAPH 197: Defendants incorporate their responses to
Paragraphs 1 through 196 as if fully set forth herein.

99

198.

UNC-Chapel Hill has intentionally discriminated against certain of

Plaintiff’s members on the basis of their race, color, or ethnicity in violation of the
Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and § 2000d et seq., by employing
an undergraduate admissions policy that does not merely use race as a “plus” factor in
admissions decisions in order to achieve student body diversity.
ANSWER TO PARAGRAPH 198: Defendants deny the allegations in Paragraph
198. Defendants further state that Plaintiff’s claims under Section 1981 have been
dismissed pursuant to the aforementioned filing of the Joint Stipulation of Dismissal on
March 20, 2015.
199.

Statistical and other evidence shows that each applicant is not evaluated as

an individual. Instead, race or ethnicity is the defining feature of the application. Only
using race or ethnicity as a dominant factor in admissions decisions could account for the
decision to admit certain African-American and Hispanic applicants and deny admission
to certain white and Asian-American applicants.
ANSWER TO PARAGRAPH 199: Defendants deny the allegations in Paragraph
199.
200.

Plaintiff’s members have been and will continue to be injured because

UNC-Chapel Hill has and will continue to deny them the opportunity to compete for

100

admission to UNC-Chapel Hill on equal footing with other applicants on the basis of race
or ethnicity due to its intentionally discriminatory admissions policies and procedures.
ANSWER TO PARAGRAPH 200: Defendants deny the allegations in Paragraph
200.
201.

Defendants acted under color of law in developing and implementing race-

based policies that led UNC-Chapel Hill to deny Plaintiff’s members equal protection of
the laws and to discriminate against them in violation of the Fourteenth Amendment and
42 U.S.C. §§ 1981, 1983, and § 2000d et seq.
ANSWER TO PARAGRAPH 201: Defendants deny the allegations in Paragraph
201. Defendants further state that Plaintiff’s claims under Section 1981 have been
dismissed pursuant to the aforementioned filing of the Joint Stipulation of Dismissal on
March 20, 2015.
202.

Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201,

and a permanent injunction because there is no plain, adequate, or speedy remedy at law
to prevent UNC-Chapel Hill from continuing to use admissions policies and procedures
that discriminate on the basis of race or ethnicity in violation of the Fourteenth
Amendment and because the harm Plaintiff’s members will otherwise continue to suffer
is irreparable.

101

ANSWER TO PARAGRAPH 202: Defendants deny the allegations in Paragraph
202.
203.

Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. §

1988.
ANSWER TO PARAGRAPH 203: Defendants deny the allegations in Paragraph
203.
COUNT II
Violation of The Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and 2000d et
seq. (Race-Neutral Alternatives)
204.

Plaintiff incorporates the allegations and averments contained in paragraphs

1-203 as if fully set forth herein.
ANSWER TO PARAGRAPH 204: Defendants incorporate their responses to
Paragraphs 1 through 203 as if fully set forth herein.
205.

UNC-Chapel Hill has intentionally discriminated against certain of

Plaintiff’s members on the basis of their race, color, or ethnicity in violation of the
Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and § 2000d et seq., by
employing racial preferences in undergraduate admissions when there are available raceneutral alternatives capable of achieving student body diversity.

102

ANSWER TO PARAGRAPH 205: Defendants deny the allegations in Paragraph
205. Defendants further state that Plaintiff’s claims under Section 1981 have been
dismissed pursuant to the aforementioned filing of the Joint Stipulation of Dismissal on
March 20, 2015.
206.

UNC-Chapel Hill’s use of racial preferences is narrowly tailored only if

using them is necessary to achieve student body diversity. If UNC-Chapel Hill can
achieve student body diversity without resorting to racial preferences, it is required to do
so as a matter of law. Moreover, UNC-Chapel Hill must have a strong basis in evidence
that a non-racial approach will not work about as well as a race-based approach before
turning to the use of racial preferences.
ANSWER TO PARAGRAPH 206: Defendants state that Paragraph 206 contains
legal conclusions to which no response is required. To the extent necessary, Defendants
otherwise deny the allegations in Paragraph 206.
207.

