Franklin, John Hope, undated - 1 of 1

    No. 11-345

In The

Supreme Court of tfje Umteb H>tate£

Abigail Noel Fisher,
Petitioner,

v.
University of Texas at Austin, et al.,

Respondents.

On Writ of Certiorari to the 
United States Court of Appeals for the Fifth Circuit

BRIEF OF THE BLACK STUDENT ALLIANCE 
AT THE UNIVERSITY OF TEXAS AT AUSTIN, 
THE BLACK EX-STUDENTS OF TEXAS, INC., 

AND THE NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC. AS AMICI CURIAE 

IN SUPPORT OF RESPONDENTS

Joshua Civtn 
NAACP Legal Defense 

& Educational Fund, Inc. 
1444 I Street, NW, 10th Floor 
Washington, DC 20005

DERO P. Adegbile 
Acting Director-Counsel 
Counsel o f Record 

Elise C. Boddie 
Damon T. Hewitt 
Leticia V. Smith-Evans 
Rachel M. Kleinman 
NAACP Legal Defense 

& Educational Fund, Inc. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

mailto:dadegbile@naacpldf.org


1

TABLE OF CONTENTS

TABLE OF CONTENTS...............................................i
TABLE OF AUTHORITIES ...................................... iii
INTERESTS OF A M ICI.......................  1
INTRODUCTION AND SUMMARY OF AR­

GUMENT ................................................................. 3
ARGUMENT.... ..........................................................  8
I. Meaningful representation of African-

American students is necessary to achieve 
the full educational benefits of diversity.........8
A. A critical mass of underrepresented

minority students helps break down 
stereotypes and allows all students to 
explore, develop, and express their in­
dividuality ...................................................... 9

B. Critical mass cannot be assessed by
lumping together underrepresented 
minorities......................................................14

C. Because the benefits of diversity ex­
tend well beyond campus borders, the 
critical mass inquiry must ensure 
open paths to leadership and opportu­
nity ................................................................ 17

II. The University’s Task Force on Racial Re­
spect and Fairness provided additional 
evidence that UT’s race-neutral efforts did 
not yield meaningful African-American 
representation when race-conscious ad­
missions were banned in 1997-2004 ............... 21



III. Consideration of race in UT’s holistic ad­
missions process is vital to create a 
broadly diverse student body............................ 26
A. Race-conscious holistic review is an im­

portant supplement to the Top Ten 
Percent Plan.........................  27

B. Race-conscious holistic review admits
students likely to promote the educa­
tional benefits of diversity............................30

C. Excluding race from individualized re­
view would demean many students’ in­
dividual dignity..................   32

CONCLUSION............................   34



Ill

TABLE OF AUTHORITIES 
Cases

Adams v. Bell, 711 F.2d 161 (D.C. Cir. 1983).........3
Bartlett v. Strickland, 556 U.S. 1 (2009)..........32-33
Christian Legal Society v. Martinez, 130 S. Ct.

2971 (2010).......................................................   11
Geier v. Bredesen, 453 F. Supp. 2d 1017 (M.D.

Tenn. 2006)................................................................ 3
Gratz v. Bollinger, 539 U.S. 244 (2003)....................2
Grutter v. Bollinger, 539 U.S. 306 (2003)...... passim
Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert, 

denied, 518 U.S. 1033 (1996).......................passim
Hopwood v. Texas, 861 F. Supp. 551 (W.D.

Tex. 1994)..........................................   18-19
International Brotherhood of Teamsters v. 

United States, 431 U.S. 324 (1977)....................  13
Jenness v. Fortson, 403 U.S. 431 (1971)............ 16
Lawrence u Texas, 539 U.S. 558 (2003).................  12
League of United Latin American Citizens u. 

Perry, 548 U.S. 399 (2006).................................   16
Missouri ex rel. Gaines v. Canada, 305 U.S.

337 (1938)...............................................................2-3
Parents Involved in Community Schools v. 

Seattle School District No. 1, 551 U.S. 701 
(2007)...............................................................passim

Regents of University of California v. Bakke,
438 U.S. 265 (1978)....................................... passim

Sipuel v. Board of Regents of Univ. of Okla.,
332 U.S. 631 (1948) 2



IV

Sweatt v. Painter, 339 U.S. 629 (1950)...........passim
Tennessee v. Lane, 541 U.S. 509 (2004).................  22
United States u. Fordice, 505 U.S. 717 (1992)........2

Statute
Tex. Educ. Code § 51.803 (1997) (amended 

1999, 2007 & 2009).............. ............................. 6, 26

Other Authorities
Todd Ackerman, UT Task Force Calls for 

Greater Racial Sensitivity, Houston Chroni­
cle, Jan. 21, 2004..............................................22-23

Bobby Blanchard, New UT Publication Brings 
Different Perspectives to 40 Acres, Daily 
Texan, May 2, 2012..........................................   30

Deirdre M. Bowen, Brilliant Disguise: An 
Empirical Analysis of a Social Experiment 
Banning Affirmative Action, 85 Ind. L.J.
1197 (2010)............................................................   25

William G. Bowen, Admissions and the Rele­
vance of Race, Princeton Alumni Weekly 
(Sept. 26, 1977).................................................   10

Nicholas A. Bowman et al., The Long-Term 
Effects of College Diversity Experiences: 
Well-Being and Social Concerns 13 Years 
After Graduation, 52 J.C. Student Dev. 729 
(2011) .................. ................. ............................................ . 11

Thomas J. Espenshade & Alexandria Walton 
Radford, No Longer Separate, Not Yet 
Equal: Race and Class in Elite College Ad-



V

mission and Campus Life (2009)....................27-28
Andrew Freidenthal, Shameful Graffiti Paints 

Larger Picture, Daily Texan, Sept. 22, 2008.... 29
Dwonna Goldstone, Integrating the 40 Acres:

The Fifty-Year Struggle for Racial Equality 
at the University of Texas (2006).........................  18

Patricia Gurin et al., Diversity and Higher 
Education: Theory and Impact on Educa­
tional Outcomes, 72 Harv. Educ. Rev. 330 
(2002).................................................................  16-17

Angel Harris & Marta Tienda, Minority 
Higher Education Pipeline: Consequences of
Changes in College Admissions Policy in 
Texas, 627 Annals Am. Acad. Pol. & Soc.
Sci. 60 (2010).................. ..................................... . 14

Ralph K.M. Haurwitz, UT Student Paper Is­
sues Apology for Cartoon, Austin American- 
Statesman, Mar. 28, 2012...................................... 29

Destinee Hodge, Simkins Hall Renamed in 
Unanimous Decision, Daily Texan, July 15,
2010...........................................................................23

Jessica S. Howell, Assessing the Impact of 
Eliminating Affirmative Action in Higher 
Education, 28 J. Labor Econ. 113 (2010)........... 28

Sylvia Hurtado, Benefits and Barriers: Racial 
Dynamics of the Undergraduate Experience, 
in The Next Twenty-Five Years: Affirmative 
Action in Higher Education in the United 
States and South Africa (David L. Feather- 
man et al. eds., 2010)............................................ 28

Sylvia Hurtado, Linking Diversity with the 
Educational and Civic Missions of Higher



VI

Education, 30 Rev. Higher Educ. 185 (2007).... 11
David Kassabian, Officials Talk Camera Up­

grades: New Technology Would Detect Sus­
picious Acts Around MLK Statute, Daily
Texan, Aug. 27, 2004............................................. 25

Scott E. Page, The Difference: How the Power 
of Diversity Creates Better Groups, Firms, 
Schools, and Society (2007).................................. 12

Respondents Brief, Grutter v. Bollinger, 539 
U.S. 306 (No. 02-241), 2003 WL 402236............ 13

Thomas D. Russell, “Keep Negroes Out of Most
Classes Where There Are a Large Number of 
Girls”: The Unseen Power of the Ku Klux 
Klan and Standardized Testing at the Uni­
versity of Texas, 1899-1999, 52 S. Tex. L.
Rev. 1 (2010)...........................................................23

