Fisher v. University of Texas at Austin Brief Amici Curiae in Support of Respondents

    N o. 14-981

In The

Supreme Court ot tfje Untteb States;

Abigail Noel Fisher,
Petitioner,

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

On Writ o f Certiorari to the United States 
Court o f 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

Sherrilyn Ifill 
Director-Counsel 

Janai Nelson 
Christina Swarns 
Jin Hee Lee 
Rachel M. Kleinman 
Monique Lin-Luse 
Deuel Ross 
Liliana Zaragoza 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector Street, 5th Floor 
New York, NY 10006

November 2, 2015

John Paul Schnapper- 
Casteras *

NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I Street NW 
Washington, DC 20005 
202-682-1300 
jschnapper@naacpldf.org

* Counsel of Record

mailto:jschnapper@naacpldf.org


TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................iii
INTEREST OF AMICI CURIAE.................. ............ . 1
INTRODUCTION AND

SUMMARY OF ARGUMENT................................ 3
ARGUMENT..................................................................5
I. PETITIONER’S CASE OFFERS NO BASIS

TO CHALLENGE THIS COURT’S 
PRECEDENTS AFFIRMING DIVERSITY IN 
HIGHER EDUCATION AS A COMPELLING 
GOVERNMENTAL INTEREST.............................. 5

II. CONSIDERATION OF RACE IN UT’S
HOLISTIC ADMISSIONS PROCESS IS 
NARROWLY TAILORED TO ACHIEVE A 
DIVERSE STUDENT BODY............................ ....10

A. History amply demonstrates that race­
conscious holistic review is a necessary 
supplement to the Top Ten Percent Plan 
to achieve a broadly diverse 
student body.....................................................11

B. Overhauling UT’s policy would distort
established precedent and impair UT’s 
ability to carry out its 
educational mission........................................ 16

C . A student’s self-reported racial identity
is an act of important self-definition that 
must be permitted, respected, 
and considered.............................................. ..20



11
III.UNIVERSITIES CHARGED WITH 

PREPARING OUR NATIONS LEADERS 
HAVE A COMPELLING INTEREST IN 
ENSURING THAT ALL STUDENTS 
RECEIVE THE BENEFITS OF DIVERSITY... 22

A. A critical mass of underrepresented 
minorities substantially benefits
all students.......................................................23

B. A critical mass of broadly diverse
underrepresented minorities is an 
essential component of the 
constitutionally permissible interest of 
student body diversity..... ..............................27

C . A diverse graduating class opens
pathways to leadership and fosters 
public confidence and trust in 
educational institutions.................................29

CONCLUSION.............................................................31



TABLE OF AUTHORITIES

Cases

Adams v. Bell,
711 F.2d 161 (D.C. Cir. 1983)............................ . 1

Christian Legal Soc’y v. Martinez,
130 S. Ct. 2971 (2010)............................................ 24

Cleveland Bd. of Educ. v. LaFleur,
414 U.S. 632 (1974)................................................ 24

DeFunis v. Odegaard,
416 U.S. 312 (1974).......  8

Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013).................................... .passim

Fisher v. Univ. of Tex. at Austin,
758 F.3d 633 (5th Cir. 2014)......................... .passim

Fisher v. Univ. of Tex. at Austin,
631 F.3d 213 (5th Cir. 2011)..................................17

Fisher v. Univ. of Tex. at Austin,
645 F. Supp. 2d 587 (W.D. Tex. 2009),
aff’d, 631 F.3d 213 (5th Cir. 2011).................. 11-12

FW/PBS, Inc. v. Dallas,
493 U.S. 215 (1990)...................................................9

Geier v. Bredesen,
453 F. Supp. 2d 1017 (M.D. Tenn. 2006)............... 1

Gratz v. Bollinger,
539 U.S. 244 (2003)

iii

1,6



IV

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

Hollingsworth v. Perry,
133 S. Ct. 2652 (2013)............................................  10

Hopwood v. Texas,
78 F.3d 932 (5th Cir. 1996)...............................  1, 11