There is no evidence that UNC-Chapel Hill studied all of the available race-

neutral alternatives and had a strong basis in evidence that none would work about as
well before turning to racial preferences.
ANSWER TO PARAGRAPH 207: Defendants deny the allegations in Paragraph
207.

103

208.

Whether UNC-Chapel Hill considered them all or not, there are a host of

race-neutral alternatives that if implemented can achieve student body diversity without
resorting to racial preferences. Among these alternatives, both individually and
collectively, are (a) increased use of non-racial preferences, including a percentage plan,
(b) increased financial aid, scholarships, and recruitment efforts, and (c) elimination of
admissions policies and practices that negatively affect minority applicants.
ANSWER TO PARAGRAPH 208: Defendants deny the allegations in Paragraph
208.
209.

The use of race-neutral alternatives instead of racial preferences would not

only achieve student body diversity, it would eliminate the heavy costs that using race as
a factor in admissions decisions imposes on minority applicants who receive such
admissions preference, the North Carolina community, and society as a whole.
ANSWER TO PARAGRAPH 209: Defendants deny the allegations in Paragraph
209.
210.

Plaintiff’s members have been and will continue to be injured because

UNC-Chapel Hill has and will continue to deny them the opportunity to compete for
admission to UNC-Chapel Hill on equal footing with other applicants on the basis of race
or ethnicity due to its intentionally discriminatory admissions policies and procedures.

104

ANSWER TO PARAGRAPH 210: Defendants deny the allegations in Paragraph
210.
211.

Defendants acted under color of law in developing and implementing race-

based policies that led UNC-Chapel Hill to deny Plaintiff’s members equal protection of
the laws and to discriminate against them in violation of the Fourteenth Amendment and
42 U.S.C. §§ 1981, 1983, and § 2000d et seq.
ANSWER TO PARAGRAPH 211: Defendants deny the allegations in Paragraph
211.
212.

Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201,

and a permanent injunction because there is no plain, adequate, or speedy remedy at law
to prevent UNC-Chapel Hill from continuing to use admissions policies and procedures
that discriminate on the basis of race or ethnicity in violation of the Fourteenth
Amendment and federal civil rights laws and because the harm Plaintiff’s members will
otherwise continue to suffer is irreparable.
ANSWER TO PARAGRAPH 212: Defendants deny the allegations in Paragraph
212.
213.

Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. §

1988.

105

ANSWER TO PARAGRAPH 213: Defendants deny the allegations in Paragraph
213.
COUNT III
Violation of the Fourteenth Amendment and 42 U.S.C §§ 1981, 1983, and 2000d et
seq. (Any Use of Race As A Factor In Admissions).
214.

Plaintiff incorporates the allegations and averments contained in paragraphs

1-213 as if fully set forth herein.
ANSWER TO PARAGRAPH 214: Defendants incorporate their responses to
Paragraphs 1 through 213 as if fully set forth herein.
215.

UNC-Chapel Hill has intentionally discriminated against certain of

Plaintiff’s members on the basis of their race, color, or ethnicity in violation of the
Fourteenth Amendment and 42 U.S.C. §§ 1981, 1983, and § 2000d et seq., by employing
an undergraduate admissions policy that uses race as a factor in admissions.
ANSWER TO PARAGRAPH 215: Defendants deny the allegations in Paragraph
215. Defendants further state that Plaintiff’s claims under Section 1981 have been
dismissed pursuant to the aforementioned filing of the Joint Stipulation of Dismissal on
March 20, 2015.
216.

The Supreme Court’s decisions holding that there is a compelling

government interest in using race as a factor in admissions decisions in pursuit of
“diversity” should be overruled. Those decisions were wrongly decided at the time they
106

were issued, and they remain wrong today. “Diversity” is not an interest that could ever
justify the use of racial preferences under the Fourteenth Amendment and federal civil
rights laws.
ANSWER TO PARAGRAPH 216: Defendants state that Paragraph 216 contains
a legal conclusion to which no response is required.
217.

