*1 favorably aligned was more workweek FISHER, Abigail Noel Plaintiff- schedules.
with their work Appellant cases). “Thus, a (collecting Id. at 794-95 actual whereby employee’s an schedule v. split between two work- work schedule AUSTIN; UNIVERSITY OF TEXAS AT not violate the Id. at [FLSA].” weeks does Pryor, David B. Executive Vice Chan 872). Kerbes, 961 N.E.2d at (quoting in cellor for Academic Affairs His Of plain language of the of light Capacity; Powers, Jr., ficial William 778.105, § value persuasive 29 C.F.R. University of the of President Texas Letter, reasoning Opinion of the Capacity; in His Austin Official therein,
Abshire and the authorities cited Regents Board of of our sister circuit. Under agree we with System; Hicks, Texas R. Steven as FLSA, employer right an has the Regents Member of the Board of Abshire, 695 establish a workweek. See Capacity; His Official Eu William (citation omitted). employ An F.3d at 796 gene Powell, Member as of Board required begin er is not the workweek Regents Capacity; in His Official § any given day. on See 29 C.F.R. 778.105 Huffines, James R. as Member of (“[An employee’s workweek] need co Regents Board of in His Official Ca may incide with the calendar week but pacity; Longoria, Janiece as Member begin any day any on and at hour of the Regents in Her Board of Offi day.”). The mere fact that an established Capacity; McHugh, cial Colleen as an employ workweek does not maximize Regents Board of Member of the not, compensation overtime does ee’s Capacity; L. Her Official Robert Still alone, standing violate the FLSA. See Ab well, as Member of the Board of Re shire, 794; Opinion 695 F.3d at see also gents Capacity; in His James Official Letter, 20, at *3-4. 2009 DOLWH LEXIS Dannenbaum, D. Member of the Rather, only that a requires the FLSA Regents in His Official Ca Board regularly workweek be “a fixed and recur Foster, pacity; Paul as Member of the ring period of 168 hours —seven consecu Regents in His Official Ca Board periods.” tive 24-hour C.F.R. Gary, pacity; Printice L. as Member § complied 778.105. has with UWR/CVR Regents in the Board of His Offi requirement, notwithstanding the fact Capacity; Ishop, cial Kedra Vice Pro actual work schedule Appellants’ Undergraduate Director of vost and thereby reducing spanned two workweeks Capacity; Admissions in Her Official potential compensation. their overtime M.D., Cigarroa, Interim Francisco G. University of Texas
Chancellor of the IV. CONCLUSION System Capacity, His Official Defendants-Appellees. aforementioned, we AF- For the reasons grant FIRM the district court’s of sum- No. 09-50822.
mary judgment. Appeals, United States Court
Fifth Circuit. July *3 Rein, Consovoy, Bert Walter William Evans, McCarthy, R. Esq., Claire Thomas DC, Rein, L.L.P., Washington, Esq., Wiley Terrill, III, Firm, Esq., Paul M. Terrill *4 Austin, TX, Plaintiff-Appellant. for Garre, E. Ma- Gregory George Maureen Watkins, L.L.P., honey, Esq., Latham & Emanuel, McGill, Quinn, Lori Ann Alvino Sullivan, L.L.P., Washington, Urquhart & Ho, Gibson, DC, Dunn & Esq., C. James Crutcher, L.L.P., Dallas, TX, Defen- dants-Appellees. Fauth, Jr., Litigation
Gоrdon Morris Alameda, CA, Ashley Kel- Group, Law C. ler, Bartlit, Beck, Herman, Palenchar & IL, Scott, L.L.P., Chicago, James Scott Detamore, Legal Esq., Mountain States CO, Foundation, Lakewood, Timothy Ma- Sandefur, Thompson, Paul Pa- son Joshua Sacramento, CA, Foundation, Legal cific Calderon, Tovah R. Diana Katherine Flynn, M. Samberg-Champion, Sasha Thome, Esq., Depart- Linda Frances U.S. Justice, Eng, ment of Vincent Adrian Center, Asian American Justice Sri Srini- vasan, Hacker, O’Melveny D. & Jonathan L.L.P., Michaelson, Myers, Martin Robert Ginn, US, Hogan David McMiehael Lovells L.L.P., Grossman, Baker & Andrew M. Hostetler, L.L.P., David Charles Freder- ick, Huber, Hansen, Todd, Esq., Kellogg, P.L.L.C., DC, Washington, Figel, Evans & Archer, Director, New Deborah Nicole Smith-Evans, School, York Law Leticia V. Ross, & Educational Legal Deuel Defense Su, Inc., York, NY, Fund, Julie Ann New Center, Legal Los Asian Pacific American CA, Hinojosa, Pe- Angeles, David G. Nina remanded, Legal holding De- Court vacated and rales, Mexican-American Esq., Antonio, Fund, and the district court reviewed San Court Educational fense & Schmauch, Counsel, TX, UT Austin’s means to the end of diverse Elisabeth Alison deference; Arling- body student with undue Rights, on Civil Commission U.S. Fleet, VA, give exacting scrutiny we must a more ton, Allan Nicholas George Van Grimmer, diversity. efforts to achieve Attorney, McDermott UT Austin’s Gerhart Houston, TX, L.L.P., briefing, With the benefit of additional oral Emery, &Will Baruch, argument, exacting and the ordered scruti- Ernest Law Office Charles Baruch, Rowlett, TX, ny, grant Robert Earl we district court’s affirm Chad Boston, L.L.P., Toone, Jr., summary judgment. Foley Hoag, MA, for Amicus Curiae.
I A HIGGINBOTHAM, KING, Before applied to UT Austin for admis- GARZA, Judges. Circuit entering sion to the class of fall 2008.2 resident, Although a Texas she did not THE REMAND FROM SUPREME ON graduate top percent in the ten of her THE OF UNITED COURT *5 qualify class. therefore did not She for STATES Top automatic admission under the Ten HIGGINBOTHAM, PATRICK E. Plan, year Percent which that took 81% of Judge: Circuit the for Texas seats available residents.3 Instead, hol- brought Fisher this action she was considered under the Abigail Austin,1 program,4 past at review which looks against University of Texas istic applicant rank to evaluate each as an University’s that race-con- class alleging on his or her achieve- admissions violated the individual based scious experiences, The district ments and and so became one Fourteenth Amendment. 17,131 applicants5 remaining for the summary judgment to UT of granted court 1,216 seats6 for Texas residents. Supreme Austin and we affirmed. The Aff., C, Fisher, Fisher, Lavergne F.Supp.2d Along Michalewicz was Ex. 645 1. with Rachel Austin; (No. 08-263), originally plaintiff against UT Mi- available at a 587 ECF No. longer party http://www.utexas.edu/studenVadmissions/ chalewicz is no a to this action. research/HB588-Reportl .pdf. J., 2. Defs.’ Summ. Ex. Tab 7 to Cross-Mot. 2,¶ App., Ishop v. Univ. Tex. Aff. at of ¶ Additionally, Ishop Aff. ECF No. 96. Austin, (W.D.Tex.2009) F.Supp.2d at any pro- apply academiс Fisher did not for (No. 08-263), Ishop ECF No. 96 [hereinafter grams special application processes, with Aff.]. program or a Fine such as the Plan II Honors program. Arts Admissions, Univ., of Tex.' at Aus- 3. Office of tin, Implementation and Results the Texas of ¶ Id. 13. (HB 588) Automatic Admissions Law at Demographic at Texas Austin: tbl.2b; Report Top 6. 2008 Ten Percent at 9 id. Analysis Entering Freshmen Fall 2008 and 8,984 Top Table 2 Ten Per- 8 tbl.2. shows Top Academic and Non- 10% Performance were admitted in 2008. The UT cent students Top 2003-2007 Students Academic Years 10% 11), (Oct. 28, 2008) reported of Admissions Associate Director (Report at 7 tbl.la [herein- 10,200 are Report], admissions slots available.for after 2008 Defs.’ ¶ J., App., Ishop Aff. ECF No. 96. Ex. Tab 8 to Texas residents. Cross-Mot. Summ. leadership qualities, extracurricu- Fisher admission. strated Austin denied activities, awards, essays, and lar honors the Associate Director Ishop, Kedra B. service, experience, community and work applica- at the time of Fisher’s Admissions circumstances, special appli- such as the tion,7 “[g]iven the lack explained status, family compo- cant’s socioeconomic in the fall freshman class space available sition, special family responsibilities, Plan, ... on 10% based due to of the applicant’s socioeconomic status school class rank and test high [her] school, high and race.12 No numerical val- scores,” gained not “have ad- Fisher could assigned any compo- ue is ever through process.”8 the fall review mission scores, personal nents of achievement and explained, any applicant who was Ishop As because race is a factor considered through offered admission either unique applicant’s context of each entire through Percent Law or an ex- Top Ten may factor experience, be beneficial (“AI”) ceptionally high Academic Index non-minority student.13 for a through the re- score is evaluated holistic applicants through To admit this holistic process.9 The AI is calculated based view review, generates office an scores, the admissions applicant’s on an standardized test initial matrix for each academic rank, coursework.10 class school AI/PAI program, applicants placed wherein applicants’ review considers AI Holistic groups into share same combina- scores and Personal Achievement Index AI PAI liai- tion of scores.14 School (“PAI”) scores. The PAI is calculated stair-step along sons then draw lines (i) weighted average from score re- matrix, selecting groups of students on the required essays of two ceived each AI and PAI basis of their combined scores. (ii) a achievement sсore based on personal until process repeated pro- This each application, a holistic review of the entire gram admits sufficient number stu- weight slightly being placed with more on dents. In calculating personal the latter.11 *6 score, the con-