Hopwood v. Texas,
861 F. Supp. 551 (W.D. Tex. 1994), rev’d 
on other grounds, 78 F.3d 932 (5th Cir.
1996).........................................................................6, 7

Int’l Bhd. of Teamsters v. United States,
431 U.S. 324 (1977).................................................. 24

Lawrence v. Texas,
539 U.S. 558 (2003).................................................. 32

Lewis v. Cont’l Bank Corp.,
494 U.S. 472 (1990)......   9

Missouri ex rel. Gaines v. Canada,
305 U.S. 337 (1938).................................................... 1

Obergefell v. Hodges,
135 S. Ct. 2584 (2015)..............................................32

Parents Involved in Cmty. Sch. v. Seattle 
Sch. Dist. No. 1,
551 U.S. 701 (2007)................................  3, 14, 25, 27

Plyler v. Doe,
457 U.S. 202 (1982).................................................. 27

Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978)..................................... ....passim



V

Sipuel v. Bd. of Regents of Univ. of Okla.,
332 U.S. 631 (1948)...................................................1

Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998).......................... .......................... 9

Sweatt v. Painter,
339 U.S. 629 (1950)............ .......................  1, 6, 7, 30

Texas Dept, of Hous. and Cmty. Affairs v.
Inclusive Cmty. Project, Inc.,
135 S. Ct. 2507 (2015)............................... 22, 24, 25

Texas v. Lesage,
528 U.S. 18 (1999).................................................. ...9

United States v. Fordice,
505 U.S. 717 (1992)............................................ . 1, 7

United States v. Windsor,
133 S. Ct. 2675 (2013)..............................................32

Veasey v. Abbott,
796 F.3d 487 (5th Cir. 2015).....................................7

Wright v. Rockefeller,
376 U.S. 52 (1964)................................   26

Statutes

Tex. Educ. Code Ann. § 51.803 (West 1997)
(amended 2015)...........................................................4



VI

O ther A uthorities

Adam D. Chandler, How (Not) To Bring An 
Affirmative-Action Challenge, 122 Yale 
L.J. Online 85 (2012).............................................9-10

Ahsika Sanders, Racial Conflicts Tarnish 
History of Roundup, Daily Texan, Apr.
13, 2012.....................   19

Akhil Reed Amar & Neal Kumar Katyal,
Bakke’s Fate, 43 UCLA L. Rev. 1745
(1996)....................................................  28

Alberto Long, Bleach or No Bleach, Balloon 
Attacks in West Campus Cause 
Controversy, Daily Texan, Sept. 14, 2013............. 19

Andrew Freidenthal, Shameful Graffiti 
Paints Larger Picture, Daily Texan, Sept.
22, 2008......    19

Bobby Blanchard, New UT Publication 
Brings Different Perspectives to 40 Acres,
Daily Texan. May 2, 2012........................................19

The Common Application, Writing 
Requirements for the Common App, 
https://www.commonapp.org/whats- 
appening/application-updates/writing- 
requirements-common-app..................................... 20

David Ng, Jefferson Davis statue deemed 
racist to be relocated at UT Austin, L.A.
Times, Aug. 13, 2015................................................ 19

https://www.commonapp.org/whats-appening/application-updates/writing-requirements-common-app
https://www.commonapp.org/whats-appening/application-updates/writing-requirements-common-app
https://www.commonapp.org/whats-appening/application-updates/writing-requirements-common-app


Devon W. Carbado and Cheryl I. Harris, The 
New Racial Preferences, 96 Cal. L. Rev.
1139 (2008)................................................................ 21

Dr. Martin Luther King, Jr., Address at the 
Ebenezer Baptist Church, The American 
Dream (July 4, 1965) ...............................................32

Dwonna Goldstone, Integrating the 40 Acres:
The Fifty-Year Struggle for Racial
Equality at the University of Texas (2006)............6

The Effect of Segregation and the
Consequences of Desegregation: A Social 
Science Statement, reprinted in 37 Minn.
L. Rev. 427 (1953).........................   26

Elise C. Boddie, The Sins of Innocence in 
Standing Doctrine, 68 Vand. L. Rev. 297 
(2015)............................................................................ 9