Even if there were a compelling government interest in “diversity” in the

abstract, however, the use of racial preferences in the educational setting nevertheless
should be forbidden for several important reasons.
ANSWER TO PARAGRAPH 217: Defendants deny the allegations in Paragraph
217.
218.

The Supreme Court’s jurisprudence in this area has been built on mistakes

of fact and law. The Supreme Court first accepted the use of racial preferences in
admissions on the assumption that they would be used consistent with the “Harvard
Plan,” which purported to use race merely as a contextual factor in filling the final few
places in the entering class. But the Harvard Plan itself was created in order to hide racial
and ethnic discrimination. Thus, it is far from certain that Harvard itself ever used race in
this fashion. “The raison d’être for race-specific affirmative action programs has simply
never been diversity for the sake of education.” Alan Dershowitz and Laura Hanft,
Affirmative Action and the Harvard College Diversity-Discretion Model: Paradigm or

107

Pretext, 1 Cardozo L. Rev. 379, 407 (1979). It is instead “a clever post facto justification
for increasing the number of minority group students in the student body.” Id.
ANSWER TO PARAGRAPH 218: Defendants state that Paragraph 218 contains
not only legal conclusions but also Plaintiff’s characterization of its action and legal
conclusions, to which no response is required. To the extent necessary, Defendants deny
the allegations in Paragraph 218.
219.

In any event, neither Harvard nor UNC-Chapel Hill nor any other college

or university uses race in this manner now. Indeed, UNC-Chapel Hill strongly denies
that it uses race as a “tie breaker” to fill the remaining few seats in the entering class.
Instead, college and universities, including UNC-Chapel Hill, claim to use race in order
to pursue a “critical mass” of underrepresented minorities in the student body. But UNCChapel Hill is not pursuing this interest. Even when this interest is actually being
pursued, moreover, it is nothing more than racial balancing in that it necessarily seeks to
ensure a proportional number of students of certain races or ethnicities in the entering
class. Critical mass is a formula for ensuring “a specified percentage of the student body
is in effect guaranteed to be members of selected ethnic groups, with the remaining
percentage an undifferentiated aggregation of students.” Bakke, 438 U.S. at 315 (Powell,
J.).

108

ANSWER TO PARAGRAPH 219: The allegations in Paragraph 219 contain
Plaintiff’s characterization of its action and legal conclusions to which no response is
required. Defendants lack knowledge or information sufficient to form a belief about the
truth or falsity of the allegations in Paragraph 219 concerning colleges or universities
other than UNC-Chapel Hill, and therefore deny those allegations. To the extent
necessary, Defendants deny the allegations in Paragraph 219.
220.

Ultimately, there is overwhelming evidence that colleges and universities

will take advantage of any leeway given by the Supreme Court to use the dangerous tool
of racial preferences in inappropriate ways. Colleges and universities, if given the
chance, will use racial preferences “for the ostensible purpose of enhancing education
diversity of the student body” with the true “goal of simply increasing the number of
minority persons in the universities and in the professions that these universities feed.”
Alan Dershowitz and Laura Hanft, Affirmative Action and the Harvard College DiversityDiscretion Model: Paradigm or Pretext, 1 Cardozo L. Rev. 379, 385 (1979).
ANSWER TO PARAGRAPH 220: The allegations in Paragraph 220 contain
Plaintiff’s characterization of its action and legal conclusions to which no response is
required. To the extent necessary, Defendants deny the allegations in Paragraph 220.
221.