achievement staff member Fisher’s AI scores were too low for ad- of the preferred pro- ducts holistic review contents mission to her academic Austin; file, applicant’s including grams entire demon- at UT Fisher had a Liberal J., App., 7. Id. Cross-Mot. Summ. Ex. Tab 3 to 57:1117, Fisher, Lavergne Dep. at 645 (No. 08-263), F.Supp.2d ¶ 587 ECF No. 96 8. Id. 18. Lavergne Dep.]. [hereinafter ¶ 9. Id. 4. J., 12. Defs.' Cross-Mot. Summ. Ex. Tab 1 to 16:15-17:13, App., Dep. at Bremen 18:5— generated by adding 10. Id. V3. The AI score is 44:144:6, Fisher, 19:14, F.Supp.2d 645 587 ("PGPA”) predicted grade point average (No. 08-263), ECF No. 96 Bre- [hereinafter points and the curriculum-based bonus 96; Dep.]; Ishop men Aff.V ECF No. Defs.' ("units plus”). Id. The calculated PGPA is J., App., Ex. Tab 2 to Cross-Mot. Summ. using applicant's an SAT or ACT scores and 22:1320, Fisher, Ishop Dep. F.Supp.2d at plus rank. Id. A units bonus of 0.1 class (No. 08-263), [hereinafter ECF No. 96 points applicant is added to the PGPA if the Ishop Dep.]. took more than UT Austin's minimum requirements school coursework in at least 5,¶ Ishop 13. Aff. ECF No. 96. designated subject two of three areas. ¶ placed The AI on one Id. 14. scores ¶ placed 11. Id. 5. The PAI is calculated as follows: the PAI scores are on the axis and = 2)/2)*3) ((((essay essay grouped PAI score 1 + score are then other axis. Students based score)*4))/7. ((personal -I- Defs.’ on their combination of AI and PAI scores. achievement expense applicants AI refundable faced all a Business of 3.1.15 AI of 3.1 and Arts the seats in the And, nearly all puts because at issue whether Fisher suffered Arts major Liberal undeclared injury.20 monetary students, Top Ten Percent were filled with applicants “were
all holistic review competing and axiomatic Two Freshman Class or eligible for Summer principles govern the resolution of this Program] Admissions CAP [Coordinated First, jurisdiction must exist at question. admission, their AI exceeded 3.5.”16 unless every stage litigation. litigant “gen A if received a Accordingly, even she had erally may subject- raise a court’s lack of PAI she could not have perfect score of jurisdiction any matter at time in the to the Fall received an offer of admission action, initially same civil even class.17 If she had been 2008 freshman if highest appellate instance.”21 Even have been the minority the result would jurisdic challenge “defendants failed to same. prior stage litigation, they tion at a prohibited raising are not from it later.”22 B Indeed, “independent establishment factual reality together with This subject-matter jurisdiction important is so summary judgment developments since party ostensibly invoking [even] Fisher has question call into whether jurisdiction may challenge federal later argues that Fisher standing.18 UT Austin avoiding as a means of adverse results on (i) graduated standing lacks because she the merits.”23 thus university May another from injunctive her claims for rendering Second, rule,” the “mandate a cor (ii) moot,19 there is
declaratory relief doctrine, ollary of the law of the case any use of relationship no causal between “compels compliance on remand with the admis deny race in the decision to superior of a court and forecloses application fee—a non- dictates sion and the $100 ¶ Wildlife, Lujan 504 U.S. v. 15. Id. 18. Defenders of 560-61, 119 L.Ed.2d 16. Id. (1992)). stage, preliminary injunction 17. Id. At the Concerning Appellees' Statement Further suggested deter- that it was unable to Austin Proceedings on Remand at 5. (or Michalewicz) would mine whether Fisher *7 running the have been admitted without re explain, odds of admis- 20. As we will Fisher's Opp. process. Mot. Prelim. entire admissions by were affected the sion 12, Fisher, Injunction F.Supp.2d 587 645 1,200 Plan, which filled all but around seats (No. 08-263), Regardless, EOF No. 42. it incoming Competition the the class. drove summary judgment rec- became clear in the rejection up automatic to a 3.5 AI score. would have been ord that whether Fisher perfect admitted even if she had a PAI score L.P., Grp., Grupo 21. v. Atlas Global Dataflux presented genuine of fact. She no issue 1920, 567, 576, S.Ct. 158 541 U.S. 124 would not have been admitted. The same omitted). (2004) (citations L.Ed.2d 866 Michalewicz, co-plaintiff. then a was true for Co., Inc., Graybar F.3d v. Elec. 669 22. Arena (1) they have 18. Plaintiffs "must show 214, (5th Cir.2012). 223 fact, (2) injury a causal connec- suffered an in challenged injury and tion exists between the ah, Wright, conduct, (quoting Alan et (3) 23. 13 Charles likely a favorable decision is Smith, § 3522 at 12223 Fed. Practice & Procedure injury.” Adar v. 639 to redress the ed.2008)). 146, (en banc) (3d (5th Cir.2011) (citing F.3d 150 640 II expressly impliedly of issues
relitigation court.”24 The by appellate decided question turn to the whether We courts, Court, III like all Article Supreme can remand this case. The we and should obligation to con- independent its own had mandate frames its reso Supreme Court’s the lower fed- jurisdiction, firm and where lution, judgment of the ordering that “[t]he jurisdiction, Su- [the eral court “lack[ed] vacated, and the case Appeals Court of appeal, on jurisdiction preme has] Court proceedings remanded for further consis merits, merely pur- for the but opinion.” tent with this The mandate the error of the lower pose correcting against backdrop must be read of cus suit.”25 entertaining court in appeal courts of discre tom accords court on
tion
remand to
district
standing arguments
Austin’s
receipt
proceedings
of remands to it for
force,26
in our view the actions of
carry
but
opinion
customary
сonsistent with the
—a
do not allow our recon
Supreme
Court
displaced
discretion not
but characterized
Court did not
Supreme
sideration. The
phrasing
in
by nigh
plate
boiler
variations
standing, although it
the issue of
address
of instructions such as “on remand the
”
Rather,
to it.27
squarely presented
was
‘consider,’
Appeals may
or “for
Court
the case for a decision on the
remanded
Appeals
the Court of
to consider
merits,
Justice Powell’s
having reaffirmed
first instance.”30
Regents
opinion for the Court
A
v. Bakke28as read
of California
It
Bollinger.29
v.
Court Grutter
argues
Supreme
Fisher
that the
Court’s
except
affirmed all of this Court’s decision
remanding language
to the liti-
—“fairness
scrutiny.
par
application
strict
gants and the
that heard the case
courts
changes
jurisdic
no
ties have identified
requires that it be remanded so that the
briefing in
occurring
tional facts
since
process can
admissions
be considered
standing is lim
Supreme Court. Fisher’s
judged
analysis”31
under a correct
—com-
injury
alleges
she
challenging
pels
ited to
the conclusion that “fairness” must be
Court,
she suffered —the use of race in UT Aus
having
achieved
and not the
court,
entering
for the
inquiry.
tin’s admissions
district
conduct the
Supreme
Fall
relies on the
statement
freshman class of
2008.
Court’s
265,
2733,
Lee,
(5th
24. United States v.
358 F.3d
321
28. 438 U.S.
98 S.Ct.
57 L.Ed.2d
Bell,
Cir.2004) (citing
(1978).
v.
United States
988
750
(1st
1993)).
F.2d
251
Cir.
29. 539 U.S.
123 S.Ct.
156 L.Ed.2d
Env’t,
25.
Co. v.
a Better
Steel
Citizens for
(2003).
83, 95,
1003, 140 L.Ed.2d
U.S.
(1998).
See,
Line,
e.g., Spector Norwegian
v.
Cruise
Notably,
supplemental briefing
Ltd.,
(5th Cir.2005);
in her
Fish-
427 F.3d
United
argues only
"inju-
er
that she had suffered an
Williamson,
(11th
States v.
that Yet, has offered suffi- support little to each side. this is whether that its admissions telling. cient evidence Had the Supreme Court intended narrowly tailored to obtain the edu- to control the discretion of this to Court as diversity.”32 And cational benefits whether the district court should first ad- argues summary judgment, that at Supreme dress an error that Court that no parties all conceded there were courts, by found was made both there material fact to be re- genuine issues of uncertainty would have been no in the and that the case should be decided solved language. question remand whether summary judgment. on we should remand remains. opposes parsing this of lan
UT Austin guage, arguing that Fisher fails to credit B (i) entirety Supreme of the Court’s remanding There is no clear benefit to spoke, just references which sug- this case to the district court. The allowing this Court to correct fairness more, gestion, discovery without that may error, but also to the fairness to the necessary given Supreme be Court’s court, district which first heard the case holding regarding proper scrutiny and def- for and was faulted the same error as this nothing. Admittedly, erence adds (ii) Court; and, language by that the used Grutter, case differs from in that Grutter Supreme Court is the common lan by went to trial. And evidence offered live guage of remand orders and is often fol likely witnesses is far more to surface and by lowed a remand to the district court. summary judg- resolve fact issues than remanding Austin notes that in its UT ment evidence crafted advocates. But language, Supreme Court cites Ada Indeed, that too is far from certain. UT Constructors, Pena,33 rand Inc. v. where argument Austin’s no than goes further appeals the court of to the dis remanded questions may “factual disputes arise on Supreme trict court after the vacat Court Notably, remand.”34 UT Austin does not judgment appeals ed the of the court of argue necessary. that a trial will be Rath- apply scrutiny. Finally, failure to strict principal target er its on remand is stand- argues Austin the remand lan haunt, ing, questions that continue with to best, and, guage, ambiguous given Supreme but are foreclosed Court’s appeals, custom of the courts of should not implicit finding standing, questions be read to foreclose the clear discretion of it can now address. specific, this Court remand absent con trary Supreme instructions from the find that there are no new issues of We Court. resolved, any fact that need be nor is there customary discovery;
Given the
of the
identified
for additional
practice
need
sufficiently
appeals
developed;
courts of
and the less than clear
the record is
remand,
language
Supreme
Court’s
and that
the found error is common
It
persuaded
Supreme
we are not
both this Court and the district court.
likely
follows that a remand
result
Court intended
foreclose our discretion
would
duplication
deny
to remand to the district court. A review in
of effort. We
UT Aus-
34. Defs.’ Mot. to Remand at 4.
U.S.