Gerald Torres, Fisher v. University of Texas:
Living in the Dwindling Shadow of LBJ’s 
America, 65 Vand. L. Rev. En Banc 97 
(2012) .......................................................................................21

Jasmine Johnson, For Black Male Students 
at UT-Austin, Data Tells Different Story 
about Diversity, Daily Texan, Nov. 25,
2013............................................................................. 18

Jessica S. Howell, Assessing the Impact of 
Eliminating Affirmative Action in Higher 
Education, 28 J. Labor Econ. 113 (2010).............. 18

vii



vm
Kolten Parker, ‘Affirmative Action Bake 

Sale’ Hits Sour Note with University of 
Texas Officials, Hous. Chron., Oct. 3,
2013..............................................................................19

Letter from Russlyn Ali, Asst. Sec’y for Civil 
Rights, U.S. Dep’t of Educ., to Rick 
Perry, Governor of Texas, Apr. 29, 2011, 
http://static.texastribune.org/media/docu 
ments/3061_001.pdf................................................... 6

Matt Levin, UT Austin Frats Now Could 
Face Sanctions for Racist Parties, Hous.
Chron., Apr. 16, 2015............................................... 18

Meghan Keneally, Other Sigma Alpha 
Epsilon Chapters Now Investigated for 
Rumored Racist Chants, ABC News,
Mar. 11, 2015.............................................     18

Patricia Gurin et al., Diversity and Higher 
Education: Theory and Impact on 
Educational Outcomes, 72 Harv. Educ.
Rev. 330 (2002).......................................... . 27, 29

Priority Plan to Strengthen Education at 
Prairie View A&M University and at 
Texas Southern University (2000), 
http://sacs.pvamu.edu/assets/library/OCR 
priority.pdf................................................................ 6

Ralph K.M. Haurwitz, UT Student Paper 
Issues Apology for Cartoon, Austin 
American-Statesman, Mar. 28, 2012.................... 19

http://static.texastribune.org/media/docu
http://sacs.pvamu.edu/assets/library/OCR


IX

Scott E. Page, The Difference: How the
Power of Diversity Creates Better Groups,
Firms, Schools, and Society (2007)....................... 23

Thomas J. Espenshade & Alexandria
Walton Radford, No Longer Separate, Not
Yet Equal: Race and Class in Elite
College Admission and Campus Life
(2009).......      15

Univ. of Tex. at Austin, Report of the Task 
Force on Racial Respect and Fairness 
(2004)..............................................................    13

University of Texas System Administration, 
Standards of Conduct Guide (2009), 
http ://www.utsystem.edu/
systemcompliance/SOCcombined.pdf.................  31

http://www.utsystem.edu/


INTEREST OF AM ICI CURIAE *
The NAACP Legal Defense & Educational Fund, 

Inc. (LDF) is a non-profit legal organization that has 
participated in the litigation of this case from the 
outset, including twice presenting oral argument in 
the court of appeals. JA 7a, 16a; Pet. App. 262a, 264a. 
For more than seven decades, LDF has worked to 
dismantle racial segregation and ensure equal 
educational opportunity for all students. LDF has 
represented African-American students and 
applicants, as parties and amici curiae, in 
groundbreaking cases that seek to expand
educational access and opportunity in higher 
education—both at UT, see, e.g., Sweatt v. Painter, 
339 U.S. 629 (1950); Hopwood v. Texas, 78 F.3d 932 
(5th Cir. 1996), and at other universities throughout 
the nation, see, e.g., Grutter v. 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 Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Sipuel 
v. Bd. of Regents of Univ. of Okla., 332 U.S. 631 
(1948); Missouri ex rel. Gaines v. Canada, 305 U.S. 
337 (1938); Adams v. Bell, 711 F.2d 161 (D.C. Cir. 
1983); Geier v. Bredesen, 453 F. Supp. 2d 1017 (M.D. 
Tenn. 2006). In addition, LDF’s sixth President and 
Director-Counsel, the late John Payton, served as 
counsel to the University of Michigan in Grutter and