Ahsika Sanders, Racial Conflicts Tarnish His­
tory of Roundup, Daily Texan, Apr. 13, 2011.... 29

Rebecca L. Stotzer & Emily Hossellman, Hate 
Crimes on Campus: Racial/Ethnic Diversity 
and Campus Safety, 27 J. of Interpersonal
Violence 644 (2012)................................................  25

Marta Tienda & Sunny Xinchun Niu, Capital­
izing on Segregation, Pretending Neutrality: 
College Admissions and the Texas Top 10%
Law, 8 Am. L. & Econ. Rev. 312 (2006)..........9-10

Gerald Torres, Fisher v. University of Texas: 
Living in the Dwindling Shadow of LBJ’s 
America, 65 Vand. L. Rev. En Banc 97 
(2012)........................................................................ 32

University of Texas at Austin, Report of the 
Task Force on Racial Respect and Fairness



(2004), available at http://www.utexas.edu/ 
news/attach/2004/2262_report_respect.pdf.. 23-25

University of Texas at Austin, Office of the 
President, Comments on the Report of the 
Task Force on Racial Respect and Fairness,
May 10, 2004, available at
http://www.utexas.edU/president/speeches/r 
rf_051004.pdf .................................................... 25

University of Texas System Administration, 
Standards of Conduct Guide (2012), avail­
able at http://www.utsystem.edu/system 
compliance/SOCcombined.pdf..... ....................... 26

vii

http://www.utexas.edu/
http://www.utexas.edU/president/speeches/r
http://www.utsystem.edu/system


1

INTERESTS OF AMICI1

Amici Black Student Alliance at the University of 
Texas at Austin (BSA) and the NAACP Legal De­
fense & Educational Fund, Inc, (LDF) have partici­
pated in this litigation from the outset and presented 
oral argument in the court of appeals. JA 7a, 10a, 
14a; Pet. App. 116a, 118a. Amici also include the 
Black Ex-Students of Texas, Inc. (BEST), many of 
whose participants were undergraduates in the pe­
riod pertinent to this case.

Founded during the 1980-81 school year, the BSA 
serves as the leadership voice for African-American 
students at the University of Texas at Austin (here­
inafter UT or the University). BSA members have a 
strong interest in preserving the University’s efforts 
to promote diversity through the inclusion of race as 
one factor among many in UT’s holistic review proc­
ess. Although they recognize that the campus is 
more inclusive than it has been in the past, many 
BSA members still experience racial isolation in 
their classes, extracurricular activities, and other 
informal settings across the campus.

Founded in 1998, BEST brings together UT 
alumni to assist in recruiting, retaining, and sup­
porting African-American students at UT. BEST 
also aims to increase awareness of issues facing Afri­

1 Pursuant to Supreme Court Rule 37.6, counsel for amici 
state that no counsel for a party authored this brief in whole or 
in part, and that no person other than amici, their members, or 
their counsel made a monetary contribution to the preparation 
or submission of this brief. The parties have filed blanket con­
sent letters with the Clerk of the Court pursuant to Supreme 
Court Rule 37.3.



2

can-American students, faculty, and staff at the 
University, and provides networking opportunities 
for its alumni members. Many BEST participants 
experienced firsthand significant racial isolation as 
UT students during the period between 1997 and 
2004 when the University did not consider race in its 
admissions policies. All too often they were the only, 
or one of a very few, African-American students in 
their classes. Professors and fellow students fre­
quently looked to them to give the “Black perspec­
tive” on particular issues. Some experienced acute 
incidents of racial hostility, which undermined their 
sense of belonging within the campus community. 
Accordingly, BEST participants aspire to help create 
an educational environment at the University in 
which African-American students no longer bear the 
crushing burden of tokenism and racial stereotypes 
and where they no longer struggle to develop and de­
fine themselves as individuals on their own terms.

LDF is a non-profit legal organization that has 
worked for more than seven decades to dismantle 
racial segregation and ensure equal educational op­
portunity for all students. In groundbreaking cases, 
LDF has represented African-American students 
and applicants, as parties and amici, seeking to ex­
pand access and opportunity—both at UT, see, e.g., 
Sweatt v. Painter, 339 U.S. 629 (1950); Hopwood u. 
Texas, 78 F.3d 932 (5th Cir. 1996), and at other uni­
versities throughout the nation, see, e.g., Grutter u. 
Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 
539 U.S. 244 (2003); United States v. Fordice, 
505 U.S. 717 (1992); Regents of Uniu. of Cal. u. 
Bakke, 438 U.S. 265 (1978); Sipuel v. Bd. of Regents 
of Univ. of Okla., 332 U.S. 631 (1948); Missouri ex



3

rel. Gaines v. Canada, 305 U.S. 337 (1938); Adams v. 
Bell, 711 F.2d 161 (D.C. Cir. 1983); Geier v. Brede- 
sen, 453 F. Supp. 2d 1017 (M.D. Tenn. 2006). In ad­
dition, while he was in private practice prior to be­
coming LDF’s sixth President and Director Counsel, 
the late John Payton served as counsel to the Uni­
versity of Michigan in Grutter and Gratz and argued 
the latter case before this Court.

INTRODUCTION AND 
SUMMARY OF ARGUMENT

As this Court has repeatedly stressed, diversity’s 
educational benefits go to the heart of our democ­
racy: “ [NJothing less than the ‘nation’s future de­
pends upon leaders trained through wide exposure to 
the ideas and mores of students as diverse as this 
Nation of many peoples.’” Grutter v. Bollinger, 539 
U.S. 306, 324 (2003) (quoting Regents of Univ. of Cal. 
v. Bakke, 438 U.S. 265, 313 (1978) (internal citation 
and quotation marks omitted)). The educational 
benefits that flow from diverse colleges and universi­
ties are no less apparent today than they were three 
decades ago when Justice Powell cast the deciding 
vote in Bakke, nine years ago when the Court de­
cided Grutter, or five years ago, when it reaffirmed 
this Grutter principle in Parents Involved in Com­
munity Schools v. Seattle School District No. 1, 551 
U.S. 701, 722-23 (2007).

The Court’s conceptualization of the educational 
benefits of diversity did not spring from whole cloth. 
It arose out of a particular historical context in 
which UT played a significant and distinctive role. 
See, e.g., Sweatt v. Painter, 339 U.S. 629 (1950) 
(mandating admission of Heman Marion Sweatt,



4

whose application to UT Law School had been denied 
based solely on his race). This “ [cjontext matters,” 
Grutter, 539 U.S. at 327, in the nation’s ongoing ef­
forts to transcend its exclusionary past and chart a 
more socially cohesive and racially inclusive future. 
To ensure continued progress in these efforts, col­
leges and universities must be free to create envi­
ronments where people of diverse backgrounds can 
come together in ways that foster respect for the dis­
tinctive talents and contributions that each offers. 
This is particularly significant in light of the special 
role that higher education plays in opening path­
ways to civic, political, and economic leadership and 
opportunity. See id. at 331-32.

Fully realizing the educational benefits of diver­
sity, however, depends on another important predi­
cate. There must be a “meaningful representa­
tion”—or, to use Grutter’s shorthand, “a critical 
mass”—of underrepresented minority students. Id. 
at 329-30. Such a critical mass is necessary because 
“M y virtue of our Nation’s struggle with racial ine­
quality, such students are both likely to have experi­
ences of particular importance to [a university’s] 
mission, and less likely to be admitted in meaningful 
numbers [based] on criteria that ignore those experi­
ences.” Id. at 338.

Amici write separately to highlight several rea­
sons why critical mass is essential to the full realiza­
tion of diversity’s educational benefits. First, critical 
mass promotes individual dignity by creating an 
educational environment that encourages both un­
derrepresented minority students and their fellow 
students to explore and define their own unique 
identities. Second, critical mass facilitates students’



5

exposure to diversity within and among the racial 
groups that are underrepresented in classrooms and 
across the university campus. Third, because col­
leges and universities open pathways to leadership 
and opportunity in the larger sphere of public life, 
the critical mass inquiry must pay some attention to 
whether the University is fulfilling its mission of 
serving the broader community.