L.Ed.2d
(1995).
*9
for the academic de-
remand,
explanation
principled
and turn to the
tin’s motion
cision.”
merits.
Grutter,
the Su-
In both Fisher
Ill
Justice Powell’s
preme Court endorsed
that “attainment of a diverse
conclusion
A
constitutionally
body
per-
...
is a
student
higher
goal for an institution of
missible
remanding,
Supreme
education;”40
in contrast
to “[r]e-
in Grutter
held that
its decision
Court
discrimination, ...
at-
dressing past
[t]he
scrutiny
ap
must be
that “strict
requires
...
body
a
student
tainment of
diverse
using ra
any
program
to
admissions
plied
alone,
classifications”;35
beyond
including
race
serves values
categories or
cial
dialogue
constitutional
classroom
and the less-
“racial classifications are
enhanced
fur
they
narrowly
if
tailored to
stereo-
ening of
racial
isolation and
interests.”36
compelling governmental
ther
of a
types”;
that the “academic mission
Kennedy’s dis
Bringing forward Justice
university
special
is a
concern of the First
Grutter,
Supreme
Court faulted
sent
...
part]
Amendment
business
[and
this Court’s review
the district court’s and
university
provide
to
that atmo-
[is]
of a
per
achieve the
of UT Austin’s means to
sphere
specula-
which is most conducive to
goal
missible
creation,
tion,
—whether
this in
experiment, and
narrowly tailored to
Austin’s efforts were
question
may
of who
be
turn leads to the
body.
a
student
achieve the end of diverse
study.”42
signifies
It
that this
admitted to
charge
give exacting scrutiny
Our
“securing diversity’s
compelling interest
these efforts.
simple
...
an
benefits
is not
interest
diversity,
specified per-
in which a
ethnic
Supreme
has made clear that
Court
body
in effect
centage of the student
judgment
university’s
“a
educational
guaranteed to members of selected eth-
be
to its educational
such
is essential
remaining
groups,
percentage
nic
with the
is one to which we defer.”37 The
mission
aggregation
an undifferentiated
stu-
the educational bene-
pursue
“decision to
43 Rather, “diversity that furthers
dents.”
body diversity
fits that flow from student
encompasses
interest
a
compelling
state
integral to its
that the
deems
array
qualifications
far broader
is,
measure,
an aca-
mission
substantial
characteristics of which racial or ethnic
some,
demic
but not
judgment
which
single though important
origin is but
un-
complete, judicial
proper
deference is
Justice Powell found Har-
Accordingly, a court
element.”44
der Grutter.”38
reasoned,
particu-
vard’s admissions
to be
“should ensure that
there is
Bakke,
Fisher,
2733.
40.
retreated,
Supreme
explained
Court
the means chosen
goal
narrowly
the educational
must
attain
tailored to
329-30,
45.
Id.
50.
Id. at
46.
Id. at
47.
Justice Powell’s
to this
52.
upon
accent
mission at Harvard —one akin to
lives,
aged
shape
an
tradition at Oxford —to
just
fill heads with facts.
53.
Id. at
49.Id.
C current race- adopted before Austin UT Looking program. conscious admissions tailoring requires Narrow argues that the ‘necessary’ year, for a to that Fisher “verify that it is the court Plan achieved a substan- edu Ten Percent had university use race to achieve the African-Ameri- Hispanic a tial combined and diversity.”58 Such cational benefits 21.5%;64 approximately in can enrollment of judicial a “careful requires verification is more enrollment university a could and into whether quiry Grutter, where a race- using present than without achieve sufficient Thus, grew minority enrollment plan the review conscious racial classifications.”59 14%. Because approximately from 4% to “ultimately be satisfied ing court must already enrolling larger alternatives UT Austin was race-neutral no workable Michigan than the percentage of minorities the educational benefits produce would maintains, School, follows, therefore, argument that if Law diversity.”60 It diversity to had achieved sufficient promote ... could Austin approach “a nonracial diversity, and attain the educational benefits interest about as well the substantial mass, race- adopted critical it ... then the univer before expenses, at tolerable if policy; that even race.”61 And it is conscious admissions sity may not consider added). (emphasis 60. Id. Id. at 2420. 55. (internal quotation and citations Id. marks
56.
(quoting Wygant
Bd.
61. Id.
v. Jackson
omitted).
Educ.,
6,n.
476 U.S.
(internal
(1986)
quotation
sufficient
single
2007 to all but the
dimension of
had been achieved
class
rank,
Hispanic
Ten Percent Plan came
percentage of
with
when the combined
significant
costs to
African-American enrolled students
academic
Thus,
integrity, passing
large
race-
over
argues,
numbers of
25.5%.
was
highly qualified minority
non-minority
a de min-
policy
admissions
had
conscious
effect,
African-
adding
applicants.
at most
0.92%
difficulties of Texas’s and
imis
Hispanic
percentage plans
and 2.5%
other states’
did not .es-
American enrollment
*12
Gruttеr,
enrollment;
cape
is
the
in
slight
explained
that a
contribution
Court
which
“constitutionally meaningful” impact
assuming
plans
“even
such
are race-
not a
neutral,
body diversity
they may preclude
university
and is no more
the
on student
engi-
conducting
from
the
gratuitous
than an exercise in
racial
individualized assess-
ments
to assemble a student
neering.
diverse,
body
just racially
not
but
inquiry clings
to truncate the
This effort
along
qualities
by
diverse
all the
valued
crops
to a baseline that
events Fisher’s
university.”66
the
it must. The true narra-
ignores,
claim
as
a
fair
Nor
presents
completeness
escape
tive
with
both
did these difficulties
the
compelled by
Supreme
legislature. Opponents
pro-
the
Court’s Texas
to the
charge
posed plan
policy
to ascertain the facts
full without
noted that such a
“could
deference,
actually harm
exposing
argu-
the de minimis
institutions” and “would not
tailoring
problems
by [Hop-
an effort to turn narrow
solve the
created
ment as
legislature adopted
to that narrative. wood
So the
a
upside
].”67
down. We turn
Plan that
Top Ten Percent
left a substan-
B
complementary
tial number of seats to a
process. Foreshadowing
holistic review
1997, following
Hopwood
In
the
v. Tex-
Grutter,
supplementing
Top
admission
decision,
nearly
a
as65
UT Austin faced
Ten Percent Plan included factors such as
problem: achieving diversity—
intractable
diversity
family
socio-economic
edu-
racial
to
including
—essential
but,
by
cational achievements
controlled
mission,
facially
educational
while not
con-
it did not
include race.
Hopwood,
many compo-
sidering race even as one of
short,
process
a holistic
sans race con-
diversity.
any
nents of
Forbidden
use
gate
large percent
trolled the
for the
Hopwood,
of race after
Austin turned
UT
applicants
entering through
Top
Plan,
Top
guar-
Ten Percent
which
succeeding
Percent Plan.
Ten
Over
in the
graduating
antees Texas residents
Plan took an
years
top
percent
ten
of their
school class
seats,
increasing number of
a take inher-
any
university
in Tex-
public
admission
a
centerpiece
ent
its structure and
pro-
as. Such a mechanical admissions
tailoring,
explain.
as we will
narrow
every
gram could have filled
freshman seat
standing
but
alone was not a workable
C
achieving
means of
envi-
Bakke,
bypassing
high-
response
sioned
as it did
We are offered no coherent
students,
validity
potentially
multi-talented
minor-
of a
different elec-
performing
27, Fisher,
J.,
(5th
1996), abrogated by
Summ.
Ex.
65.
75. Summ. Defs.' Cross-Mot. Ex. Tab 4 to 15:17-21, Fisher, App., Dep. Orr ¶ (No. 08-263), F.Supp.2d 587 ECF No. 96 82. Id. 11. ¶ 6, Dep.]; Aff. [hereinafter Orr Orr ECF No. 96. 83. Id. 8,¶
76. Orr Aff.
ECF No. 96.
84.
Id.
¶
77.
Id. 9.
E
targeted
students
from
Day,” wherein
day at
spend the
UT Aus-
schools would
Despite
rapid adoption
UT Austin’s
the admissions office would
Finally,
tin.85
efforts,
these race-neutral
in 1997—the
Saturday Events” on
“Longhorn
hold four
Hopwood
first freshman class after
—the
campus,
prospective
where thousands
percentage of African-American admitted
come to
and their families would
students
3.41%,
from
repre-
students fell
4.37%
UT Austin.86
senting
drop
from 501 to 419 students
even as the total
stu-
number
admitted
to the admissions office’s
addition
dents increased
833 students.90 Simi-
efforts,
Fi-
Austin’s
of Student
UT
Office
larly,
percentage
Hispanic
admitted
their outreach
nancial Services increased
fell
students
from 15.37%to 12.95%.91With
together the Financial
by putting
efforts
facially
Austin’s
race-neutral admis-
high schools to
Group
Aid Outreach
to visit
efforts,
sions
and outreach
help prospective students “understand
percentage of African-American and His-
support
financial
offered
Aus-
[UT
panic
eventually
admitted students
recov-
goal
of this Financial Aid
tin].”87
pre-Hopwood
By
ered to
Af-
levels.
in-
Group
to convince low
Outreach
“was
rican-American admitted students climbed
money
that
should not be a
come students
Hispanic
to 4.82% and
admitted students
college.”88
attending
barrier to
But minority repre-
climbed
16.21%.92
tailoring
largely stagnant,
“Narrow
does not re
sentation then remained
band,
every
oscillating
race neutral al within a narrow
rather
quire exhaustion
ternative,”
“serious, good
moving
but rather
faith than
towards a critical mass of
race-neutral al
students. The hard data
consideration of workable
show
starting in
moving
ternatives that will achieve the
1998 and
toward
Put
university
simply,
seeks.”89
African-American students
com-
3.34%,
4.32%,
4.24%,
implemented
prised
record shows that UT Austin
then
then
then
3.49%,
3.67%,
3.89%,
every
finally
detrac
then
then
race-neutral effort
prior
pool.93 Similarly,
tors now
must be exhausted
to 4.82% of the admitted
insist
adopting
pro Hispanic
represented
a race-conscious admissions
admitted students
13.53%,
14.27%,
13.75%,
then
then
then
gram
addition to an automatic admis
—in
14.25%,
14.43%,
15.60%,
then
then
and fi-
plan
required
sions
under Grutter
nally
entering
16.21% of
classes for
body
admits over 80% of the student
with
respective years.94
no facial use of race at all.
those
¶
Hispanics represented
Id. 1618.