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



2
Gratz and argued the latter case before this Court 
when he was in private practice prior to joining LDF.

LDF represents the Black Student Alliance (BSA) 
at the University of Texas at Austin (UT), as well as 
the Black Ex-Students of Texas, Inc. (BEST), many of 
whose members were undergraduates during the 
period at issue in this case. Founded in 1980, the 
BSA serves as the leadership voice for xAfrican- 
American students at UT. BSA members have a 
strong interest in preserving UT’s efforts to promote 
diversity through the inclusion of race as one of the 
many factors in UT’s holistic review process. 
Although BSA recognizes that the campus is more 
inclusive than in the past, many of its members still 
experience racial isolation in their classes, 
extracurricular activities, and other university 
settings because of the relatively few African- 
American students on campus.

BEST, which was founded in 1998, brings together 
UT alumni to assist in recruiting, retaining, and 
supporting African-American students at UT. BEST 
also aims to increase awareness of the issues facing 
African-American students, faculty, and staff at UT, 
and provides networking opportunities for its alumni 
members. Many BEST members were students at UT 
between 1997 and 2004, the period when UT did not 
consider race in its admissions policies, and 
experienced significant racial isolation. All too often 
they were the only African-American student, or one 
of a very few, in their classes. Professors and fellow 
students frequently looked to BEST members to give 
the “Black perspective” on particular issues. Some 
also experienced acute incidents of racial hostility, 
which undermined their sense of belonging within 
the campus community. Accordingly, BEST members 
seek to promote an educational environment at UT in



3
which African-American students no longer bear the 
crushing burden of tokenism and racial stereotype. 
LDF has represented BSA and BEST as amici curiae 
in this litigation since 2008 and 2012, respectively, 
and amici have a continued interest in protecting this 
Court’s precedents affirming the importance of 
diversity in education.

INTRODUCTION AND 
SUMMARY OF ARGUMENT

“The enduring hope is that race should not matter; 
the reality is that too often it does.” Parents Involved 
in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 
787 (2007) (Kennedy, J., concurring in part and 
concurring in the judgment). When, in 2012, this 
Court last heard this case, an increasingly popular 
misbelief that the United States was approaching, or 
had achieved, a colorblind society where race no 
longer had a meaningful impact on American life, had 
taken hold in this country. Since then, our nation 
has been confronted by a series of tragedies and 
upheavals that have put the stubborn persistence of 
racial bias, stereotype, and discrimination—as 
affirmed by the lived realities of many African- 
Americans—in stark relief.

As our nation grapples with its long history of 
racial subordination and the continuing 
manifestations of racial bias in contemporary 
institutions, this Court once again faces the question 
of whether UT, the flagship university of this 
country’s largest southern state, may—in its 
judgment—use race as one of several factors to 
achieve its overall goal of diversity.

The legal issues at stake have been substantially 
narrowed since the last time this case was before this 
Court, Fisher v. Univ. of Tex. at Austin, 133 S. Ct.



4
2411 (2013) (“Fisher F). In Fisher I, the Court 
reaffirmed the principle that a diverse student body 
yields numerous educational benefits and is a 
compelling governmental interest. Thus, the sole 
question on remand to the Fifth Circuit was whether 
UT’s use of race-conscious admissions is sufficiently 
narrowly tailored to further compelling governmental 
interests. As detailed in Respondents’ Brief and the 
Fifth Circuit’s decision, UT’s admissions plan 
squarely satisfies these constitutional requirements.

Amici curiae write separately to emphasize three 
important and determinative points. First, because 
Petitioner has acknowledged that she is not 
challenging Grutter and its progeny, she and her 
attorneys cannot use this case as a vehicle to 
fundamentally undermine this Court’s longstanding 
precedents affirming the value of diversity in higher 
education. Furthermore, Petitioner faces significant, 
unresolved questions about her Article III standing. 
Under these circumstances, any effort by Petitioner 
to reexamine, recalibrate, or recast these precedents 
is particularly inappropriate given her highly- 
questionable Article III standing.