While petitioner purports to accept both the edu­
cational benefits of diversity and the importance of a 
critical mass of underrepresented minority students 
to achieve those benefits, Pet. Br. 26, her arguments, 
if accepted, would turn established precedent upside 
down. Distorting beyond recognition the Court’s 
prohibition on racial quotas, petitioner proposes to 
cap enrollment of underrepresented minority stu­
dents at the level achieved prior to Grutter through 
race-neutral means alone. Petitioner’s unduly rigid 
conception of critical mass, Pet. Br. 26-30, is both in­
consistent with this Court’s teachings and would se­
verely impair UT’s ability to achieve its educational 
mission.

There is no need to speculate about the devastat­
ing impact that petitioner’s proposed cap would have 
on the enrollment of African Americans and other 
underrepresented minority students. Between 1997 
and 2004, a ban on race-conscious admissions was in 
place, as a result of the Fifth Circuit’s decision in 
Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert, de­
nied, 518 U.S. 1033 (1996). During that period, UT 
took full advantage of race-neutral measures, includ­
ing expanded outreach, scholarships, and a state law 
guaranteeing admission for all Texas residents 
ranked at the top of their high school graduating



6

class. See Tex. Educ. Code § 51.803 (1997) (amended 
1999, 2007 & 2009) [hereinafter the Top Ten Percent 
Plan]. UT also instituted individualized review for 
applicants not admitted through the Top Ten Per­
cent Plan. See JA 374a-381a. From 1997 through 
2004, that whole-file review included the socio­
economic status of applicants’ families, extracurricu­
lar activities, community service, leadership quali­
ties, and multiple other factors—but it did not con­
sider race. Id.

Despite all of these race-neutral efforts, African- 
American student enrollment remained unaccepta­
bly low. Only 3.4% of the students in the freshman 
class that entered UT in 2002— shortly before Grut- 
ter was decided—were African Americans, and at no 
point between 1997 and 2004 did African-American 
students comprise more than 4.5% of the entering 
first-year class. Pet. App. 20a; JA 127a.2

In June 2003, Grutter overturned Hopwood. 
Thereafter, the University Board of Regents “author­
ized institutions within the University of Texas sys­
tem to examine whether to consider an applicant’s 
race and ethnicity in admissions in accordance with 
the standards enunciated in Grutter.” Pet. App. 21a 
(internal quotation marks and citation omitted). UT 
then conducted an extensive review of its admissions 
policies and ultimately concluded that it had failed 
to achieve a critical mass of African Americans and

2 This brief primarily focuses on the detrimental conse­
quences of petitioner’s arguments for African Americans, but 
amici also believe that UT’s consideration of race as one factor 
in its holistic review of all applicants, including other under­
represented minority students, is similarly constitutional.



7

other underrepresented minority students using only 
race-neutral measures. SJA la-39a.

The University’s educational judgment is fully 
supported by the results of its multi-year experiment 
with race-neutral alternatives and the review that it 
conducted of its admissions policies in 2003-04. 
Resp. Br. 41. In addition, amici highlight other con­
temporaneous evidence—specifically the proceedings 
of the University’s Task Force on Racial Respect and 
Fairness, which developed recommendations (includ­
ing necessary admissions reforms) to address notable 
incidents of racial hostility that occurred on campus 
during the same period that UT was reviewing its 
admissions policies.

Contrary to petitioner’s claims, the modest race­
conscious component that UT added to its admis­
sions process, beginning with its review of applicants 
for the 2005 freshman class, is an essential supple­
ment to the Top Ten Percent Plan. The vast major­
ity of UT students are admitted through the Top Ten 
Percent Plan, but race-conscious holistic review has 
resulted in meaningful increases in the overall level 
of African-American enrollment. Equally critical, 
holistic review provides flexibility to enhance diver­
sity among UT’s African-American students.

Petitioner’s proposal to eliminate race from the 
holistic review process could, if accepted, send a 
message to minority students that a critical element 
of their identity is irrelevant to, or even unwelcome 
at, UT. “The enduring hope is that race should not 
matter; the reality is that too often it does.” Parents 
Involved, 551 U.S. at 787 (Kennedy, J., concurring in 
part and concurring in the judgment). Pretending



that race plays no role in students’ construction of 
their own identities does not make it so. For Afri­
can-American students, especially at UT, racial iso­
lation, tokenism, the ever-present threat of racial 
stereotypes, and even overt prejudice can profoundly 
alter their experiences in ways that have a lasting 
and, often damaging, impact. UT’s pursuit of 
broader diversity and the educational benefits that 
flow from it help to mitigate these dangers and, thus, 
improve the quality of all students’ college experi­
ences.

ARGUMENT
I. Meaningful representation of African-

American students is necessary to achieve
the full educational benefits of diversity.

As petitioner acknowledges, “critical mass is de­
fined by reference to the educational benefits that 
diversity is designed to produce.” Pet. Br. 26 (quot­
ing Grutter, 539 U.S. at 330). For UT, as for the 
University of Michigan Law School in Grutter, those 
benefits include enhanced “cross-racial understand­
ing, . . . breaking] down racial stereotypes,” enabling 
students “to better understand persons of different 
races,” and creating “a path to leadership” that is 
“visibly open to talented and qualified individuals of 
every race and ethnicity.” Grutter, 539 U.S. at 330, 
332 (internal quotation marks and citations omit­
ted); SJA la-3a, 16a-17a.

There is no quota, target, or predetermined per­
centage of undergraduate enrollment that automati­
cally produces these benefits; nor could there be, as 
this Court has directed repeatedly. See Grutter, 539 
U.S. at 329-30, 334. For this reason, critical mass



9

cannot be defined by simple numerical calculations 
alone. Rather, critical mass depends on the quality, 
as much as the quantity, of individual students’ 
cross-racial interactions, as well as the context and 
community in which the particular university is 
situated.
A. A critical mass of underrepresented minor­

ity students helps break down stereotypes
and allows all students to explore, develop,
and express their individuality.
Obtaining a critical mass of underrepresented 

minority students is in no way inconsistent with 
promoting the individual dignity of all students. An 
important function of higher education is to provide 
students with an environment that helps them de­
velop their full potential through wide exposure to 
diverse individuals, ideas, and viewpoints. Indeed, 
this is one of the key educational benefits of diversity 
endorsed in Grutter, 539 U.S. at 324.

For many students, college is the first time they 
have meaningful opportunities to interact and prob- 
lem-solve with people from vastly different back­
grounds. “Due to a variety of factors— some influ­
enced by government, some not—neighborhoods in 
our communities do not reflect the diversity of our 
Nation as a whole.” Parents Involved, 551 U.S. at 
798 (Kennedy, J., concurring in part and concurring 
in the judgment). The lack of diversity at the 
neighborhood level contributes to the persistent 
“problem of de facto resegregation in schooling” at 
the K-12 level in Texas and throughout the nation. 
Id. at 788; see Marta Tienda & Sunny Xinchun Niu, 
Capitalizing on Segregation, Pretending Neutrality:



10

College Admissions and the Texas Top 10% Law, 
8 Am. L. & Econ. Rev. 312, 318-19 (2006); Resp. Br. 
8. When students who have been ‘“surrounded only 
by the likes of themselves”’ reach college, they often 
hold perspectives shaped by the limits of their for­
mative experiences. Bakke, 438 U.S. at 312 n.48 
(opinion of Powell, J.) (quoting William G. Bowen, 
Admissions and the Relevance of Race, Princeton 
Alumni Weekly 7, 9 (Sept. 26, 1977)). Too often, 
they are not even aware of the full extent of their 
lack of knowledge about others. These gaps in 
awareness and understanding permit racial stereo­
types to flourish in ways that have far-reaching so­
cial consequences, from the classroom to the broader 
campus and beyond.