91.
13.53%
1998;
entering
of the class of
class
14.27%
¶
Id. 19.
*16
1999;
2000;
of the class of
13.75%
14.25%
2001;
the
of the class of
class
14.43%
¶
87.
Id. 12.
2002;
2003; and
of the class of
15.60%
88.
Id.
for 2004. See id.
16.21%
Grutter,
339,
89.
90. Ten 4 See 2006 Percent tbl.l. comprised African-American admits Id. 3.34% 1998; entering the class of of the class 4.32% 1999; 2000; of the class of 4.24% 3.49% 2001; 2002; the class of of the class of 3.67% and of the 2003. See id. class of 3.89%
650 students admitted under attained Texas
V of a holistic review or on the basis A only among A stu- gap persisted AI.96 aside, Top Ten Percent Numbers students, also overall and white but dents upon a distinct admis- dependence Plan’s minority stu- among racial and ethnic apparent. With each sions door remained reality in the dents.97 This inheres class, gap there was a between entering Plan strength Top Ten Percent scores of stu- lower standardized test weakness, its also one with Percent Top admitted under the Ten dents makes it un- single dimension of selection higher scores of those admit- Plan and the standing alone. workable in example, under holistic review. For ted year applied for admis- 2008—the B to Texas of the seats available sion' —81% Top truth Ten Per- The sad up by Top taken Ten residents were diversity from a fundamen- gains cent Plan Top Plan.95 These Ten Percent Percent secondary in edu- tal weakness the Texas average test had an standardized students segregation facto 1219, system. cation The de points lower than the score of 66 Top enables the Ten test score of 1285 of schools Texas98 average standardized 2006; 2005; Report versus 1086 in Top Ten Percent at 9 tbl.2. 1118 1067 95. 2008 id. at 1415. 1078 versus 1073 in "2007. See рreceding years comparison for the showed a And a of raw SAT scores does not 96. Id. Data entering gap. story, For the Texas SAT are scaled. similar test score tell See, full scores 2007, SAT, Top e.g., CollegeBoard College- had class of Ten Percent students 2006 Group Report average standardized test score of 1225 Bound Seniors: Total Profile an (2006), average http://media.collegeboard. test standardized score available at versus by non-Top com/digitalServices/pdAresearch/cb-seniors Ten Texas 1246 attained Percent 2006, Similarly, Top Looking per- at 2006-nationalreport.pdf. Ten Percent students. average point gives picture. an standardized test For SAT students had centile better 2006, average percentile of 1220 versus an standardized test-takers in the 50th com- score non-Top percentile for Ten Percent bined score was while a 75th test score of 1257 higher. Top points students students. For Ten Percent score was a mere 160 Thus, average points, an standardized test score of Id. at 2. a score differential of 80 had average represents approxi- example, versus an standardized test for which non-Top Percent stu- score of 1277 for Ten mate differential between holistic review admittees, Finally, Top Hispanic repre- Ten Percent stu- dents. average scoring approximately a dents had an standardized test score sents students 12- average higher percentile. versus an standardized test of 1221 non-Top Percent stu- score of 1258 Ten example, only 98.For of all students in 8.1% dents. Id. Indep. Houston ISD are white. See Houston students, Dist., Figures Sch. 2011-2012 Facts and 97. Id. at 13-15. For (2012). Similarly, only average scores of students in difference in standardized test 4.6% Independent District are admitted Texas Percent stu- the Dallas School between Ten Dist., Indep. non-Top white. Dallas Sch. Enroll- Ten Percent students fluct- See dents (2012). Antonio significant in the ment Statistics And in San uated in size but remained ISD, only post-Grutter years leading up of the students are white. See pre- and to Fish- 1.9% students, Dist., Fig- Among Hispanic Indep. Sch. Facts and application. San Antonio er’s 2003; (2012). segregation gap ures This de facto school was 1100 versus 1189 in 2004; patterns *17 from residential and means 1189 in 1122 versus 1193 in stems versus 2005; 2006; percent highly top in the ten of a 1154 in and 1115 that students 1105 versus segregated likely grew up school in same 1155 in 2007. For African-American versus students, top graduates from gap in residential zone. The 29 was 1063 versus 1065 2004; 2003; High School in Houston live in the in 1059 versus Jack Yates 1046 versus 1116
651
proceed only
in
claim can
if
minorities
Fisher’s
Texas
Plan to increase
Percent
accept
Top
this weakness of the
Ten
must
mix,
contributions to diver
ignoring
while
inability
Percent
and live with its
assume,
Plan
аs none
sity beyond race. We
beyond
upon
look
class rank and focus
otherwise,
“segre
that this
here contends
Perversely,
individuals.
to do so would
... of state
‘product
not the
gation [is]
system
in
put
place
quota
pretextually
choices,’ having no
private
action but of
”
race neutral.
Ten
While
Percent
implications’ and therefore
‘constitutional
minority
by
Plan
enrollment
skim-
boosts
branches
question
political
it is “a
for the
schools,
ming
tops
high
from the
of Texas
say
manner —which is to
]
decide!
against
backdrop
it does so
of increas-
short,
its resolution.”99
process
—of
ing
resegregation
public
Texas
directly relevant
demographics
these
schools,101
Hispanic
where over half of
stu-
political
to the choices made
dents and 40% of black students attend a
they
against
Texas as
acted
branches of
school with 90%~100%
enroll-
reality
backdrop
unchallenged
of this
ment.102
a diverse student
their effort to achieve
year
Data
body.
graduated high
Texas is here an active lab of ex
for the
gaps
quality
the Court
school show
between the
perimentation embraced
Schuette v. BAMN.100We reference here
education available to students
inte-
high
majority-minor-
unchallenged
resegregation
grated
these
facts of
schools and at
justification
remedy,
ity
impact upon
not in
of a racial
but
schools are stark. Their
makeup
because the racial
and relative UT Austin is direct. The
performance
high
heavily
population
of Texas
schools
on Plan draws
from the
bear
workability
any
major
of an
concentrations of the three
alternative
use
metro-
Antonio,
politan
areas of
race
80% student admissions
Texas—San
.to
Houston,
opted
political
UT Austin.
branches
Worth —where
Dallas/Fort
half of
facially
for this
race-rieutral alternative —a
over
Texas residents live and where
tailoring
implementation
segregated
narrow
of their
the outcomes
gaps
urban
goal
diversity.
pronounced.103
schools are most
The San
predominately
neigh-
mographics
Grp.,
same
African-American
Research
Weldon Ctr. for
Ward,
Serv.,
Va.,
city’s
borhood of that
Third
and thus
Public
Univ. of
2010 Racial Dot
2013),
likely experienced
Map, CooperCenter.org (July
http://
a similar cultural environ-
Family
demographics.coopercenter.org/DotMap/
ment. See Amicus Curiae Br. of the
(Oct.
2013)
Heman Sweatt
at 27. This
index.html.
pattern repeats
itself across the
schools
Orfield,
Gary
John Kucsera & Genevieve
102.
of Texas's urban areas.
Siegel-Hawley,
Rights Project,
Civil
E Pluri-
BAMN, - U.S. -,
Separation:
Deepening
v.
bus ...