Second, UT’s present hybrid system of admissions 
is fully compliant with the letter and spirit of this 
Court’s precedents. From 1997 to 2004, UT utilized a 
state law guaranteeing admission to all Texas 
residents ranked at the top of their high school 
graduating class as part of a “race-neutral” 
admissions system. See Tex. Educ. Code Ann. 
§ 51.803 (West 1997) (amended 2015) (hereinafter the 
“Top Ten Percent Plan”). The shortfalls of this race- 
neutral experiment demonstrate why this Court 
should defer to UT’s judgment that some measure of 
race-consciousness is necessary for it to attain a 
critical mass of students of color and to maintain



5
flexibility in defining the dimensions of the diversity 
that furthers its educational mission. Moreover, 
individual applicants’ expression of race in the 
application process through personal essays affords 
due respect to their experiences, aspirations, and 
identity, as defined by the individual applicants 
themselves, that contribute to the diversity of the 
student body.

Third, Petitioner, having failed to secure relief, now 
seeks to reverse course and challenge settled 
questions about the meaning and merits of diversity. 
Amici are therefore compelled to reassert what the 
Court has long agreed is a compelling state interest: 
the myriad and essential benefits of a diverse student 
body for all students. The admission of a critical mass 
of diverse underrepresented students is crucial to 
combating bias, dispelling stereotypes, and enhancing 
mutual respect. Moreover, graduating a diverse class 
of students propagates the integration and 
inclusiveness of the broader community and fosters 
pathways to leadership in public life and other 
sectors of society for diverse individuals.

ARGUMENT
I. PETITIONER’S CASE OFFERS NO BASIS 

TO CHALLENGE THIS COURT’S 
PRECEDENTS AFFIRMING DIVERSITY 
IN HIGHER EDUCATION AS A 
COMPELLING GOVERNMENTAL
INTEREST.

Petitioner’s case does not—and should not—provide 
any basis for reexamining this Court’s longstanding 
and clearly established precedents recognizing the 
numerous educational benefits of diversity in higher 
education as a compelling governmental interest. In 
Fisher I, this Court reaffirmed the principle that



6
universities have a compelling interest in pursuing 
“the educational benefits that flow from a diverse 
student body.” 133 S. Ct. at 2417. The Court rightly 
embraced “as given” its prior precedent on this point. 
Id. (citing to Grutter, 539 U.S. 306; Gratz, 539 U.S. 
244; and Bakke, 438 U.S. 265).

Importantly, this Court’s recognition of the 
educational benefits of diversity arose from a 
particular historical context in which UT played a 
distinctly significant and unfortunate role—namely, 
the de jure segregation of UT that affirmative action 
policies were originally created to remedy. The racial 
integration of UT Austin occurred slowly, even after 
this Court, in 1950, forced its law school to admit 
African-American students. See Sweatt, 339 U.S. 629. 
In the 1970s, the federal government undertook a 
court-ordered investigation of Texas’s higher 
education system and found that the state had failed 
to eliminate vestiges of its formerly segregated 
system. See Hopwood v. Texas, 861 F. Supp. 551, 554 
(W.D. Tex. 1994) (chronicling this investigation and 
Texas’s subsequent efforts to come into compliance), 
rev’d on other grounds, 78 F.3d 932 (5th Cir. 1996). In 
2000, Texas and the federal government entered into 
an ongoing agreement designed to address the 
persistence of racial segregation in Texas’s higher 
education system.2 Thus, “ [discrimination against 
blacks in the state system of higher education is well

2 See Priority Plan to Strengthen Education at Prairie View 
A&M University and at Texas Southern University (2000), 
http:// sacs .pvamu.edu/assets/library/O CRpriority .pdf; Letter
from Russlyn Ali, Asst. Secy for Civil Rights, U.S. Dep’t of 
Educ., to Rick Perry, Governor of Texas, Apr. 29, 2011, 
http://static.texastribune.org/media/documents/3061_001.pdf.
See generally Dwonna Goldstone, Integrating the 40 Acres: The 
Fifty-Year Struggle for Racial Equality at the University of 
Texas (2006) (charting Texas’s halting progress).