Racial stereotypes stifle the educational envi­
ronment. They inhibit students of all races from en­
gaging in the atmosphere of “speculation, experi­
ment and creation—so essential to the quality of 
higher education.” Bakke, 438 U.S. at 312 (opinion 
of Powell, J.) (internal quotation marks and citation 
omitted). Not only can racial stereotypes irreparably 
harm students who are targeted by such false as­
sumptions, but they also diminish individual growth 
and self-realization for students who live their lives 
based on narrow and incomplete views about other 
people. See Grutter, 539 U.S. at 333.

Absent a critical mass, racial stereotypes are 
likely to remain entrenched for at least two reasons. 
First, having insufficient numbers of underrepre­
sented minority students reduces the likelihood of 
meaningful cross-racial interaction. Colleges and 
universities provide important opportunities to tran­
scend the restricted social patterns that many stu­



11

dents have previously experienced—with long-term 
positive consequences. See, e.g., Nicholas A. Bow­
man et al., The Long-Term. Effects of College Diver­
sity Experiences: Well-Being and Social Concerns 13 
Years After Graduation, 52 J.C. Student Dev. 729 
(2011) (finding that cross-racial interactions in col­
lege are positively related to personal growth, pur­
pose in life, recognition of racism, and volunteering 
behavior among college graduates in their mid-30s); 
Amicus Br. of Am. Educ. Res. Ass’n et al. at 14-16. 
In the absence of such intervention, racially segre­
gated social patterns are likely to persist. The lack 
of cross-racial interactions also diminishes educa­
tional opportunity. Conversely, “encountering un­
familiar and novel situations, people, and experi­
ences” fosters personal growth because it requires us 
to grapple with “uncertainty, instability, and possi­
bly anxiety” that stimulate individual learning and 
development. Sylvia Hurtado, Linking Diversity 
with the Educational and Civic Missions of Higher 
Education, 30 Rev. Higher Educ. 185, 189-90 (2007). 
Hence, critical mass both reduces racial stereotypes 
and enriches the educational environment as a 
whole—in classrooms, extracurricular activities, din­
ing halls, and more informal settings. Cf. Christian 
Legal Soc’y v. Martinez, 130 S. Ct. 2971, 2999 (2010) 
(Kennedy, J., concurring) (“Extracurricular activities 
. . . facilitate interactions between students, enabling 
them to explore new points of view, to develop inter­
ests and talents, and to nurture a growing sense of 
self.”).

Second, underrepresented minority students may 
not feel comfortable expressing their individuality 
when they are relegated to token status. Rather,



12

they may be pressured, even by well-meaning teach­
ers and fellow students, to serve as “spokespersons 
for their race.” Grutter, 539 U.S. at 319. When this 
happens, minority students may suppress their own 
distinctive and, perhaps unexpected, idiosyncratic, 
or contradictory views. Id. at 319-20, 330. In this 
way, stereotyping inhibits individuals and affects 
their ability to discover and develop their distinctive 
character. Cf. Lawrence v. Texas, 539 U.S. 558, 574 
(2003) (“At the heart of liberty is the right to define 
one’s own concept of existence, of meaning, of the 
universe, and of the mystery of human life.”) (inter­
nal quotation marks and citation omitted).

By contrast, having a meaningful representation 
of underrepresented minority students reduces the 
likelihood that that they will feel isolated or com­
pelled to conform to a forced social script. In such 
circumstances, “nonminority students learn there is 
no minority viewpoint but rather a variety of view­
points among minority students.” Grutter, 539 U.S. 
at 320 (internal quotation marks and citation omit­
ted).3

Thus, enrolling a critical mass of underrepre­
sented minority students offers them more freedom 
to define their own individual identities, rather than

3 Exposure to diverse individuals also helps foster improved 
cognitive skills, civic engagement, and other benefits. See gen­
erally Amicus Br. of Am. Educ. Res. Ass’n et al. As numerous 
researchers have shown, when individuals learn to work to­
gether in diverse teams, they produce better, more creative re­
sults. See, e.g., Scott E. Page, The Difference: How the Power of 
Diversity Creates Better Groups, Firms, Schools, and Society 
131-238 (2007) (discussing how diversity produces collective 
benefits).



13

being defined by others or defining themselves 
through the lens of racial stereotypes. Moreover, 
having a critical mass of under-represented minori­
ties encourages all students to grow and flourish as 
individuals by “diminishing the force of [racial] 
stereotypes” on campus and in the classroom. Grut- 
ter, 539 U.S. at 333.4

The point here is not that critical mass, by itself, 
solves all of the lingering effects of racial isolation in 
schools, neighborhoods, and the daily lives of many 
Americans. Rather, critical mass creates the condi­
tions for substantial educational benefits in the dis­
tinctive contexts of our nation’s colleges and univer­
sities, which can result in individual growth, greater 
cross-racial understanding, and, ultimately, social 
progress.

4 In assessing whether it was helping students break down 
stereotypes, it was particularly appropriate for UT to take ac­
count of classroom diversity as a “benchmark for critical mass.” 
Pet. Br. 30. As this Court recognized in Grutter, the educa­
tional benefits that diversity is designed to produce are particu­
larly salient at the classroom level. See 539 U.S. at 330; Resp. 
Br. 39. Indeed, the record developed by the University of 
Michigan Law School in Grutter included a similar assessment 
of diversity at the classroom level. See Resp. Br., Grutter v. 
Bollinger, 539 U.S. 306 (No. 02-241), 2003 WL 402236, at *6 
n.7. Petitioner’s critique of UT’s focus on small classes, Pet. Br. 
43-44, overlooks the pervasive racial isolation of African- 
American students across the curriculum, regardless of class 
size. See SJA 66a-150a; Resp. Br. 10, 39, 43-44. Overall, “79 
percent of [all] UT [undergraduate] classes had zero or one Af­
rican-American students.” Pet. App. 156a; cf. Int’l Bhd of 
Teamsters v. United States, 431 U.S. 324, 342 n.23 (1977) (rec­
ognizing that an “inexorable zero” can be probative evidence of 
racial inequity) (internal quotation marks and citation omit­
ted).



14

B. Critical mass cannot be assessed by lumping
together underrepresented minorities.

In assessing whether it was providing the wide 
exposure to different viewpoints necessary to break 
down stereotypes and promote individual autonomy, 
UT appropriately considered the very low level of Af­
rican-American students who matriculated during 
its 1997-2004 experiment with exclusively race- 
neutral admissions. During this period, UT enrolled 
an average of approximately 7,000 students in each 
freshman class. Yet, at most, there were only 309 
African Americans in any freshman class. JA 127a. 
And at no point between 1997 and 2004 did African 
Americans constitute more than 4.5% of any first- 
year class. Id.5

That low level of African-American enrollment is 
insufficient to obtain the educational benefits of di­
versity described in Section I.A supra, especially at a 
university, such as UT, with a very large student 
body and a sprawling campus. See Resp. Br. 4. 
Grutter permits a university to take such enrollment 
levels into consideration in its critical mass inquiry: 
“‘ [S]ome attention to numbers,’ without more, does 
not transform a flexible admissions system into a 
rigid quota.” Grutter, 539 U.S. at 336 (quoting 
Bakke, 438 U.S. at 323 (appendix to opinion of Pow­
ell, J.)) (alteration in original). Petitioner does not

5 Such persistent and comparatively low levels of African- 
American enrollment had a domino effect. Low levels of admis­
sions meant lower levels of enrollment; these patterns, in turn, 
discouraged others from applying and matriculating. See Angel 
Harris & Marta Tienda, Minority Higher Education Pipeline: 
Consequences of Changes in College Admissions Policy in Texas, 
627 Annals Am. Acad. Pol. & Soc. Sci. 60, 66-67, 77-78 (2010).