A
Double
Schuette
134 S.Ct.
1623, 1642,
(Scalia,
(2012),
(2014)
Segregation for More Students
50
are C high The school African-American.116 graduation of 2008 attained a senior class UT Austin’s holistic review —a an average rate of 88.7% and SAT score of program nearly indistinguishable from the in college-ready and 53% were both University Michigan of Law pro- School’s English nearby and Math.117The data for in gram Grutter —was a and en- ISD, largest one of the in the state Dallas abling component of the Top Ten Percent 157,174 7,308 high and with students Plan allowing UT Austin to reach a seniors,118 highly segregat- school shows a pool minority of non-minority and students There, ed school in stark contrast. black achievement, personal with records of Hispanic up and students make 90.9% of scores, higher average unique test or other class, graduating and 86.1% of all stu- variety skills. A of perspectives, that economically disadvantaged.119 dents are in experiences, differences life is a distinct school; Only high graduated 65.2% SAT diversity. and valued element of aYet average test-takers achieved an score of significant excelling number of students in 856; graduating 29% of seniors high-performing schools are passed over college-ready English were in both and by Ten although Percent Plan Math.120 they bring could perspective a not cap- tured along admissions the sole dimen- top high decile of schools in each of sion example, expe- of class rank. For including large these numbers districts — rience of being minority majority- a in a highly segregated, students from under- mаjority-minority white or school and suc- funded, underperforming schools—all ceeding in that a rich environment offers qualified for automatic admission to UT pool potential Austin with UT students Austin. That these students were able qualities leadership demonstrated excel in the face of limitations in severe sense of self. Efforts to draw from this high their school education and earn a pool potential do not demean the coveted place prestigious UT Austin’s it complements Ten admittees. Rather freshman class is to be commended. That diversity mitigating their contribution to — other students are left out—those who fell important way an the effects of the top percent outside their school’s ten single process. dimension in unique ways but excelled that would persuades enrich the Austin’s edu- UT Austin this reach a further experience gap applicant pool cational an into the is not —leaves process seeking admissions to create the search for numbers but search sta- 11 8. System, System, Academic Indicator Dal 115. 2008-09 Indicator Kel- 2008-09 Academic II, ISD, ISD, II, Agency, § § ler Tex. Educ. at cover Agency, at 1 [herein las Tex. Educ. Indicator], http:// Indicator], Keller [hereinafter ISD http://ritter.tea. after Dallas ISD ritter.tea.state.tx.us/perfreporl/aeis/2009/ state.tx.us/perfreporl/aeis/2009/district.srch. (accessed by searching for district.srch.html (accessed by searching for the relevant html en- the relevant school district on search engine). school district on the search gine). 119. Id. §11, id. at 1. I, I, § § 120. Id. at 11-12. id. at 1112. backgrounds acknowledge talents and refuses unique this distinc- dents diversity of the student tion between critical tipping mass—the who can enrich scores, point of ways including quota. test body in distinct And —and *20 seeking quantify to “critical and preparation of mass” higher levels predicting as a rigid goal, numerical Aus- Fisher to UT misses for admission the prospects better mark. is correct that if colleges and ulti- UT Austin demanding more tin’s goal diversity by defined of the num- signifies that It also mately graduation. only, the Plan Top bers Ten Percent could highly competitive a a draw from this is calibrated to that mark. To do non-minority be meet of a mix pool, so, however, deny would the role of holistic otherwise be absent who would students necessary as a complement on review to pool Top selected Top Ten Percent from Ten Percent rank, indepen- persuad- an admissions. We are a relative and not class that ed holistic review is a com- pool applicants. the measure across dent Plan, plement Top to the Ten Percent it enabling operate reducing to without VI quota to a for a in system; itself cover thаt highlight realities the diffi These so, doing its limited use of narrowly race is couch approach an that seeks to culty of to part tailored this role—as small a as of critical mass within numeri concept for the Plan to succeed. possible support Aus terms. The numbers cal race that its holistic use of argument tin’s A quotas is not about pursuit in upon its focus indi targets, but about Top dynamic, Ten The Percent Plan is viduals, by Top an denied opportunity floating year year to its take with the critical Achieving Plan. Ten Percent high of Texas in graduates number school astray diversity goes requisite mass percent ten of their that top class to numerical metrics. UT when it drifts capitalize on their automatic ad- choose that urges that it has made clear Austin flagship university. to the Its im- mission numbers, relevant, has not looking to while incoming pact composition on the of each success; and that its been its measure dramatically, grown predictably class has by ra goals captured population are not seats leaving ever fewer holistic review proved, contention tios. We find this growing demographic available for the 2011, by high Texas school mindful that 1996, In graduates. Texas school graduates majority-minority. were intro- Top Ten Percent Plan was when duced, incom- in it admitted 42% of the Texas urges step its first UT Austin class; plan ing by over when Grutter tailoring narrow was the admission of introduced, occupied Plan 69% of facially was though 80% of its Texas students residents; by to Texas em- the seats available process, race-neutral Fisher’s admission, for applied Percent when Fisher sweep Top brace of the of the Ten increasing had swelled to 81%.121 Plan a full achievement of Plan both game Top take of the Ten Percent reduces critical mass to a numerical strengths and exacerbated its quotas. enhanced its and little more than a cover for 2006; 2005; 2004; in in Percent Plan admit- in 68.7% 71.4% Ten 2007; 2006 in 2008. See incoming in ted class of Texas 70.6% 80.9% 41.8% (data 1997; 1998; for students; Report at 5 tbl.la in in 36.6% 41.1% 2000; 1996-2005); 1999; years Top Ten Percent Re- 2008 in in 51.3% 44.9% 2001; 47.4% (data 2006-2008). 2002; 2003; port tbl.la 70.4% 66.3% 54.4% composing the UT Austin restricted automatic admissions to inherent weaknesses top 7% for Fall 2014 and Fall 2015 overwhelming majori- body, student as the Fall applicants, top 8% for 2011 and ty granted of seats was students without Fall applicants, top and to the 9% for the facial use of race but also without Fall applicants.124 All remaining experiences beyond consideration of a sin- through slots to be filled continue holistic gle academic So as the take of dimension. entering review.125 For the class Top Ten Plan grew, Percent so also the first affected SB 74% of en- necessity complementary did the of a holis- rolled Texas residents were automatically tic admissions to achieve the di- (with a higher percentage admitted of of- versity envisioned Bakke. admission), figure again fers was *21 quick glance A in of public the record upward by pushed population inherent data since 2008 confirms that UT Austin’s forces, to 77% for the entering Texas class race-conscious holistic review has of 2013.126 nature, self-limiting comple- a one that In growing the shadow of the Top Ten ments of periodic UT Austin’s review the Plan, cautious, Percent there was a creep- program’s necessity to ensure it is limited ing numerical increase in minority repre- 2009, in time. For the entering class of following sentation the inclusion of race year applied after Fisher for admis- ethnicity in the holistic pro- review sion, Top Percent Ten Plan’s take of testament, gram, a says, UT Austin to its the seats available for Texas residents race-conscious holistic review. We must swelled to 86% and in remained at 85% agree. 2004, From facially the last race- 2010.122 neutral program year, holistic review This trend did not escape the Texas 2005, year the first ethnicity that race and Legislature. long- Consistent with its considered, were percentage of Afri- standing view of holistic review as crucial can-American students admitted to UT complement Top Plan, to the Ten Percent Austin climbed from 4.82% to 5.05%. The passed Texas Bill Senate 175 of the 81st since, trend has continued climbing to (SB 175) Legislature Texas in 2009. SB 2006, 2007, 5.13% in in 5.41% and 5.67% in Top 175 modified the Ten Percent Plan for Similarly, 2008. percentage Hispan- of UT Austin to authorize University “to ic admitted students climbed from 16.21% limit automatic admission to no than less 2004, 2005, 2006, to 17.88% in 18.08% of capacity 75% its enrollment for first- 19.07% in 20.41% in 2008.127 undergraduate time resident students be- The modest numbers validate the tar- ginning with entering admission for the geted role of UT use of Austin’s Grutter. ending class of 2011 and entering with the they Nor can be a pretext viewed as class of 2015.”123 Pursuant to quota seeking SB UT assertion of Fisher’s —an Admission, Top Report See 2010 Ten Percent at 8 124. Automatic Univ. of Tex. at tbl.la. 16, 2013, PM), (Sept. http:// Austin 2:56 bealonghorn.utexas.edu/freshmen/decisions/ Powers, Jr., 123. William Univ. of Tex. at Aus- automatic-admission. tin, Governor, Report to the the Lieutenant Governor, Speaker and the the House of Representatives Implementation on the SBof (Dec. 2011) at 4 [hereinafter Report 126. 2013 Powers at 29 tbl.4.1. Report], https://www. Powers available utexas.edu/student/admissions/research/SB_ 175_Report_for_201 l.pdf. Report 127. 2008 Ten Percent at 6 tbl. 1. envisioned Bakke and a that over this time reality belied rejected. em- school sen- measure it Texas graduating frame majority-minority. there were African-Ameri- being phasizes, 5.8% approached iors students, еxceed critical Hispanic increases do not can and 19.7% enrolled The small bring pre-Hopwood but instead levels and the imply quota mass nor which exceeds minority enrollment at distinct dimension sure, Plan. To be critical mass in Grutter. Michigan Law School examined exclusively quotas a cover for can be used as But an examination that looks it fails goals, but is not inevit- proportionality percentage minority at the students able; Indeed, persuades Austin viewed it begins. before Grutter structure, teaches, in a objectively, under its its efforts an emphasis on numbers simply have not been the most process holistic review mechanical admissions but rather expand the numbers the diver- because pernicious discriminatory acts sity alone, minority of individual contributions. stu- treating looks to race repre- fungible dents as commodities Turning opposite direction from Critical single viewpoint. sent a quotas, her claim of racial Fisher faults mass, diversity, has no tipping point holistic use of race for its de UT Austin’s application, fixed of universal upper bound *22 diversity. UT minimis contribution minimum at which nor is it the threshold tai- that this turns narrow replies Austin or minority students do not feel isolated agree. Holistic down. We loring upside for their race. Grutter spokespersons like overwhelming of an review allows selection by mass reference to critical defines by facially neutral of students number diversity by rather than broader view race is and for the remainder measures of mi- quota of a certain the achievement on Fisher’s focus only a factor of factors. Here, has UT Austin nority students. minorities admitted the numbers goal of achiev- permissible demonstrated a to those gate the holistic relative through educational benefits of ing the through Top Ten Percent admitted mission, university’s that distinct within flawed, role as a neces- ignoring Plan is its minority stu- seeking percentage not apt the Plan. The sary complement arbitrary size. that reaches some dents to the richness question is its contribution by against Bakke as envisioned holistic Implicitly conceding the need for Plan. backdrop Top review, disad- Fisher offers socioeconomic by palliative role claimed That is its a race-neutral alternative vantage as viewed, low holistic review’s Austin. So points to holistic review. UT Austin wide- strength, is its not production of numbers scholarly concluding that ly accepted work its weakness. many six times as white “there are almost as black students who both come students sum, to the numbers points Fisher [socio-economically disadvantaged] from that race- nothing arguing more in that are families and have test scores longer no nec- consсious admissions were gaining threshold for admission above the minori- essary because a “critical mass” of uni- academically college selective at an by had achieved the time ty students been bottom, argument At versity.” for admission—a head applied minority disadvantaged are that that students by count skin color or surname is not (1998)). Appellee (citing River Supp. Br. of at 30 Wil- Bok, Shape liam G. Bowen & Derek in- explained seats. As we have class, race; and as shown the socioeconomic by in Appendix increasing Bakke race. take of the proxy for is a neutral quiry Top Ten inherently disad- Percent Plan is matters —it self- color that skin accepts limiting. relevant but it UT Austin has not be demonstrated ought vantages that it is on a race, path year out each to sort reduces ill-equipped are is. We structures, the role of race. After Ten Per- class, and socioeconomic cent Plan swallowed 81% of seats avail- to do so. To the not undertake Bakke did able for Texas students in for exam- disentangle ill-equipped point, we ple, white Texan students admitted is no that skin color them and conclude through holistic occupied review an addi- that we prejudice; index of longer an tional 12% of the Only overall seats. 2.4% make it so. it does not will would and 0.9% of the incoming class of Texas are satisfied UT Austin has We high school graduates were Hispanic and demonstrated race-conscious holistic black students through admitted holistic review to make Ten is, review. That admission via the holistic Plan by Percent workable patching the review program overwhelmingly and dis- — holes that a mechanical pro- admissions proportionally of white highly students —is gram leaves in ability to achieve the competitive for minorities and non-minori- rich diversity that contributes to its aca- ties These persuade alike. data us of the demic mission—as described Bakke and force of UT argument Austin’s that a limit- Grutter. ed use of race is necessary to target mi- unique norities with talents and higher test B scores to add the diversity envisioned history review, Over the of holistic its Bakke to body. the student intake declined, of students has *23 (cid:127) Numbers are not controlling they but non-minority, and changed profile are relevant to UT Austin’s claimed need of the students it growing admits —the for holistic review as a necessary compo- number of applicants and increasing take nent of 2005, its admission program. In Top of the Ten Plan raises the Percent the first class included race and eth- competitive year, bar each before race is 176(29%) nicity review, in holistic of 617 considered, ever for the decreasing num- total African-American admitted students ber of by seats filled holistic review. were admitted via holistic Fol- review.129 Those admitted are those that otherwise similar, lowing years were with of 32% would be missed in the diversity mix—for admitted African-Americans in 35% example, special beyond those with talents Likewise, and 20% in 2008.130 rank class and identifiable at the admission significant percentages Hispanic of admit- gate, and experience minorities with the of ted students through were admitted an attending integrated school with better program, holistic review making up 24% of educational resources. Hispanic pool the admitted 26% in
The data also show that white students 25% in and 15% in 2008.131 overwhelming majority awarded the directly of These support numbers Aus- UT the highly competitive holistic review tin’s contention that holistic use of race Top Report 129. See 2008 Ten Percent at 8 tbl.2 Id. (providing percentage of students admit- through Top ted by Ten Percent Plan background). racial and ethnic it to of enabling role numbers. It precisely opposite.