There simply is no practical way to ensure that colleges and universities

will use race in their admissions processes in any way that would meet the narrow
tailoring requirement. The strong medicine of strict scrutiny has proven insufficient to
109

ensure that the Fourteenth Amendment and federal civil rights laws operate in conformity
with racial neutrality except in those rare circumstances that justify the use of this
disfavored remedy. Time after time, district courts and courts of appeals have been either
unwilling or unable to force these colleges and university to provide a strong evidentiary
basis for their conclusion that use of racial preferences is necessary to achieve diversity.
Nor have they been willing to engage in the close review of admissions programs to
ensure that schools are treating each applicant as an individual.
ANSWER TO PARAGRAPH 221: Defendants deny the allegations in
Paragraph 221.
222.

There also have been important factual developments since this question

was last considered by the Supreme Court. There is now much evidence that raceneutral alternatives can achieve the benefits of diversity. This is crucially important in
light of the equally compelling evidence that racial preferences impose significant costs
on the university community, society in general, and the very minority students these
programs are purported to benefit.
ANSWER TO PARAGRAPH 222: Defendants deny the allegations in
Paragraph 222.
223.

In the end, the costs of allowing the use of racial preference in admissions

decisions—even in a limited way—far exceed any rapidly diminishing benefits. No

110

principle of stare decisis counsels in favor of retaining decisions allowing their use.
Those decisions were not well reasoned, were predicated on mistakes of fact, have been
undermined by more recent developments, and have proven to be unworkable. Any
decision allowing the use of racial preferences in the educational setting should be
overruled.
ANSWER TO PARAGRAPH 223: Defendants deny the allegations in Paragraph
223.
224.

Plaintiff’s members have been and will continue to be injured because

UNC-Chapel Hill has and will continue to deny them the opportunity to compete for
admission to UNC-Chapel Hill on equal footing with other applicants on the basis of race
or ethnicity due to its intentionally discriminatory admissions policies and procedures.
ANSWER TO PARAGRAPH 224: Defendants deny the allegations in Paragraph
224.
225.

Defendants acted under color of law in developing and implementing race-

based policies that led UNC-Chapel Hill to deny Plaintiff’s members equal protection of
the laws and to discriminate against them in violation of the Fourteenth Amendment and
42 U.S.C. §§ 1981, 1983, and § 2000d et seq.

111

ANSWER TO PARAGRAPH 225: Defendants deny the allegations in
Paragraph 225. Defendants further state that Plaintiff’s claims under Section 1981 have
been dismissed pursuant to the aforementioned filing of the Joint Stipulation of Dismissal
on March 20, 2015.
226.

Plaintiff is entitled to a declaratory judgment, pursuant to 28 U.S.C. § 2201,

and a permanent injunction because there is no plain, adequate, or speedy remedy at law
to prevent UNC-Chapel Hill from continuing to use admissions policies and procedures
that discriminate on the basis of race or ethnicity in violation of the Fourteenth
Amendment and because the harm Plaintiff’s members will otherwise continue to suffer
is irreparable.
ANSWER TO PARAGRAPH 226: Defendants deny the allegations in Paragraph
226.
227.

Plaintiff is entitled to attorneys’ fees and costs pursuant to 42 U.S.C. §

1988.
ANSWER TO PARAGRAPH 227: Defendants deny the allegations in Paragraph
227.

112

WHEREFORE, Plaintiff, Students for Fair Admissions, Inc., prays for the
following relief as to all counts:
(a)
A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. §
2201, from the Court that Defendants’ admissions policies and procedures violate the
Fourteenth Amendment of the United States Constitution, Title VI of the Civil Rights Act
of 1964, 42 U.S.C. § 2000d et seq., and federal civil rights statutes
(b)

42 U.S.C. §§ 1981 and 1983;

(c)
A declaratory judgment, pursuant to the Declaratory Judgment Act, 28 U.S.C. §
2201, from the Court that any use of race or ethnicity in the educational setting violates
the Fourteenth Amendment, Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d
et seq., and federal civil rights statutes 42 U.S.C. §§ 1981 and 1983;
(d)
A permanent injunction prohibiting Defendants from using race as a factor in
future undergraduate admissions decisions at UNC-Chapel Hill;
(e)
A permanent injunction requiring Defendants to conduct all admissions in a
manner that does not permit those engaged in the decisional process to be aware of or
learn the race or ethnicity of any applicant for admission;
(f)
Attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable
legal authority; and
(g)