15

contest the importance of devoting some attention to 
numbers in the critical mass inquiry, but she ignores 
these low levels of African-American enrollment and 
instead lumps all underrepresented minority stu­
dents together and treats them as fungible. Cf. Pet. 
Br. 3, 4, 5, 26, 35. In petitioner’s view, a university 
would be precluded from taking any additional race­
conscious measures if the aggregate enrollment of all 
underrepresented minority student groups reached a 
particular level—even if 99% of such students were 
African Americans and only 1% were Latinos, or vice 
versa. No precedent supports this position.

To the contrary, in Parents Involved, the Court 
sharply criticized the Seattle School District for 
lumping together students of different racial back­
grounds. 551 U.S. at 723-24. Under Seattle’s plan, 
“a school with 50 percent Asian-American. students 
and 50 percent white students but no African- 
American, Native-American, or Latino students 
would qualify as balanced, while a school with 30 
percent Asian-American, 25 percent African- 
American, 25 percent Latino, and 20 percent white 
students would not.” Id. at 724 (emphasis added). 
The Court found it “hard to understand how a plan 
that could allow these results can be viewed as being 
concerned with achieving enrollment that is ‘broadly 
diverse.’” Id. (quoting Grutter, 539 U.S. at 329).

Petitioner’s exclusive focus on aggregate minority 
enrollment is equally flawed. See Resp. Br. 41-42. 
As the court of appeals recognized, “African- 
American and Hispanic students, for example, are 
not properly interchangeable for purposes of deter­
mining critical mass.” Pet. App. 67a. Paraphrasing 
this Court’s insight in another context, “ [s]ometimes



16

the grossest discrimination can lie in treating [indi­
viduals who] are different as though they were ex­
actly alike.” Jenness v. Fortson, 403 U.S. 431, 442 
(1971).

Petitioner’s unwillingness to disaggregate Latino 
and African-American enrollment is reason enough 
for this Court to reject her challenge to UT’s deter­
mination that it did not achieve a critical mass of 
underrepresented minorities through race-neutral 
admissions alone. Equally important, however, peti­
tioner fails to acknowledge that the critical mass in­
quiry “must be sensitive to important distinctions 
within these broad groups” of Latino and African- 
American students. Pet. App. 67a (emphasis added).

For instance, this Court has criticized Texas for 
ignoring the fact that Latino populations in different 
parts of the state have “divergent needs and inter­
ests.” League of United Latin Am. Citizens v. Perry, 
548 U.S. 399, 435 (2006). Similarly, Justice Powell 
recognized in Bakke that university admissions poli­
cies could consider “the variety of points of view, 
backgrounds and experiences of blacks in the United 
States.” Bakke, 438 U.S. at 323 (appendix to opinion 
of Powell, J.).

Thus, in its assessment of whether it has 
achieved a critical mass of underrepresented minor­
ity students, UT should be permitted—and, indeed, 
encouraged—to take into account whether its cam­
pus and classrooms are meaningfully representative 
of the rich diversity within and among underrepre­
sented minority groups. See Patricia Gurin et al., 
Diversity and Higher Education: Theory and Impact 
on Educational Outcomes, 72 Harv. Educ. Rev. 330,



17

360 (2002) (“Diversity enables students to perceive 
differences both within groups and between groups. . 
. For the alumni and students who participate in 
amici BEST and BSA, the benefits of exposure to 
such “diversity within diversity,” Resp. Br. 34, is 
particularly important to their learning process.
C. Because the benefits of diversity extend 

well beyond campus borders, the critical 
mass inquiry must ensure open paths to 
leadership and opportunity.

As part of the justification for its proposal to in­
clude race as one factor among many in its holistic 
review process, UT expressed concern that “the sig­
nificant differences between the racial and ethnic 
makeup of the University’s undergraduate popula­
tion and the state’s population prevent the Univer­
sity from fully achieving its mission.” SJA 24a (em­
phasis added). During UT’s multi-year experiment 
with race-neutral admissions, as explained in Sec­
tion I.B supra, African-American enrollment in in­
coming freshman classes never exceeded 4.5%, 
whereas African-American Texans then constituted 
over 10% of the state’s workforce and approximately 
12-13% of its high school graduates. Pet. App. 127a; 
JA 127a; SJA 3a. This significant discrepancy, in 
UT’s view, resulted in a “less-than-realistic envi­
ronment” on campus and in the classroom that was 
“not conducive to training the leaders of tomorrow.” 
SJA 24a-25a.6

6 It bears emphasis that UT’s consideration of such demo­
graphics “took place only when the University first studied 
whether a race-conscious admissions program was needed to 
attain critical mass.” Pet. App. 47a. As the court of appeals



18

This legitimate concern about significant racial 
disparities does not in any way suggest— as peti­
tioner claims—that UT’s pursuit of critical mass was 
designed to achieve “demographic proportionality.” 
Pet. Br. 27. At UT, as the court of appeals recog­
nized, “ [t]he need for a state’s leading educational 
institution to foster civic engagement and maintain 
visibly open paths to leadership . . . requires a de­
gree of attention to the surrounding community.” 
Pet. App. 50a. Indeed, “ [a] university presenting it­
self as open to all may be challenged when the 
state’s minority population grows steadily but minor­
ity enrollment does not,” as has been the case in 
Texas over the past decade. Id.

Opening pathways to leadership and opportunity 
is particularly critical for African-American students 
because they were excluded from the University for 
much of its history—first by law and then in effect. 
See Hopwood v. Texas, 861 F. Supp. 551, 554 (W.D. 
Tex. 1994) (“Discrimination against blacks in the 
state system of higher education is well documented 
in history books, case law, and the State’s legislative 
history.”), rev’d on other grounds, 78 F.3d 932; 
Sweatt, 339 U.S. at 634; Resp. Br. 3-4; see generally 
Dwonna Goldstone, Integrating the 40 Acres: The 
Fifty— Year Struggle for Racial Equality at the Uni­
versity of Texas (2006) (charting halting progress to­
wards integration from Sweatt through Hopwood). 
As UT candidly concedes, it is “painfully aware” that 
“vestiges of de jure segregation” have persisted in

recognized, “[t]he summary judgment record shows that demo­
graphics are not consulted as part of any individual admissions 
decision.” Id.



19

the decades after this Court’s decision in Sweatt. 
Resp. Br. 4 (citing SJA 14a and Sweatt, 339 U.S. 
629).7 This history has a continuing corrosive im­
pact on the current makeup of Texas leadership, and 
the way in which African-American students and 
their families perceive the University today. Accord­
ingly, UT has a strong imperative “to go beyond pre­
sent achievements, however significant, and to rec­
ognize and confront the flaws and injustices that 
remain” in order to ensure “that opportunity is not 
denied on account of race.” Parents Involved, 551 
U.S. at 787 (Kennedy, J., concurring in part and con­
curring in the judgment). For these reasons, it was 
permissible for UT to stress the importance of “send­
ing a message that people of all stripes can succeed 
at UT.” Pet. App. 50a; Resp. Br. 4; cf. Pet. Br. 28.

UT’s interest in visibly open paths to leadership 
is fundamentally pedagogical—“focused on enhanc­
ing the university experience” for its students. Pet. 
Br. 26. Yet this interest is not exclusively “inward­
facing,” as petitioner alleges. Id. To the contrary, 
UT acknowledges that its relationship with—and re­
liance upon the support of—the community it serves 
is critical to its ultimate success in fulfilling its edu­
cational mission of training tomorrow’s leaders. As

7 After the Court forced UT Austin to open its law school to 
African Americans, change occurred slowly. Beginning in the 
1970s, the federal government undertook a court-ordered inves­
tigation of Texas’s higher education system and found that the 
state had failed to eliminate vestiges of its formerly segregated 
system. See Hopwood, 861 F. Supp. at 555-57 (chronicling this 
investigation and Texas’s subsequent efforts to come into com­
pliance). To date, the federal government has yet to announce 
that Texas has satisfied its obligations under federal civil 
rights law.