plays a admitting upwards repeat, diversity while We holistic review’s achieve search is for by facially Bakke, diversity, by students Texas as envisioned of 80% of its one ben- standards, drawing as it does from attendant mitigation neutral efit of which is its of by rank in solely class pool a not measured clustering tendencies of the Ten segregated schools. largely Plan. Percent that, necessary, even if responds Fisher
C
narrowly
UT Austin could never
tailor a
AI threshold that exclud-
Recall the 3.5
program that
diversity.
achieves classroom
colleges
for the
Fisher. Holistic review
ed
In particular,
suggests
it is
ap-
only admitted
applied
to which Fisher
impossible to obtain classroom-level diver-
a
non-minority
or
plicants minority
—with
—
sity without some sort of fixed curriculum
effectively
This
AI score of 3.5.
minimum
major-level
or
or lower school-
standards.
applicants from
pool
mix a
of
added to the
again
misses
argument
This
the mark
students
colleges could admit
which those
diversity only by numbers.
defining
pre-
higher
and a
higher test scores
with
point
that the end
suggest
Austin does
being
performance, despite
dicted level
specific
is a
measure
of this exercise
class,
of their
top
percent
outside the
ten
every major.
every
class
of talents.
part
greater
of a
mosaic
Instead,
are relevant but
measures
such
dispersion minority
stu-
Insofar as some
a
signals of want
not determinative
many
programs
classes and
among
dents
diversity.
needed for
array of skills
realizing the educational
important
words,
body
diversity in the student
other
holistic
diversity,
race-conscious
benefits
of intra-class-
surely produces
degree
necessary complement
review is
intra-major diversity, with
room and
high-
Plan
giving
recog-
and laudable” benefit
“important
chance
scoring minority students
better
of “classroom discussion
nized in Grutter
to UT Austin’s com-
gaining
admission
livelier,
simply
spirited,
more
[being]
Fisher’s
departments.
academic
petitive
interesting when
enlightening
more
for UT Austin’s more
proffered solution is
possible
greatest
have the
the students
to lower
competitive
programs
academic
the hol-
When
variety
backgrounds.”132
gates.
misperceives
their
But
to be
was modified
istic review
the AI threshold for admission
source of
*24
or
race-conscious,
had one
90% of classes
colleges:
pro-
These
competitive
into the
students,
had
46%
zero African-American
pool
their seats from the
grams fill 75% of
students, and
zero Asian-American
one or
automatically admitted under
of students
Hispanic students.133
43% had one or zero
large
The
num-
Top Ten Percent Plan.
degree of
decreasing
a
represented
This
competing
review candidates
ber of holistic
dispersion since
minority classroom
remaining
seats
quarter
for the
Top Ten Percent Plan.
adoption of the
AI threshold that all
high
dictates the
that there will be some
This does not mean
non-minority—
or
applicants minority
—
nucle-
African-American
percentage
set
of
for admission. Fish-
qualify
must meet to
mean
majors. But this does
physics
ar
dispersal across
points
er also
to weak
that Afri-
effort to ensure
that UT Austin’s
pursuit
Austin’s
classes as evidence UT
J.,
Ex.
Grutter,
Summ.
Tab
133. See Defs.’ Cross-Mot.
this record. Her refuses to ac- VII cept the admission of over 80% its Texas students without facial consideration of Plan, Interlacing Top any part race as tailoring, narrow dependence upon with its segregated critically refuses accept process that the enrollment, produce minority schools to adopted for the remaining 20% is essential. plan with a that did not race consider until It rests on premise the untenable that a it had a applicants clearing universe of Grutter plan for 100% of the admissions is high hurdle of demonstrated scholastic preferred. be UT Austin’s efforts to performance strongly supports Aus- achieve without facial consider- packaging tin’s assertion that its two race, ation of its tailoring narrow of its necessary pursuit diversity. was in its process, admission country’s one of the product This hurdle is a growing of a states, largest tеmplate offers no for oth- number of applicants competing for an ers. ever-shrinking number of holistic review seats, creating competitive one of the most processes country.
admissions
in the
And
VIII
deployed
when race enters it is
in the
sum,
it is suggested that while holis-
holistic manner of
as a
Grutter
factor of
tic
may
review
be a
and amelio-
factor.
minority
Even then the
student
rating complement to the Top Ten Percent
that receives some boost for her race will
Plan, UT Austin has not shown that
competition.
have survived a fierce
These
holistic review need
any
include
reference
sense,
minorities are in a
along
real
with
race,
produces
this because the Plan
universe,
the non-minorities of this
over-
sufficient numbers of minorities for critical
facially
looked in a
neutral
Ten Per-
mass. This contention views minorities as
cent Plan that
considers
class rank.
a group, abjuring
upon
the focus
individu-
While outside the
Ten Percent Plan’s
person’s unique potential.
als—each
Race
reach, they represent
high
both
scholastic
minority
non-minority,
is relevant to
potential
majori-
achievement
notably when candidates have flourished
ty-white schools.
are persuaded
We
as a
in their school—whether
their
directly
absence would
blunt efforts
they are white or black. Grutter reaffirm-
for a
body
student
with a rich
“[j]ust
growing
ed that
inup
particu-
experiences.
talents and
region
having particular
lar
professional
experiences
likely
“Context matters when review
an
to affect
individu-
views,
own,
ing
governmental
race-based
action under
al’s
too
unique
so
is one’s
Clause,”134
*25
Equal
Protection
and
experience
being
minority
UT
of
a racial
in a
own,
Austin’s
program
unique
society,
admissions
is a
like
our
which race still
scrutiny
creature.
must take rel
persuaded
deny
“[S]trict
matters.” We are
that to
“[i]ndeed,
evant differences into
UT Austin its limited use of race in its
account”—
as
explained,
Court
that
[the
has]
is its
search for holistic
would hobble
Grutter,
(internal quotation
the richness of race seats starting of in the annual plain teachings places in contradiction equally It is flagship university. need for such in its Bakke and Grutter. as may that universities use race complement the draws from settled sets to skill majority-minority part of a holistic admissions and majority-white it cannot otherwise achieve diversi- directly from an understand- where flows schools compelled by the reali- plain ty. made This interest is ing what the Court has of university more the ty education is diversity is not. To conclude otherwise of heads tally shaping filling a of skin colors of lives than the to narrow its focus to hu- Kennedy’s classic assertion of the of Justice with facts—the produced defiance backdrop Yet of our efforts which eschewed the manities. opinion for the Court reality accepting as of numbers and turned the here includes narrow metric policies purpose whose upon powerful permissible individuals. This focus deny of a desired racial effect taxes charge does not the relevance achieve of argument quotas in the and holistic use race. We find force line between necessary part, a albeit one of race towards a critical mass. We have race here is here, by persuaded the decisional matrix where hewed this line UT many parts, of minority-majority in a school Austin from this record of its being white apart just being process use of race a holistic and can set one majority-white proffer school—not a want of workable alternatives that would race, justification faith- require greater of societal discrimination in even use of race, given for use of but a search for students ful to the content Su- skills, experiences, preme reject of To Austin range with a Court. impaired plan developing principles that will be is to confound performances —one action, eye looking away by turning differing a blind neutral affirmative Grutter, leaving the schools from Bakke and them in opportunities offered from they came. uniform but whence without command—due courtesy in passing. salute It is settled that instruments of state may pursue facially policies reasons, neutral calcu- we For these AFFIRM. promote equality opportunity lated to
among public Appendix students to whom the Top Non-Top from the 2006 anee Students 136. Data for 19962005 comes 10% 10% 10), Top Report 7j. at (Report Ten Percent 1524 tbl.7a Years 2002-2006 at 20 Academic (Oct. 28, Data for 2006 comes from the 2007 Ten 2007), http://www. at tbl.7e available Admissions, Report. See Office of Percent utexas.edu/studenVadmissions/research/HB Austin, Implementation at Univ. of Tex. 588-Reportl0.pdf. Data for 2007 comes from Results the Texas Automatic Admissions Report at 16 tbl.7. the 2008 (HB 588) Law at the Texas Top Ten Data for 2008 comes from the 2009 Demographic Entering Analysis Austin: Report Percent at 15 tbl.7. Freshmen Fall 2007 and Academic Perform- *26 Appendix 1136
Appendix
Appendix 2137
GARZA,
its consideration of
Judge,
argument
M.
tor’s
EMILIO
Circuit
dissenting:
narrowly tailored to achieve its
race is
v.
