Fisher v. University of Texas at Austin Brief of Amici Curiae Opposing Appellants’ Petition for Rehearing En Banc

    No. 09-50822

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

Abigail Noel Fisher and Rachel Multer Michalewicz,

v .

Plaintiffs-Appellants,

University of Texas at Austin, et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF TEXAS, AUSTIN DIVISION

1:08-cv-00263-SS

BRIEF OF AM ICI CURIAE THE BLACK STUDENT ALLIANCE AT THE 
UNIVERSITY OF TEXAS AT AUSTIN AND 

THE NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 
OPPOSING APPELLANTS’ PETITION FOR REHEARING EN  BANC

NAACP Legal Defense & 
Educational Fund, Inc. 

Debo P. Adegbile 
Kimberly Liu
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
(212) 226-7592 (fax)

Joshua Civin
Counsel o f  Record 

1444 I Street, NW, 10th Floor 
Washington, DC 20005 
(202) 682-1300 
(202) 682-1312 (fax)

Fulbright & Jaworski L.L.P. 
Terry O. Tottenham 
600 Congress Avenue, Suite 2400 
Austin, Texas 78701

Edward B. Adams, Jr. 
Fulbright Tower 
1301 McKinney, Suite 5100 
Houston, TX 77010-3095

Counsel fo r  Amici Curiae



SUPPLEMENTAL STATEMENT OF INTERESTED PARTIES, 
CORPORATE DISCLOSURE STATEMENT, AND 

STATEMENT OF PARTY PARTICIPATION

No. 09-50822
Fisher v. University o f Texas at Austin 

The undersigned counsel of record certifies that the following listed persons 

and entities as described in the fourth sentence of Fifth Circuit Rule 28.2.1 have an 

interest in the outcome of this case. These representations are made in order that 

the judges of this Court may evaluate possible disqualification or recusal.

1. Those persons and attorneys listed by Appellants, Appellees, and other amici 
in their respective briefs.

2. NAACP Legal Defense & Educational Fund, Inc.

3. Black Student Alliance at the University of Texas Austin

4. Fulbright & Jaworski L.L.P.

5. Debo P. Adegbile

6. Joshua Civin

7. Kimberly Liu

8. Terry O. Tottenham

9. Edward B. Adams, Jr.

Counsel is unaware of any other persons with an interest in this amicus brief. 

Pursuant to Federal Rule of Appellate Procedure 26.1, the undersigned 

counsel certifies that amicus NAACP Legal Defense & Educational Fund, Inc. is a



non-profit 501(c)(3) corporation, is not a publicly held company that issues stock, 

and has no parent corporation. Counsel further certifies that amicus Black Student 

Alliance at the University of Texas at Austin is an unincorporated entity that is 

registered as a student organization at the University of Texas at Austin.

Pursuant to Federal Rule of Appellate Procedure 29(c)(5), the undersigned 

counsel states that no counsel for any party had a role in authoring this amicus 

brief and that no party, counsel for any party, or person—other than amici, their 

members, and their counsel—contributed money that was intended to fund 

preparing or submitting this amicus brief.

March 1, 2011
Counsel o f  Record for Amici

NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. 

1444 I Street, NW, 10th Floor 
Washington, DC 20005 
(202) 682-1300 
(202) 682-1312 (fax)

li



TABLE OF CONTENTS

Supplemental Statement of Interested Parties, Corporate Disclosure
Statement, and Statement of Party Participation.............................................. i

Table of Contents........................................................................................................ iii

Table of Authorities.................................................................................................... iv

Interests of Amici..........................................................................................................1

Argument....................................................................................................................... 1

I. The panel faithfully applied strict scrutiny as prescribed by Grutter........... 2

II. Grutter permits a university to consider appropriately the
demographics of the populations it seeks to serve.......................................... 3

III. The panel’s narrow-tailoring analysis is consistent with Grutter.................. 5

Conclusion....................................................................................................................8

in



TABLE OF AUTHORITIES

Cases

Regents o f the University o f California v. Bakke, 438 U.S. 265 (1978)....................4

Fisher v. University o f Texas at Austin, 645 F. Supp. 2d 587 (W.D.
Tex. 2009)...................................................................................................................6

Grutter v. Bollinger, 539 U.S. 306 (2003)........................................................ passim

Parents Involved in Community Schools v. Seattle School District No. 1,
551 U.S. 701 (2007)..............................................................................................U 7

Statutes and Rules

Federal Rule of Appellate Procedure 29(a)................................................................. 1

Fifth Circuit Rule 35.1 & I.O.P.....................................................................................2

Tex. Educ. Code § 51.803..............................................................................................1