20

the Court explained in Grutter, “ [a]ll members of our 
heterogeneous society must have confidence in the 
openness and integrity of the educational institu­
tions that provide this training.” 539 U.S. at 332. 
Indeed, UT’s leaders have long recognized that 
“ [p]ublic confidence is the only real endowment of a 
state university.” University of Texas System Ad­
ministration, Standards of Conduct Guide 3 (2012) 
(quoting H.Y. Benedict, UT President (1927-37)), 
available at
http://www.utsystem.edu/systemcompliance/SOCcom 
bined.pdf.

For many decades, this Court has understood the 
dynamic relationship between higher educational 
institutions and the communities that they serve, 
especially in the context of UT. When the Court 
struck down UT Law School’s policy of racial segre­
gation in Sweatt, it did so in part based on its recog­
nition that a law school “cannot be effective in isola­
tion from the individuals and institutions with which 
the law interacts.” 339 U.S. at 634. The Court 
strongly endorsed this premise by citing it in Grut­
ter. See 539 U.S. at 332 (quoting Sweatt, 339 U.S. at 
634). Thus, petitioner’s purported dichotomy be­
tween “inward-facing” and “outward-facing” concepts 
of diversity, Pet. Br. 26, is not only a demonstrably 
inaccurate assessment of the University’s interests 
in diversity, but it also is premised on a fundamental 
misreading of settled law.8

8 In any event, regardless of whether Grutter’s conception of 
diversity is inward-facing, outward-facing, or both, UT had not 
attained a critical mass of African Americans when it decided 
to reinstitute race-conscious admissions in 2004. See Section 
I.B, supra, and Section II, infra.

http://www.utsystem.edu/systemcompliance/SOCcom


21

II. The University’s Task Force on Racial Re­
spect and Fairness provided additional evi­
dence that UT’s race-neutral efforts did not 
yield meaningful African-American repre­
sentation when race-conscious admissions 
were banned in 1997-2004.

In the eight years between Hopwood and Grutter, 
UT engaged in “serious, good faith consideration” 
and robust implementation of race-neutral alterna­
tives, Grutter, 539 U.S. at 339, and found them in­
sufficient to provide a “critical mass” of underrepre­
sented minority students, id. at 329-30. The Univer­
sity’s experiences with race-neutral alternatives, as 
well as the data produced in its subsequent review of 
admissions in 2003-04, provide ample evidence to 
support UT’s educational judgment that considera­
tion of race as one factor in its individualized review 
is necessary to fully obtain the educational benefits 
of diversity. See Resp. Br. 41.9

As discussed above, “critical mass is defined by 
reference to the educational benefits that diversity is 
designed to produce.” Grutter, 539 U.S. at 330. 
Those benefits are qualitative as well as quantita­
tive. See Section I supra. Thus, it was entirely 
proper for UT to rely on student surveys in which

9 Petitioner contends that UT should be compelled to satisfy 
a “strong basis in evidence” standard to demonstrate the need 
for promoting diversity. See Pet. Br. 31-33. For the reasons 
articulated by UT and the court of appeals, see Resp. Br. 49-50; 
Pet. App. 37a-42a, that standard, derived from the context of 
reviewing laws to remedy past or present discrimination, is in­
applicable to the diversity interest asserted here. At any rate, 
the evidence relied upon by UT fully satisfies that “strong ba­
sis” standard.



22

“[minority students reported feeling isolated, and a 
majority of all students felt there was ‘insufficient 
minority representation’ in classrooms for ‘the full 
benefits of diversity to occur.’” Pet. App. 22a (cita­
tion omitted). As many participants in amicus BEST 
and former members of amicus BSA can attest, sub­
stantial racial isolation was an unavoidable aspect of 
campus life for those who attended UT during the 
post-Hopwood, pre-Grutter period (1997-2004).

In addition, there is other contemporaneous evi­
dence that provides relevant “ [cjontext” that “mat­
ters,” Grutter, 539 U.S. at 327, for the University’s 
decision to reintroduce race as a factor in its holistic 
admissions program. Cf. Tennessee v. Lane, 541 U.S. 
509, 524-25 (2004) (cataloguing pre-enactment evi­
dence that was part of the historical “backdrop” for 
government action). During the same period that 
UT was undergoing a thorough review of its admis­
sions policies, a number of racially charged incidents 
occurred on campus. For instance, a complaint was 
lodged alleging racial profiling by the campus police, 
including an incident where an officer demanded 
that an African-American member of student gov­
ernment show his identification in the student un­
ion; one majority-white fraternity was suspended 
and another was sanctioned for sponsoring parties 
where attendees dressed in “blackface” and derided 
African Americans; and vandals egged the campus’s 
statue of Martin Luther King, Jr. on the national 
holiday celebrating the civil rights leader’s birth. 
See Todd Ackerman, UT Task Force Calls for Greater



23

Racial Sensitivity, Houston Chron., Jan. 21, 2004, at 
A17.10

These incidents were not the first, nor were they 
the last, episodes of racial hostility on campus; but in 
combination, they sparked student protests and 
prompted the University to convene a Task Force on 
Racial Respect and Fairness in March 2003, consist­
ing of students, faculty, and staff. Id. UT charged 
the Task Force with making recommendations for 
improvements to the campus climate. See Univer­
sity of Texas at Austin, Report of the Task Force on 
Racial Respect and Fairness, at 3 (2004), available at 
http://www.utexas.edu/news/attach/2004/2262_repor 
t_respect.pdf [hereinafter the Task Force Report].

After ten months of study and meetings, the Task 
Force issued a report in January 2004, while the 
University’s review of its admissions policies was 
still pending. The Task Force proposed a variety of 
interventions. For instance, supporting the neces­
sity of visibly open pathways to leadership described 
in Section I.C supra, the Task Force Report recom­
mended that UT “emphasize often and unequivocally 
the University’s commitment to serve all Texas resi­

10 At the time, the Martin Luther King Jr. statue was the 
only monument commemorating a person of color on a campus 
that had a number of statues of Confederate generals, and even 
a building named after a Ku Klux Klan leader. That building 
was subsequently renamed after significant advocacy. See 
Thomas D. Russell, “Keep Negroes Out of Most Classes Where 
There Are a Large Number of Girls”: The Unseen Power of the 
Ku Klux Klan and Standardized Testing at the University of 
Texas, 1899-1999, 52 S. Tex. L. Rev. 1, 35 (2010); Destinee 
Hodge, Simkins Hall Renamed in Unanimous Decision, Daily 
Texan, July 15, 2010.

http://www.utexas.edu/news/attach/2004/2262_repor


24

dents, particularly those who have been historically 
excluded from higher education in the state of 
Texas.” Task Force Report at 6.

The Task Force also recommended that UT 
“[institute a photo roster privacy policy that would 
protect students of color who are the only members 
of their racial/ethnic group in classes” and permit 
them to “request that their photo not be included.” 
Id. at 12. “The concern [was] that these students 
[were] repeatedly called on by well-intentioned in­
structors hoping to be inclusive, but the result [was] 
often discomfort for the students” who felt as if they 
were under a microscope as spokespersons for their 
race. Id. Just a few months before the Task Force 
issued its report, this Court underscored the same 
concern—that racially isolated students may feel 
compelled to be “spokespersons for their race” in the 
classroom. See Grutter, 539 U.S. at 319. And that 
concern also was one of the grounds for the Univer­
sity’s conclusion that it had not achieved a critical 
mass of underrepresented minority students. As 
UT’s review of its admissions policies revealed, the 
vast majority of undergraduate classes had zero or 
only one African-American or Latino students. See 
SJA 66a-150a; see also supra at n.4.