http://static.texastribune.org/media/documents/3061_001.pdf


7
documented in history books, case law, and the 
State’s legislative history.” Hopwood, 861 F. Supp. at 
554. And UT has admitted that it is “painfully aware” 
that, notwithstanding these efforts, in the six decades 
following this Court’s decision in Sweatt, “vestiges of 
de jure segregation” persist. Resp. Br. 4 (citing SJA 
14a and Sweatt, 339 U.S. 629).3

In light of this history, this Court has repeatedly 
reaffirmed the validity of the government’s 
compelling interest in student diversity for good 
reason: “ [NJothing less than the ‘nation’s future 
depends upon leaders trained through wide exposure 
to the ideas and mores of students as diverse as this 
Nation of many peoples.’” Grutter, 539 U.S. at 324 
(quoting Bakke, 438 U.S. at 313).

States and universities across the nation have also 
repeatedly acknowledged that critical educational 
benefits flow from diverse campuses and classrooms. 
See generally Amicus Br. of Massachusetts et ah; 
Amicus Br. of Leading Public Research Universities. 
These benefits are as pertinent today as they were 
when Justice Powell cast the deciding vote in Bakke 
more than three decades ago, when this Court 
decided Grutter twelve years ago, and when it 
reaffirmed Grutter’s key principles in Fisher I  two 
years ago.

3 Given this extensive history, the race-conscious component 
of UT’s admissions process also constitutes a constitutionally 
justifiable remedial measure for past and present 
discrimination. See Fordice, 505 U.S. at 729 (“If policies 
traceable to the de jure system are still in force and have 
discriminatory effects, those policies too must be reformed”); 
Veasey v. Abbott, 796 F.3d 487, 510 (5th Cir. 2015) (“Texas’s 
maintenance of a ‘separate but equal’ education system . . . 
contributed to the unequal [educational] outcomes that 
presently exist”).



8
Petitioner has previously acknowledged and now 

assumes arguendo, Pet. Br. 22, that “the interest in 
the educational benefits that flow from a diverse 
student body” is a constitutionally permissible 
government compelling interest for a university, 
Fisher 1, 133 S. Ct. at 2413 (quoting Bakke, 438 U.S. 
at 299 (opinion of Powell, J.)). Indeed, Petitioner has 
expressly and “very carefully [said that she was] not 
trying to change the Court’s disposition of the issue in 
Grutter” or the “legitimacy of the interest” in 
diversity, Fisher I, Tr. of Oral Arg. at 8. 
Notwithstanding these clear and unequivocal 
concessions in Fisher I, and in light of the failure of 
her challenge, Petitioner now attempts to relitigate 
Grutter, relitigate Fisher I, and challenge the 
contours and core of the government’s compelling 
interest in racial diversity. Pet. Br. 3, 20, 21, 26, 29, 
30, 33. But Fisher should not be given a second bite 
at the apple — let alone a third or more.

Indeed, Petitioner’s attempts to excavate and re­
examine settled law are particularly inappropriate 
given the fundamental questions about her standing 
that remain unresolved. Fisher’s claims, even if they 
were properly before this Court, are not redressable. 
See generally Resp. Br. Because Petitioner did not 
litigate her case on behalf of a class and she 
graduated from another university in 2012, her 
forward-looking demands for an injunction and 
declaratory judgment have fallen away. Cf. DeFunis 
v. Odegaard, 416 U.S. 312, 319 (1974) (per curiam). 
Thus, the only relief Petitioner now seeks is 
“monetary damages in the form of refund of 
application fees.” JA 89a. However, Fisher has no 
standing to pursue this relief because UT’s allegedly 
unconstitutional conduct did not cause her to pay the 
application fee in the first place. Nor would a refund



9
redress her alleged injury resulting from the 
University’s purported failure to treat her application 
fairly. See Steel Co. u. Citizens for a Better Env’t, 523 
U.S. 83, 107 (1998) (“Relief that does not remedy the 
injury suffered cannot bootstrap a plaintiff into 
federal court; that is the very essence of the 
redressability requirement.”). Indeed, Fisher 
conceded in her complaint that, insofar as she was 
unconstitutionally “deprived of the opportunity to 
attend the UT Austin,” that is “an injury that cannot 
be redressed by money damages.” JA 119a.4

