Fisher v. University of Texas at Austin Brief of Amici Curiae Opposing Appellants’ Petition for Rehearing En Banc
Public Court Documents
March 1, 2011

Cite this item
-
Brief Collection, LDF Court Filings. Fisher v. University of Texas at Austin Brief of Amici Curiae Opposing Appellants’ Petition for Rehearing En Banc, 2011. 605c8ed2-b19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/09d33eb0-953e-4740-b724-3a0104e078a9/fisher-v-university-of-texas-at-austin-brief-of-amici-curiae-opposing-appellants-petition-for-rehearing-en-banc. Accessed April 29, 2025.
Copied!
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