Equally relevant for purposes of this case, the 
Task Force concluded that the need to increase the 
recruitment, retention, and advancement of under­
represented minority students was a necessary com­
ponent of any plan to create a more inclusive campus 
environment. See Task Force Report at 5, 15-17. In 
his response to the Task Force Report, Larry Faulk­
ner, then President of UT, made explicit the connec­
tion between improving campus climate and achiev-



25

ing a critical mass of underrepresented minority 
students: As a “major innovation for the near term,” 
he referenced the pending proposals for “the rein­
stallation of race-sensitive admissions at the under­
graduate, graduate, and professional levels.” Uni­
versity of Texas at Austin, Office of the President, 
Comments on the Report of the Task Force on Racial 
Respect and Fairness T[ 41, May 10, 2004, available 
at http://www.utexas.edu/president/speeches/rrf_ 
051004.pdf.11 Affirming the pressing need to im­
plement these proposals, there were additional inci­
dents of racial hostility in the months after the Task 
Force issued its report, including another act of van­
dalism targeting UT’s Martin Luther King, Jr. 
statue. See David Kassabian, Officials Talk Camera 
Upgrades: New Technology Would Detect Suspicious 
Acts Around MLK Statue, Daily Texan, Aug. 27, 
2004.

The Task Force Report and President Faulkner’s 
response belie petitioner’s claim that President 
Faulkner rushed to judgment when he issued a 
statement, on the day Grutter was decided, express­

11 This connection also is supported by research findings 
that more diverse colleges typically have more racially inclusive 
campus climates. See, e.g., Rebecca L. Stotzer & Emily 
Hossellman, Hate Crimes on Campus: Racial/Ethnic Diversity 
and Campus Safety, 27 J. of Interpersonal Violence 644, 654-55 
(2012) (finding that reported hate crimes are lower on cam­
puses with higher percentages of African-American and Latino 
students); Deirdre M. Bowen, Brilliant Disguise: An Empirical 
Analysis of a Social Experiment Banning Affirmative Action, 85 
Ind. L.J. 1197, 1199 (2010) (“Underrepresented minority stu­
dents in states that permit affirmative action encounter far less 
hostility and internal and external stigma than students in 
anti-affirmative action states.”).

http://www.utexas.edu/president/speeches/rrf_


26

ing his view that race-conscious admissions were a 
necessary supplement to the Top Ten Percent Plan 
and other race-neutral alternatives. Cf. Pet. Br. 5. 
His suggestion was grounded in the context of the 
Task Force’s proceedings, as well as UT’s prior, 
eight-year experience with race-neutral admissions 
post Hopwood.

III. Consideration of race in UT’s holistic ad­
missions process is vital to create a 
broadly diverse student body.

UT’s race-conscious holistic admissions program 
is an essential supplement to the Top Ten Percent 
Plan and other race-neutral efforts. While this com­
ponent of the admission program is “modest” in its 
approach, Grutter, 539 U.S. at 393 (Kennedy, J., dis­
senting), its impact is meaningful. Pursuant to 
Texas law, the vast majority of available slots in 
each entering class at UT are filled automatically 
through the Top Ten Percent Plan. Tex. Educ. Code 
§ 51.803 (1997) (amended 1999, 2007 & 2009). Yet, 
in the years between 2004 (when the University de­
cided to use race as one factor among many in the 
holistic component of its admissions policy) and 2008 
(when petitioner applied for admission), a sizable 
percentage of UT’s African-American student popu­
lation has enrolled through the holistic process. See 
SJA 156a-157a. Moreover, UT’s race-conscious ho­
listic admissions process affords the University en­
hanced flexibility to admit students of all races who 
will contribute to broad diversity on campus and in 
the classroom, even if they were not ranked at the 
very top of their high school class. In particular, the 
race-conscious, individualized review process pro­
vides the opportunity to obtain the educational bene­



27

fits of diversity both within and among underrepre­
sented minority student communities.

A. Race-conscious holistic review is an im­
portant supplement to the Top Ten Per­
cent Plan.

Although petitioner contends that UT’s race­
conscious holistic admissions program has only “an 
infinitesimal impact on critical mass in the student 
body as a whole,” Pet. Br. 21 (quoting Pet. App. 107a 
(Garza, J., specially concurring)), “it is undisputed in 
the record before the Court that the consideration of 
race in admissions does increase the level of minor­
ity enrollment,” Pet. App. 163a n.14. Comparing the 
incoming freshman class for the 2004-2005 school 
year (the last class admitted exclusively through 
race-neutral admissions) with the incoming fresh­
man class for the 2008-2009 year (the class to which 
Fisher applied), total African-American enrollment 
increased by 21.4%. Moreover, in the first four en­
tering classes after UT’s 2004 decision to use race­
conscious admissions, 435 out of the total of 1,544 
African-American students—a full 28%—were ad­
mitted through the holistic admissions program. See 
SJA 156a-157a.

These raw numbers only begin to tell the story. 
Research confirms that increases in the enrollment 
of African-American students, even on a relatively 
small scale, have a multiplier effect. A recent study 
of selective universities found that even “a one per­
centage point increase in the share of [ ] students [of 
color] in the entering freshman cohort is associated 
with a 3 or 4 percent increase in the odds of interact­
ing with students of different racial backgrounds.”



28

Thomas J. Espenshade & Alexandria Walton Rad­
ford, No Longer Separate, Not Yet Equal: Race and 
Class in Elite College Admission and Campus Life 
199 (2009) [hereinafter Espenshade & Radford, No 
Longer Separate};12 see also Sylvia Hurtado, Benefits 
and Barriers: Racial Dynamics of the Undergraduate 
Experience, in The Next Twenty-Five Years: Affirma­
tive Action in Higher Education in the United States 
and South Africa 196, 197 (David L. Featherman et 
al. eds., 2010) (finding that “white students from 
predominately white environments who attended 
universities with relatively higher percentages of 
students of color tended to report frequent positive 
cross-race interactions”).13

12 While some of petitioner’s amici rely on this study, see, 
e.g., Amicus Br. of Cal. Ass’n. of Scholars, et al. at 26-27, they 
ignore important findings, like the one described in the text, 
and misconstrue others. Notably, this study also provides evi­
dence demonstrating that, on a nationwide scale, percentage 
plans would be even less effective than UT’s Top Ten Percent 
Plan in ensuring meaningful representation of African- 
American students. See Espenshade & Radford, No Longer 
Separate at 362-64; cf. Jessica S. Howell, Assessing the Impact 
of Eliminating Affirmative Action in Higher Education, 28 J. 
Labor Econ. 113, 116 (2010) (predicting that African-American 
and Latino enrollment at the most selective colleges and uni­
versities would decline 10.2% if race-neutral admissions were 
mandated nationwide).

13 Even if petitioner were correct that UT’s race-conscious 
program had only a small impact on enrollment, that would not 
doom the constitutionality of the policy. Cf. Pet. Br. 40-41. Al­
though Parents Involved questioned the necessity of a K-12 
student assignment plan that had minimal statistical impact, 
the Court noted that this plan involved rigid, binary racial 
classifications that could be “determinative standing alone.” 
551 U.S. at 723; Pet. App. 69a-70a. In Parents Involved, the 
Court distinguished the type of individualized review, at issue



29

Notwithstanding these meaningful increases in 
African-American enrollment, UT acknowledges that 
it has not yet achieved a critical mass of underrepre­
sented minorities. While UT has taken strides to 
promote a more welcoming and inclusive campus 
climate, racial hostility directed towards African- 
American students has not entirely abated.14 More­
over, African-American students are still repre­
sented at mere token levels in too many classrooms 
and other settings on campus. In the face of these 
challenges, members of amicus BSA and other cur­
rent African-American students along with alumni 
participants in amicus BEST—like the prior genera­
tions that fought to integrate UT— are committed to 
improving the campus community. For instance, one 
current student recently founded an online newspa­
per aiming to feature the voices of African-American

in Grutter and here, where race is considered “as part of a 
broader effort to achieve ‘exposure to widely diverse people, 
cultures, ideas, and viewpoints.’” Parents Involved, 551 U.S. at 
723 (quoting Grutter, 539 U.S. at 330); see also id. at 793 (Ken­
nedy, J., concurring in part and concurring in the judgment) 
(distinguishing Seattle’s “rigid criteria” from the University of 
Michigan Law School’s holistic review).