Other Authorities

Thomas J. Espenshade & Alexandria Walton Radford, No Longer 
Separate, Not Yet Equal: Race and Class in Elite College
Admission and Campus Life (2009)......................................................................6-7

University of Texas at Austin, Implementation and Results o f the 
Texas Automatic Admissions Law (HB 588) (2008), available at 
http://www.utexas.edu/student/admissions/research/ HB588- 
Reportl l.pdf...............................................................................................................6

University of Texas at Austin, Proposal to Consider Race and 
Ethnicity in Admissions (2004), available at http://www.utexas.edu/ 
student/admissions/about/admission_proposal.pdf.........................................3-4, 5

IV

http://www.utexas.edu/student/admissions/research/
http://www.utexas.edu/


INTERESTS OF AMICI

Amici are the Black Student Alliance at the University of Texas at Austin, a 

membership organization that serves as the leadership voice of African-American 

students on campus, and the NAACP Legal Defense & Educational Fund, Inc., a 

non-profit legal organization that has worked for over seven decades to ensure 

equal educational opportunity for all Americans. Amici have participated in every 

stage of this litigation, including oral argument before a panel of this Court. 

Pursuant to Federal Rule of Appellate Procedure 29(a), all parties have consented 

to the filing of this amicus brief.

ARGUMENT

Eight years ago in Grutter v. Bollinger, 539 U.S. 306 (2003), the Supreme 

Court confirmed that universities may constitutionally adopt race-conscious 

admissions policies, so long as they are narrowly tailored to foster civic 

engagement, visibly open leadership pathways, and other compelling educational 

benefits that flow from a critical mass of diverse students. That principle was 

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

1, 551 U.S. 701 (2007), and faithfully applied by a unanimous panel of this Court 

to uphold UT Austin’s consideration of race as one factor among many in the 

holistic process that it uses to review applicants who are not admitted through the 

statutorily mandated Top Ten Percent Plan. See Tex. Educ. Code § 51.803.

1



In seeking en banc review, Appellants assert that “the panel opinion 

conflicts sharply with Grutter,” Pet. v, but they do not substantiate their claim. 

Instead, they rehash arguments regarding the application of Grutter to the details of 

this case, which involves a limited dispute over the admissions process that UT 

Austin employed when the two Appellants applied for the first-year class entering 

in the fall of 2008. None of Appellants’ highly fact-specific challenges to the 

panel’s application of binding Supreme Court authority merit the “extraordinary 

nature” of en banc review. 5th Cir. R. 35.1 & I.O.P. Indeed, it is clear from 

Appellants’ petition that their fundamental quarrel is with Grutter itself. Yet, as 

both Judge Higginbotham’s opinion and Judge Garza’s concurrence recognized, it 

is not within the province of this Court to revisit controlling Supreme Court 

precedent, which has proven a workable standard for colleges and universities 

throughout the nation. See Panel Op. 4, 56; id. at 58 (Garza, J., concurring).

I. The panel faithfully applied strict scrutiny as prescribed by Grutter.

By “presum[ing]” that UT Austin “acted in good faith” when it decided to 

use race as one factor among many in its holistic admissions program, the panel 

was simply following Grutter's express command. Panel Op. 28-29 (citing 

Grutter, 539 U.S. at 329). Grutter's “good faith” presumption played a key role in 

the Supreme Court’s application of both the compelling interest and narrow­

tailoring prongs of strict scrutiny, in light of the deference due to universities

2



“complex educational judgments” in formulating admissions policies. Grutter, 539 

U.S. at 328; see also id. at 333-34, 339; Panel Op. 28-33, 52.

Grutter’s deference is not, however, “a rubber stamp.” Pet. 8. Appellants 

give short shrift to the panel’s extensive and careful analysis, as well as the 

deliberative review that the University undertook in 2003-2004 before determining 

that it had failed to attain a critical mass of African Americans and other 

underrepresented minorities using only race-neutral measures. The panel 

emphasized the “serious good faith consideration” that UT Austin devoted to race- 

neutral alternatives, Panel Op. 32, 55, which even Appellants concede is “one part 

of the narrow tailoring component of strict scrutiny” under Grutter, Pet. 4 (citing 

Grutter, 539 U.S. at 339), precisely because this component was central to 

Appellants’ challenge. Although it was decisively rejected by the panel, 

Appellants’ main argument has always been that the Top Ten Percent Plan is a 

workable race-neutral alternative. See Panel Op. 52-55; Pet. 11, 15; Appellants’ 

Panel Br. 3 (issues presented).