Tex. at
goals. Fisher Univ. of
vacating
previous opinion,
our
—
Austin,
-,
U.S.
Austin,
Tex. at
v. Univ.
to determine
changed
has
since
Only one relevant fact
in its admissions
racial classifications
2012,
graduated from Loui-
then-in
Fisher
narrowly tailored to its stated
process is
University
University. The
siana State
remain un-
goal essentially,
its ends
—
by graduating,
that
“her forward-
contends
known.
became moot”
looking request for relief
University’s
use of
By holding that
longer
no
seek reconsid-
because she could
tailored,
narrowly
racial classifications is
application.
undergraduate
eration of her
impermis-
to defer
majority
continues
our
graduation
pre-
Fisher’s
does not alter
def-
University’s claims. This
sibly to the
because,
standing analysis
as she
vious
at odds with the central
squarely
erence is
observes,
correctly
that determination did
scrutiny
A
strict
proper
lesson of Fisher.
forward-looking
on a claim for
depend
University
“no def-
analysis, affording
that
injunctive relief.
held
We
claims,
tailoring
narrow
erence” on its
monetary
standing
had
to seek nominal
that the Universi-
compels the conclusion
damages, and we should reach the same
process
ty’s race-conscious admissions
conclusion now.
scrutiny.
does not survive strict
University
The
relies on Texas v. Les
18,
467,
age,
120
145
528 U.S.
S.Ct.
I
(1999)
curiam),
(per
L.Ed.2d 347
for the
matter,
preliminary
As .a
Fisher has
that
proposition
standing
Fisher lacks
be
pursue
appeal,
but not
standing to
cause she would not have been admitted
contends,
because,
majority
as the
the Su-
if
regardless
Lesage
of her race. But even
opinion does “not allow our
preme Court’s
(which
standing
is a
case
is
debatable
standing].”
reconsideration
issue
[of
premise
case seems to address statu
—the
Ante, at 640.
1983),
§
tory liability under
it does not
duty
Federal courts have an affirmative
Lesage
affect the outcome here.
stands
verify jurisdiction
proceeding
before
proposition
plaintiff challeng
for the
that a
v.
the merits. Steel Co.
Citizens for
ing governmental use of racial classifica
Env’t,
94-95,
Better
523 U.S.
if “it
prevail
undisputed
tions cannot
(1998).
Although
tion is
the 2008 admissions
re-engineering
jurisdiction,
Having confirmed our
our
retroactively removing consid-
process
apply
scrutiny
any
task is to
strict
without
virtually impossible
of race is
since
eration
University’s
deference
claims. Be-
immeasurable, yet potentially
race has an
change
cause Fisher effected
the law
material,
placement
of the
impact on
scrutiny,
of strict
and corrected our under-
pro-
cut-off lines for all
final admissions
standing
applied
of that test as
Grutter
sum,
does not show
grams. In
the record
306,
2325,
Bollinger,
v.
539 U.S.
123 S.Ct.
rejection under a race-neu-
that Fisher’s
(2003), I
The
redressability
provides
Fourteenth Amendment
that no
standing
grounds.
on
er’s
“deny
any person
if
shall
within its
University’s theory is that even
State
jurisdiction
equal protection
through
had been admitted
Fisher
CONST,
It
program, and laws.” U.S.
amend. XIV.
race-conscious admissions
injury
rejection,
canonical that the Constitution treats dis-
had not suffered the
citizens based on their
have
the non-refunda-
tinctions between
paid
she still would
see, e.g.,
Thus,
origin
suspect,
race or ethnic
application
says
fee.
the Univer-
ble
497, 499, 74
Bolling
Sharpe,
v.
347 U.S.
sity,
application
fee has no
because
693,
(1954),
that the
any judicial relief
the
diversity”
Protection Clause seeks to banish. See
“diversity within
strate
—that
Croson,
at
706
homogenous, less
488 U.S.
S.Ct.
they
somehow more
are
(“[Rjаcial
provide
characteristics so seldom
undesirably
dynamic,
stereotypi-
and more
treatment.”);
disparate
a relevant basis for
under holistic re-
cal than those admitted
Fullilove,
671 Law, recognized has checking preme Ten Percent Court increased Top under the diversity perspectives in the classroom diversity qualitative for indicia of —diversi- “livelier, provides for a spirited, more determining diversity ty within —before simply enlightening more and interesting” in hol- be considered that race should Grutter, experience. 539 U.S. at remaining to fill the process istic review Bakke, (quoting S.Ct. 2325 438 U.S. If the seats in the class. 2733). However, University sufficiently qualita- Law admittees were has distanced itself from previously this they may tively population, diverse which goal, claiming asserted now it “has never tell, using I far as can then well be so pursued diversity classroom as a discrete further promote in holistic review to race endpoint,” merely interest or but as “one necessary for the diversity might not be many factors” to be considered evalu- up- and an University goal, to achieve its ating diversity. University’s Given the admittees, of these be- front assessment press failure to the classroom race, to could be a more nar- turning fore remand, argument briefing in its on And, event, any rowly-tailored option. certainly issue is almost waived. See no method for this University offers Griffith, v. United States F.3d when, ever, goal if court to determine its (5th Cir.2008) (“It principle is a well-worn undefined) (which qualitative remains for that the failure to an appeal raise issue on Accordingly, be reached. diversity will argument.”). constitutes waiver of that carry its strict University has failed waiver, Notwithstanding majori- this race- scrutiny proving burden of ty addresses the issue of classroom diver- necessary policy conscious admissions sity, contending University’s that the race- diversity objective “qua- of a achieving its policy conscious admissions critical litative” mass. give “high-scoring minority students a bet- gaining ter chance of admission to UT competitive Austin’s academic depart- case, stages of this the Uni- earlier Ante, Perhaps, ments.” at 658. based on versity goal framed its as achiev- University’s the structure of the admis- ing diversity.” “classroom process, possible sions it is that the use of diversity and the suggested that classroom calculating appli- an race as factor minority among distribution of students inсrementally increases cant’s PAI score majors meaningful met- colleges and were minority applicant that a will be odds determining college “critical mass” competitive rics whether admitted to a within And, indeed, University.18 hypothetical But eonsid- had been attained. the Su- files, applicants’ including nority re- all those of students admitted under holistic read view, "experience being applicants, assign on their Ten Percent Law based school,” majority-white Applicants in a ... like- each an AI and PAI score. with leadership ly qualities AI exceptionally "demonstra[te] class rank or scores are Ante, at These conclu- automatically sense of self.” admitted to certain first-choice and, thus, stereotypes sions are nonetheless disallowed majors to the Uni- schools or also Next, any the Fourteenth Amendment. And in versity. applicants not automatical- bound, event, record, choice, which we are gen- ly admitted to their first the staff any minority does not indicate that students with each cell erate a matrix for each school under holistic review come from admitted representing an intersection of on the matrix majority-white supra schools. See note 15. Working with liaisons AI and PAI scores. school, plot the remain- from each staff according ing applicants' pro- scores on matrices the admissions 18. The record describes First, majors. applicants' Based staff first-choice cess as follows: admissions *36 for race to potential record evidence of the enough to meet a state are not erations factor, University a decisive the cannot be scrutiny. strict See under actor’s burden establish, claims, majority that its as the Virginia, v. 518 U.S. United States actually give any (1996) racial classifications could 2264, 135 L.Ed.2d 735 116 S.Ct. minority “a better chance” of applicant (“The genuine, not justification must be Ante, competitive college. admission to hoc in re post or invented hypothesized at 658. Rather, assuming sponse litigation.”). to diversity goal is es University’s the short, University has obscured its the diversity, is the
tablishing classroom
own
point
use of race to the
even its
prov
University that bears the burden
race
explain
impact
officers cannot
the
calculating
of race in
ing that the use
colleges.21 If
competitive
on admission to
necessary
furthering
to
PAI
scores
im-
race is indeed without
discernable
race
goal.
explaining
But
how
instead
University
carry
pact, the
cannot
its bur-
prospects of
enhances
students’
proving
den of
that race-conscious holistic
or ma
competitive college
to a
admission
necessary
achieving
review is
to
classroom
jor,
University admissions officers’ de
(or,
matter,
any
for that
kind of
testimony
specifically indicates
position
diversity).
played by
Because the role
be a
factor in
that race could not
decisive
race
the admissions decision is essential-
admission,19
any
unknowable,
and that
it is
applicant’s
ly
I cannot find that
these
to
whether race was
impossible
determine
racial classifications are
or nar-
any particular appli
rowly
achieving
University’s
for
to
in fact decisive
tailored
any
diversity.
decision.20
interest
cant’s admission
Absent
applicants
Ishop
20. Dr.
on the number of
in each matrix
Kedra
was asked whether she
cell and the available seats in the class for
give
"example
could
an
where race would
school,
each
the admissions staff and liaisons
applicant's personal
impact
have some
on an
Ap-
draw "cut-off lines” across the matrices.