14 See, e.g., Ahsika Sanders, Racial Conflicts Tarnish His­
tory of Roundup, Daily Texan, Apr. 13, 2012 (connecting a re­
cent incident of hostility to the history of racial tensions be­
tween fraternity members and African-American students at 
annual spring fraternity parties); Ralph K.M. Haurwitz, UT 
Student Paper Issues Apology for Cartoon, Austin American- 
Statesman, Mar. 28, 2012 (discussing apology issued by Daily 
Texan for racialized editorial cartoon about the fatal shooting 
of Trayvon Martin); Andrew Freidenthal, Shameful Graffiti 
Paints Larger Picture, Daily Texan, Sept. 22, 2008 (reporting 
on a drawing posted in a campus bathroom stall depicting 
President Obama lynched and hanging from a tree).



30

students so that they do not feel invisible on campus. 
As she explained, “I just think there are a lot of 
issues involving the black community at UT . . . that 
don’t really get reported about.” Bobby Blanchard, 
New UT Publication Brings Different Perspectives to 
40 Acres, Daily Texan, May 2, 2012. Contrary to pe­
titioner’s claim that critical mass should be capped 
at the level obtained through race-neutral means, 
amici firmly believe that—consistent with Grutter— 
UT can and, indeed, should do more, not less, to en­
sure that all students fully attain the educational 
benefits of diversity.

B. Race-conscious holistic review admits 
students likely to promote the educa­
tional benefits of diversity.

Race-conscious holistic review helps the Univer­
sity achieve its goal of ensuring that its student body 
is “both exceptionally academically qualified and 
broadly diverse.” Grutter, 539 U.S. at 329 (emphasis 
added) (internal quotations and citation omitted); cf. 
Parents Involved, 551 U.S. at 722. The University’s 
holistic admissions process provides flexibility to 
identify and admit students who bring a set of other 
talents and leadership skills that are important to 
realizing the benefits of diversity, even if they are 
not in the top ten percent of their high school class.

Meaningful representation of African Americans 
among both Top Ten Percent and non-Top Ten Per­
cent students is critical to achieving the educational 
benefits of diversity. In particular, race-conscious 
holistic review yields uniquely qualified students 
who otherwise may have been overlooked. Students 
admitted through the holistic review process



31

contribute to the vibrancy and diversity of the 
overall UT student community and also enhance the 
degree of diversity within the African-American 
community at UT.

Petitioner’s proposed race-neutral approach 
might preserve some racial diversity through Top 
Ten Percent Plan admissions, on the one hand, but it 
would likely prevent any improvement in the racial 
diversity in holistic review admissions, on the 
other—with significant adverse consequences for 
UT’s educational mission. During UT’s eight-year 
experiment with race-neutral admissions, the per­
centage of African-American students who were not 
admitted through the Top Ten Percent Plan stag­
nated at 3-4%. SJA 157a. Between 2005 and 2008, 
however, after UT reintroduced race as one factor in 
its individualized review, African-American enroll­
ment as a percentage of non-Top Ten Percent enrol- 
lees increased. Id.

Of course, as UT emphasizes, it is not just under­
represented minorities who can benefit from consid­
eration of race as one factor among many in UT’s ho­
listic review process. Pet. App. 46a-47a. Without 
the ability to consider race in its holistic admissions 
process, UT could not decide, for instance, that a 
non-Top Ten Percent “white student who has dem­
onstrated substantial community involvement at a 
predominantly Hispanic high school may contribute 
a unique perspective.” Id. at 46a. Yet, such indi­
viduals—along with African Americans and Latinos 
who are, for example, talented debaters or musi­
cians—are precisely the type of students who can 
help the University promote its goals of increasing 
cross-racial understanding, breaking down racial



32

stereotypes and, ultimately, creating an educational 
environment where students feel free to develop 
their individuality.

C. Excluding race from individualized re­
view would demean many students’ indi­
vidual dignity.

Petitioner seeks an admissions policy in which 
virtually any aspect of students’ experience, back­
ground, and identity can be considered, except for 
their race. Singling out this one factor, among so 
many others, contradicts Grutter’s requirement that 
a university’s individualized review must be ‘“flexi­
ble enough to consider all pertinent elements of di­
versity^]’” 539 U.S. at 337 (quoting Bakke, 438 U.S. 
at 318) (opinion of Powell, J.). Moreover, it sends a 
message to minority students that a critical element 
of their identity is irrelevant to, or even unwelcome 
at, UT.15 That result is neither constitutionally 
compelled nor pedagogically advisable in a state and 
on a campus where race remains a salient factor in 
students’ experiences. See Bartlett v. Strickland, 
556 U.S. 1, 25 (2009) (“Much remains to be done to

15 Taken to an extreme, a purely race-neutral holistic re­
view process could result in “a form of viewpoint discrimina­
tion” insofar as it would require admissions officials to scrub all 
references to race from students’ essays and every other aspect 
of their application files before they are evaluated. See Gerald 
Torres, Fisher v. University of Texas: Living in the Dwindling 
Shadow of LBJ’s America, 65 Vand. L. Rev. En Banc 97, 110 
(2012). Moreover, a race-neutral process may encourage ad­
missions officials to make stereotypical assumptions about ap­
plicants’ race based on purportedly race-neutral aspects of ap­
plication files—for example, surnames—that may or may not 
say anything about their experiences or identities in our in­
creasingly multi-cultural society.



33

ensure that citizens of all races have equal opportu­
nity to share and participate in our democratic proc­
esses and traditions.”).

Negotiating life as an underrepresented minority 
can fundamentally affect the way an individual 
views the world: “Just as growing up in a particular 
region or having particular professional experiences 
is likely to affect an individual’s views, so too is one’s 
own, unique experience of being a racial minority in 
a society, like our own, in which race unfortunately 
still matters.” Grutter, 539 U.S. at 333. Yet, the 
University does not premise its need for a broadly 
diverse student body on any belief that minority stu­
dents always (or even consistently) express some 
characteristic minority viewpoint on any issue. To 
the contrary, individualized race-conscious review 
helps to overcome stereotypes suggesting that all 
students of color (or any students for that matter) 
think alike. As explained in Section I.A supra, the 
presence of different types of students of various 
races, with unique perspectives and viewpoints, is 
the hallmark of UT’s push for broader diversity.

For these reasons, requiring the University to ex­
clude consideration of race from its holistic admis­
sions program would force it “to become a much dif­
ferent institution and sacrifice a vital component of 
its educational mission,” as this Court recognized in 
Grutter, 539 U.S. at 340. Percentage plans, by 
themselves, “may be a race-neutral means of increas­
ing minority enrollment,” but “they are not a worka­
ble alternative— at least in a constitutionally signifi­
cant sense—because ‘they may preclude the univer­
sity from conducting the individualized assessments 
necessary to assemble a student body that is not just



34

racially diverse, but diverse along all the qualities 
valued by the university.”’ Pet. App. 54a (quoting 
Grutter, 539 U.S. at 340); see also Resp. Br. 31-36. 
While the Top Ten Percent Plan did achieve some 
progress, it should not limit UT’s ability to do more 
to expand opportunities for students of all races.

CONCLUSION
For the foregoing reasons, the Court should af­

firm the judgment of the Fifth Circuit.
Respectfully submitted,
Debo P. Adegbile 

A cting Director Counsel 
Counsel of Record 

Elise C. Boddie 
Damon T. Hewitt 
Leticia V. Smith-Evans 
Rachel M. Kleinman 
NAACP Legal Defense & 

Educational Fund, Inc.
99 Hudson St., 16th Floor 
New York, NY 10013 
(212) 965-2200 
dadegbile@naacpldf.org

Joshua Civin 
NAACP Legal Defense & 

Educational Fund, Inc. 
1444 I St., NW, 10th Floor 
Washington, DC 20005

Counsel for Amici Curiae

August 13, 2012

mailto:dadegbile@naacpldf.org