II. Grutter permits a university to consider appropriately the demographics
of the populations it seeks to serve.

UT Austin’s interest in the educational benefits of diversity is no less 

compelling because it “‘acknowledg[ed] that the significant differences between 

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

state’s population prevent the University from fully achieving its mission.’” Panel

3



Op. 18 (quoting UT Austin, Proposal to Consider Race and Ethnicity in 

Admissions 24 (2004)). The panel recognized that a university “need not be blind 

to significant racial disparities in its community, nor is it wholly prohibited from 

taking the degree of disparity into account.” Panel Op. 40. Contrary to 

Appellants’ argument, Pet. 13-14, this is not an endorsement of the “outright racial 

balancing” prohibited by Grutter. 539 U.S. at 330. As the panel noted, “[b]oth 

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

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

Panel Op. 37 (quoting Grutter, 539 U.S. at 336 (quoting Regents o f the Univ. o f 

California v. Bakke, 438 U.S. 265, 323 (1978) (opinion of Powell, J.))).

In UT Austin’s considered educational judgment, admitting a critical mass 

of individuals from underrepresented minority backgrounds was particularly likely 

to advance the several “distinct educational objectives served by the diversity 

[Grutter] envisioned.” Panel Op. 6; accord Grutter, 539 U.S. at 316, 330-33, 338. 

As the panel determined, “[ijdentifying which backgrounds are underrepresented, 

in turn, presupposes some reference to demographics.” Panel Op. 38.

One key benefit of a diverse university is “[preparing students to function 

as professionals in an increasingly diverse workforce.” Id.; accord Grutter, 539 

U.S. at 330-32. Accordingly, the panel credited UT Austin’s concern that, during 

the 1997-2004 period when it relied exclusively on race-neutral admissions, it

4



provided a “Tess-than-realistic environment’” for training future leaders of a state 

as racially diverse as Texas. Panel Op. 39 (quoting UT Austin, Proposal to 

Consider Race and Ethnicity in Admissions 24 (2004)).

As the panel further recognized, another benefit of diversity is “civic 

engagement.” Id. at 7-8, 39-40. In Grutter, the Supreme Court emphasized that 

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

it is necessary that the path to leadership be visibly open to talented and qualified 

individuals of every race and ethnicity.” 539 U.S. at 332. Drawing on this passage 

from Grutter, the panel correspondingly held that, in UT Austin’s context, “[t]he 

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

maintain visibly open paths to leadership also requires a degree of attention to the 

surrounding community.” Panel Op. 39.

Thus, to attain the several distinct and compelling educational benefits of 

diversity endorsed by Grutter, UT Austin was fully entitled to “devote[ ] special 

attention to those minorities,” including African Americans and Latinos, who 

“were most significantly underrepresented on its campus.” Id. at 41.

III. The panel’s narrow-tailoring analysis is consistent with Grutter.

Appellants also reassert their arguments that UT Austin’s race-conscious 

admissions policy is not narrowly tailored because it “has failed to yield a 

meaningful increase in minority enrollment,” Pet. vi, and “the race-neutral

5



admissions process it previously used has proven to work about as well,” id. at 1. 

The panel correctly rejected these assertions.

The undisputed factual record contradicts Appellants’ claims regarding the 

efficacy of UT Austin’s 1997-2004 experiment with race-neutral admissions. Id. at 

6-7, 11. Even after the Top Ten Percent Plan was enacted, African-American 

students experienced severe racial isolation. At no point during this period did 

they constitute more than 4.5% of the first-year class, which is far below the 

portion of Texas high school graduates who are African-American. Panel Op. 13- 

16; Fisher v. Univ. o f Tex. at Austin, 645 F. Supp. 2d 587, 594 (W.D. Tex. 2009).

Although amici believe that UT Austin could do even more to ensure a 

critical mass of Texas’s underrepresented minority students, the University’s race­

conscious holistic admissions program does provide an essential supplement to the 

Top Ten Percent Plan by meaningfully contributing to minority student enrollment. 

See Panel Op. 18-19, 26. For instance, in the first four entering classes after UT 

Austin’s 2004 decision to consider race as one factor in its holistic admissions 

program, 435 of the 1,544 African-American students enrolled—a full 28%—were 

admitted through that program. See UT Austin, Implementation and Results o f the 

Texas Automatic Admissions Law (HB 588) 6-7 (2008).1

1 Recent research confirms that even modest increases in minority enrollment have a 
positive effect on classroom and campus integration for all students. See, e.g., Thomas J.

6



In any event, the magnitude of the impact of race-conscious admissions on 

university enrollment does not drive the narrow-tailoring inquiry under Grutter. 