All other relief this Court finds appropriate and just.
ANSWER TO WHEREFORE: The requests for relief contained in the

Wherefore clauses following Paragraph 227 contain legal conclusions to which no
response is required by Defendants. To the extent any response is required, Defendants
deny the requests for relief in the Wherefore clauses. Defendants further state that
Plaintiff’s claims under Section 1981 have been dismissed, therefore Plaintiff is not
entitled to relief under Section 1981 pursuant to the aforementioned filing of the Joint
Stipulation of Dismissal on March 20, 2015.

113

DEMAND FOR JURY TRIAL
Plaintiff is not entitled to a jury trial on any claim alleged in the Complaint.
AFFIRMATIVE DEFENSES
Defendants assert the following affirmative defenses on the basis of its
current knowledge and information, reserving its right to assert additional affirmative
defenses on the basis of additional informing becoming available.
1.

Plaintiff has failed to state a claim upon which relief can be granted.

2.

Plaintiff has failed to allege irreparable harm or any other basis upon

which to receive any form of injunctive relief.
3.

The Court lacks subject matter jurisdiction over Plaintiff’s action.

4.

Plaintiff’s claims are barred, in part, by the Eleventh Amendment to

the United States Constitution and the doctrine of sovereign immunity.
5.

Plaintiff cannot prove any facts showing that the Defendants’

conduct was the proximate cause of any harm or damages alleged in the
Complaint, which are denied.
6.

Plaintiff’s claim for equitable relief is barred by the doctrine of Ex

parte Young, 209 U.S. 123 (1908).
7.

All decisions and actions undertaken by Defendants, including but

not limited to those regarding the unnamed Applicant’s denial of admission, were
based upon legitimate and nondiscriminatory reasons.

114

8.

To the extent Plaintiff challenges actions occurring before the

applicable statute of limitations period, such a claim is barred by the same.
WHEREFORE, Defendants respectfully request that the Court enter
judgment in favor of Defendants, together with attorney’s fees, costs, and other relief the
Court deems just and proper.

/s/ Michael Scudder
Michael Scudder
Skadden, Arps, Slate, Meagher & Flom, LLP
155 North Wacker Drive
Chicago, IL 60606-1720
[phone]
E: [e-mail]

ROY COOPER
Attorney General

/s/ Lisa Gilford
Lisa Gilford
Skadden, Arps, Slate, Meagher & Flom, LLP
300 South Grand Ave.
Suite 3400
Los Angeles, CA 90071
[phone]
E: [e-mail]
Attorneys for Defendants

/s/ Matthew Tulchin
Matthew Tulchin
Assistant Attorney General
NC State Bar No. 43921
E: [e-mail]
NC Department of Justice
Post Office Box 629
Raleigh, NC 27602-0629
T: [phone]
F: [phone]
Attorneys for Defendants

115

/s/ Stephanie Brennan
Stephanie Brennan
Special Deputy Attorney General
NC State Bar No. 35955
E: [e-mail]

CERTIFICATE OF SERVICE
I hereby certify that on March 24 2015, I electronically filed the foregoing
ANSWER with the Clerk of Court using the CM/ECF system, which will send
notification of such filing to the following registered CME/ECF users:
Thomas R. McCarthy
William S. Consovoy
J. Michael Connolly
CONSOVOY MCCARTHY PLLC
W. Ellis Boyle
ELLIS BOYLE LAW PLLC
Attorneys for Plaintiff
This 24th day of March 2015
/s/ Michael Scudder
Michael Scudder
Skadden, Arps, Slate, Meagher &
Flom, LLP
155 North Wacker Drive
Chicago, IL 60606-1720
[phone]
E: [e-mail]
Attorney for Defendants

116