These standing challenges have been repeatedly 
presented, preserved,5 and examined by parties, 
scholars, and commentators.6 Were this Court to

4 Fisher’s complaint also requested attorney’s fees and costs, 
but that demand cannot on its own establish an Article III case 
or controversy. See Lewis v. Cont’l Bank Corp., 494 U.S. 472, 
480 (1990). Moreover, since Petitioner would not have been 
admitted to UT, even with a different admissions policy or a 
“perfect” score on certain achievement indices, Petitioner has 
not suffered any cognizable injury. JA 465a-66a; see also Fisher 
v. Univ. of Tex. at Austin, 758 F.3d 633, 639 & n.17 (5th Cir. 
2014) (no Fall 2008 applicants were admitted with Fisher’s 
achievement index score). This fact is fatal to Fisher’s claim 
under Texas v. Lesage, 528 U.S. 18, 21 (1999) (per curiam).

5 See Br. of Defs.-Appellees at 24, 29-32, Fisher, 631 F.3d 213 
(No. 09-50822), 2010 WL 2624785, at *24, *29-32; Resp. Br. in 
Opp’n at 6-20, Fisher I, 133 S. Ct. 2411 (No. 11-345), 2011 WL 
6146835, at *6-20; Br. for Resp. at 16 n.6, Fisher I, 133 S. Ct. 
2411 (No. 11-345), 2012 WL 3245488, at *55; Supp. Br. for Defs.- 
Appellees at 6-19, Fisher, 758 F.3d 633 (No. 09-50822), 2013 WL 
5885633, at *6-19. See also Tr. of Oral Arg. at 3:22-8:5, 54:23- 
57:17, 73:11-75:19, Fisher I, 133 S. Ct. 2411 (No. 11-345). Even 
had these standing arguments not been preserved, they can, of 
course, be raised at any time. See, e.g., FW/PBS, Inc. u. Dallas, 
493 U.S. 215, 230-31 (1990).

6 See, e.g., Elise C. Boddie, The Sins of Innocence in Standing 
Doctrine, 68 Vand. L. Rev. 297 (2015); Adam D. Chandler, How



10
ignore these grave justiciability infirmities, it would 
raise serious questions about whether the doctrine of 
standing is applied evenhandedly to all litigation that 
involves questions of racial bias. Leaving Fisher’s 
standing deficiencies unaddressed suggests that 
these requirements need not be thoroughly satisfied 
when plaintiffs claim that their rights have been 
violated for the alleged benefit of racial minorities. 
Turning a blind eye to these important jurisdictional 
questions defies principles of judicial restraint and 
raises serious questions about the fair and consistent 
application of the standing doctrine by this Court.7
II. CONSIDERATION OF RACE IN UT’S 

HOLISTIC ADMISSIONS PROCESS IS 
NARROW LY TAILORED TO ACHIEVE A 
DIVERSE STUDENT BODY.

The only question properly before this Court is 
whether UT’s admissions policy is narrowly tailored. 
This inquiry assesses the means used by UT to 
achieve the benefits of diversity in education.

History and practice amply demonstrate that UT 
justifiably determined that it needed to increase 
diversity beyond that which it had achieved between 
1997 and 2004, under an ostensibly “race-neutral” 
system. Today, UT’s hybrid system of admissions 
remains fully compliant with the letter and spirit of 
this Court’s precedents.

(Not) To Bring An Affirmative-Action Challenge, 122 Yale L.J. 
Online 85 (2012).

7 Cf. Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013) (“[I]t 
is not enough that the party invoking the power of the court 
have a keen interest in the issue.”).



11
A. H istory am ply dem onstrates that race ­

conscious h olistic review  is a 
necessary supplem ent to  the Top Ten 
P ercent Plan to achieve a broadly 
diverse student body.

Fisher I  reiterated that narrow tailoring requires 
“careful judicial inquiry” and assigns to universities 
the “ultimate burden” of demonstrating the 
inadequacy of race-neutral alternatives. 133 S. Ct. at 
2420. When admonishing that “ [sjtrict scrutiny must 
not be strict in theory, but fatal in fact,” this Court 
recognized that there is some latitude as to how a 
university can make its required showing. 
Id. at 2421.