And, contrary to Appellants’ claim, Pet. 12, Parents Involved does not alter this 

analysis. See Panel Op. 54-55. While the Supreme Court questioned the necessity 

of a K-12 student assignment plan that had minimal statistical impact, it made clear 

that its critique was limited to rigid, binary racial classifications that could be 

“determinative standing alone.” Parents Involved, 551 U.S. at 723; see also id. at 

734-35. Parents Involved expressly distinguished the type of individualized, 

holistic review that was endorsed by Grutter and that is at issue here, where race is 

considered “as part of a broader effort to achieve ‘exposure to widely diverse 

people, cultures, ideas, and viewpoints.’” Id. at 723 (quoting Grutter, 539 U.S. at 

330); see also id. at 790 (Kennedy, J., concurring in part); Panel Op. 54-55.

The University’s use of race-conscious holistic admissions to supplement the

Top Ten Percent Plan also helps achieve its goal of ensuring, consistent with

Grutter, that its campus and classrooms are “broadly diverse.” Grutter, 539 U.S.

at 329 (quotation mark and citation omitted).2 Without the ability to consider race

in its holistic admissions program, UT Austin could not decide, for instance, that it

should admit a non-Top-Ten-Percent white applicant who was president of his

Espenshade & Alexandria Walton Radford, No Longer Separate, Not Yet Equal: Race and Class 
in Elite College Admission and Campus Life 199 (2009).

2 It bears emphasis that Appellants did not challenge either the constitutionality or the 
wisdom of the Top Ten Percent Plan. Panel Op. 2; see also id. at 57 (King, J., concurring).

7



majority-African-American high school, or vice versa. See Appellants’ Record 

Excerpts 90 (Deposition of Bruce Walker, UT Austin Vice Provost and Director of 

Admissions, Doc. 94-12 at 11); Panel Op. 36. Yet, these individuals are precisely 

the type of students who can help the University promote its goals of increasing 

cross-racial understanding and breaking down racial stereotypes. As the panel 

recognized, Grutter sanctions such ‘“ individualized assessments . . .  to assemble a 

student body that is not just racially diverse, but diverse along all the qualities 

valued by the university.’” Panel Op. 42 (quoting Grutter, 539 U.S. at 340).

For the foregoing reasons and those stated by UT Austin in its response to 

Appellants’ petition, this Court should deny en banc review.

CONCLUSION

Dated: March 1, 2011 Respectfully submitted,

NAACP l e g a l  d e f e n s e  &
EDUCATIONAL FUND, INC. 

Debo P. Adegbile 
Kimberly Liu
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
(212) 226-7592 (fax)

FULBRIGHT & JAWORKSI L.L.P. 
Terry O. Tottenham 
600 Congress Avenue, Suite 2400 
Austin, Texas 78701

Edward B. Adams, Jr. 
Fulbright Tower 
1301 McKinney, Suite 5100 
Houston, TX 77010-3095

Joshua Civin 
Counsel o f Record

Counsel for Amici Curiae

1444 I Street, NW, 10th Floor 
Washington, DC 20005 
(202) 682-1300 
(202) 682-1312 (fax)

8



CERTIFICATE OF SERVICE

I certify, pursuant to Fed. R. App. P. 25(d), that this amicus brief was timely 
filed with the Clerk of the Court on March 1, 2011, via CM/ECF and by sending 
twenty paper copies to the Office of the Clerk, as addressed below, via UPS Next 
Day Air Delivery:

Lyle W. Cayce, Clerk
U.S. Court of Appeals for the Fifth Circuit
600 S. Maestri Place
New Orleans, Louisiana 70130-3408

I further certify that an electronic version of the amicus brief in PDF format 
was additionally served, on March 1, 2011, to the following counsel of record:

Counsel for Plaintiffs-Appellants

Jonathan F. Mitchell
Solicitor General of Texas
Joseph D. Hughes
Assistant Solicitor
Office of the Attorney General
P.O. Box 12548 (Mail Code 059)
Austin, Texas 78711-2548
jonathan.mitchell@oag.state.tx.us

Counsel for Defendants-Appellees

Paul M. Terrill 
The Terrill Firm, P.C. 
810 W. 10th Street 
Austin, Texas 78701

Bert W. Rein 
William S. Consovoy 
Thomas R. McCarthy 
Claire J. Evans 
Wiley Rein LLP 
1776 K Street, N.W. 
Washington, DC 20006 
tmccarthy@wileyrein.com

Joshua Civin 
Counsel for Amici

mailto:jonathan.mitchell@oag.state.tx.us
mailto:tmccarthy@wileyrein.com