"In
achievement score?” Her answer:
order
plicants not selected for admission to their
impossible
say
give you
to—it's
an ex-
—to
first-choice school "cascade” onto the matrix
ample
particular
of a
student because it's all
school,
they
their
where
second-choice
contextual.”
along
applicants
are added
the cells
with
during
who
above the cut-off line
were
entirely
21. And race is
invisible at the mo-
previous review round. The cut-off lines are
drawing
ment of
the final admission cut-off
readjusted
to accommodate
additional
lines,
automatically
for students not
admitted
students,
remaining
and those
above the ad-
program by
to their first-choice
virtue of an
justed
accepted
cut-off lines are
to that
exceptionally high class rank or AI score.
Applicants not admitted
either
school.
University’s
The
admissions staff
liaisons
their first- or second-choice school then "cas-
from each school admit students to
vari-
cade” into the Liberal Arts Undecided ma-
trix,
majors
solely
which serves as
default third-choice
ous schools and
based
on the
major. Again,
perform
the admissions staff
applicants’
combination of
AI and PAI scores.
line-drawing
(cognizant
exercise
that re-
determining
While race is considered in
PAI
maining Top
applicants
Ten Percent Law
scores,
assigned
ap-
once the scores are
majors,
must be admitted as Liberal Arts
plicants
plotted
are
on the matrices for the
reducing
thus
the number of available
schools,
ap-
treat
various
admissions officers
spaces), and a final determination is made
words,
grid.
plicants
points on a
In other
applicants.
for all
University
way
officials have no
of know-
ing
they
selecting applicants
whether
any
19.When asked whether
one
in the
factor
incrementally
whose race
boosted their PAI
PAI calculation could be determinative for an
score,
any particular ap-
admission,
Walker,
whether
much less
applicant's
Dr. Bruce
Vice
Admissions,
plicant
help
University improve
will
class-
Provost and Director of
stated
diversity.
room
"no.”
University’s narrow-tailoring
claims.
Fisher,
2420-21.
further claims
*37
Second,
University correctly
is nar-
while the
program
admissions
race-conscious
because,
of a
help
range
with the
a
of factors in its assess-
rowly tailored
considers
system,
race,
it will
necessity
review
of the
of its use of
see
rigorous periodic
ment
Bakke,
of race when
its consideration
Nonetheless, there are two distinct flaws University submits that its Lastly, the University’s its with the assurances policy necessari- race-conscious admissions own, internal, periodic review is sufficient tailoring narrow because it is ly satisfies any unconstitutional safeguard against to closely pro- modeled on the admissions First, scrutiny of race. strict does use gram upheld by Supreme Court judiciary delegate wholesale to allow the Similarly, majority implies Grutter. determining task of state actors policy’s that the race-conscious admissions policy admissions whether race-conscious is, itself, meaningful similarity to Grutter necessary. This is continues be scrutiny analysis.22 Court, factor in our strict very point made the Fisher deferring unpersuasive. This claim is vacating previous opinion for our ante, nearly indistinguishable from the Uni- gram (describing the Universi- 22. See at 645 ty's direct reference to the Michigan program use of race with versity Law School's Grutter)', program approved in id. at 653 ...’’). Grutter ("UT pro- review Austin's holistic —a obligated Similarity to Grutter is not narrow- confirms we tailoring that insulates the Uni- challenged race- talisman particular consider versity’s scrutiny. The policy from strict its own terms and program on conscious University’s prove burden is to University “could achieve ask whether the of racial classifications is neces- own use using without racial sufficient narrowly achieving sary and tailored at 2420. Strict classifications.” 133 S.Ct. diversity objectives. its own scrutiny hypothetical undertaking, not a university on the “imposes but rather demonstrating, before
ultimate burden
B
*38
classifications, that
to racial
avail-
turning
Ultimately,
any
the record is devoid of
able,
alternatives do
race-neutral
workable
specifically articulated connection between
not suffice.”
University’s diversity goal
the
of “critical
mass” and its race-conscious admissions
aspects
University’s
of the
ad-
Certain
process.
University
The
has not shown
policy
parallel
do
the features of
missions
existence,
lack,
how determines the
is
a
plan upheld
the
Grutter —race
a “critical mass” of
in its student
holistic,
a
individualized
sub-factor within
Rather,
University only
the
population.
University’s goal
process,
review
and the
goal
“obtaining
frames its
as
the edu-
in terms of “critical
But
is framed
mass.”
diversity.”
cational benefits of
This is en-
University,
by
under mandate
the Tex-
the
tirely
reasoning
satisfy
circular
that cannot
Law,
Legislature’s Top Ten Percent
as
rigorous
analysis
the
means-to-ends
re-
majority
entering
admits the
of its
class
Fisher,
quired
scrutiny.
under strict
through
separate,
a
race-neutral scheme.23
at 2421.
S.Ct.
inevitably impacts the narrow tailor-
This
presently
calculus
under consideration.
ing
clear, my
To
is not
be
concern
with the
is,
University’s
That
while the
race-con- University’s use of the term “critical mass”
policy conceptually
scious admissions
is
de-
University
if
itself. Even
were to
University Michigan
rived from the
Law adopt another
to ex-
rhetorical construct
quite
the two are
approach,
School’s
dis-
diversity objectives,
plain its
it faces the
practice:
University’s
tinct in
The
holistic
underlying problem
same
does not of-
—it
separate process
review coexists with a
a
fer
clear and definite articulation of its
students,
large population
a
goal
admits
reviewing
sufficient for a
court
contemplated
a circumstance not
verify
tailoring.
University’s
Grut-
narrow
The
ter.24
scrutiny
failure to meet its strict
burden is
majority implies
University’s
Additionally,
23. The
that the
I
that the
observe
admissions
Top
implementation of the
Ten Percent Law
program here and that in Grutter do not seem
ante,
("UT
discretionary.
was
See
at 645
Aus-
way.
accepting
to use race in the same
Even
Top
tin turned to the
Ten Percent Plan....”
University
that the
uses race as a "factor of a
("We
added));
(emphasis
id. at 645
are of-
factor,” here,
University
factor of
incor-
response
validity
fered no coherent
of a
porates race into the PAI before individual
potentially
election UT Austin: to
different
admissions decisions are made on the matri-
process
invert the
and use Grutter s holistic
ces,
point
at which
race is invisible. See
review to select
or all of its students.”
80%
contrast,
Grutter,
supra
By
note 21.
each
added)).
(emphasis
There was no such
file,
applicant’s
including
law school
his or
choice;
was mandated
classification,
her racial
was considered dur-
any graduate
top
law to admit
in the
ten
holistic,
ing a
full-file review. See 539 U.S. at
And,
percent
of his or her
school class.
334-36,
25. There are additional particular use of racial classifications is * * * narrowly tailored to those case have re- The material facts of this record, goals. University On this has since the district unchanged mained not “offered sufficient evidence that would summary judgment, but grant court’s prove that its admissions is nar- markedly. governing changed has law rowly tailored obtain the educational scrutiny that strict Fisher established Fisher, diversity.” benefits of 133 S.Ct. at affirmative action set- higher education Accordingly, I would reverse and ting scrutiny no different than strict judgment render for Fisher. equal protection other contexts—the state proving actor receives no deference respectfully I dissent. nar- its chosen race-conscious means are majority rowly tailored to its ends. The give proper weight.
fails to Fisher its To-
day’s opinion sidesteps the new strict scru-
tiny continues to defer to the standard and
University’s racial claims that its use of narrowly tailored to its
classifications diversity goal. Because the has SPITZBERG; Stephen Gerber, Paul goal any not defined its mean- Plaintiffs-Appellants ingful way instead, reflexively reciting — v. “critical altogether the term mass”—it is impossible to determine whether its use of HOUSTON AMERICAN ENERGY narrowly racial classifications is tailored. CORPORATION; Terwilliger; F. John *40 however, say, Jay Jacobs; Jr.;
This is not to
that it is
King,
E. Howard
J.
impossible
public university
for a
to define
Loftus;
Tawes, III;
Alex
O. Lee
Ed
adequately
ends
for a court to
Broun, III; Stephen Hattzell;
win C.
verify
tailoring
requisite
narrow
with the
Boylan;
Howe;
John
Richard J.
Ken
“[sjtrict
all,
exacting scrutiny. After
scru-
Jeffers, Defendants-Appellees.
neth A.
tiny
theory
must not be strict in
fatal
but
No. 13-20519.
(inter-
Fisher,
in fact.”
now, after that a state actor’s diversity goals sufficiently must be clear reviewing
and definite such that a court assess, deference,
can without whether its First, join. grades college non-top that I percent cannot to bolster the "ne- than review, students,” cessity” "[sjtrong perform- of race-conscious holistic academic majority explains high pre- that holistic-review admit- ance in school is an even better higher college tees have standardized test scores. dictor of success in than standardized Ante, However, best, superiori- at 650 & nn. 96-97. no testi- test scores.” At the academic mony ty group or record evidence establishes whether of holistic review admittees as a Second, gap highly legislative changes in SAT scores between Ten Per- contested. Non-Top cent and Ten Percent admittees is Ten Percent Law after statistically significant. year purposes, ger- And as the Universi- relevant for our are not ante, (dis- ty’s president explained "top per- analysis. mane to our See at 655 175). higher cussing cent school students make much S.B.