UT could have addressed the insufficiency of its 
race-neutral alternatives to achieving the benefits of 
diversity in any number of ways. Here, UT analyzed 
the data and results from its actual implementation 
of a race-neutral process, carefully determined that 
those measures remained inadequate, and developed 
an admissions policy that gave it the flexibility to 
address those inadequacies. This Court should give 
UT due latitude in constructing its admissions policy 
after having tried so assiduously to use race-neutral 
alternatives. UT should not be penalized with the 
imposition of an impossibly exacting standard that is 
effectively “fatal in fact.”

UT extensively experimented with race-neutral 
measures from 1997 to 2004, when a ban on race­
conscious admissions was in place as a result of the 
Fifth Circuit’s decision in Hopwood, 78 F.3d 932. As 
part of this effort, UT expanded outreach and 
scholarships, took full advantage of the state law 
establishing the Top Ten Percent Plan, and instituted 
individualized review for applicants not admitted 
through that plan. See Fisher v. Univ. of Tex. at



12
Austin, 645 F. Supp. 2d 587, 591 (W.D. Tex. 2009), 
aff’d, 631 F.3d 213 (5th Cir. 2011). That 
individualized review included the socio-economic 
status of applicants’ families, extracurricular 
activities, community service, leadership qualities, 
and multiple other factors—but it did not consider 
race. See JA 97a-105a.

The race-neutral admissions process failed to 
achieve UT’s desired level of campus diversity to 
serve its educational goals. In assessing whether it 
was providing the necessary exposure to different 
viewpoints to achieve the educational benefits of 
student diversity, UT appropriately considered the 
very low number of African-American students who 
matriculated between 1997 and 2004. In that seven- 
year time period following Hopwood,8 an average of 
7,000 first-year students enrolled at UT each year, 
and no more than 309 of those enrolled students per 
year were African Americans. JA 177a. In addition, 
the percentage of African-American students 
admitted through the Top Ten Percent Plan dropped 
and then stagnated at 3-4%. Fisher, 758 F.3d at 649. 
At no point between 1997 and 2004 did African- 
Americans constitute more than 5% of any first-year 
class. Id.

Further, the low enrollment numbers of African- 
American students exacerbated the substantial racial 
isolation experienced by the students of color who 
attended UT in the post-Hopwood, pr e-Grutter

8 “The first freshman class after Hopwood—the percentage of 
African-American admitted students fell from 4.37% to 3.41%, 
representing a drop from 501 to 419 students even as the total 
number of admitted students increased by 833 students. 
Similarly, the percentage of Hispanic admitted students fell 
from 15.37% to 12.95%.” Fisher, 758 F.3d at 649.



13
period. During this period of low-minority enrollment 
incidents of racial hostility on campus sparked 
student protests and prompted UT to convene a Task 
Force on Racial Respect and Fairness in March 2003. 
The Task Force’s January 2004 report was produced 
while the University’s post-Grutter review of its 
admissions policies was still pending. See Univ. of 
Tex. at Austin, Report of the Task Force on Racial 
Respect and Fairness, at 3 (2004). This review of 
racial hostility and racial isolation informed UT’s 
conclusion that the race neutral admissions process 
failed to ensure that UT’s students received the 
educational benefits of diversity.

Because the facially race-neutral measures failed to 
achieve sufficient diversity, UT adopted the hybrid 
process now at issue, which combines the race- 
neutral Top Ten Percent Plan (whereby over 75% of 
UT students are admitted each year—80% during the 
relevant time period here) and the race-conscious 
holistic review process (under which the remainder of 
the class is admitted). Such limited consideration of 
enrollment levels is acceptable in a university’s 
critical mass9 inquiry. As this Court has explained, 
‘“some 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 Powell, J.)) 
(alteration in original).

Petitioner’s contention “that UT effectively 
achieved critical mass no later than 2003, the last

9 A “critical mass is defined by reference to the educational 
benefits that diversity is designed to produce.” Grutter, 539 U.S. 
at 330. There can be no quota, target, or predetermined 
percentage of student enrollment that automatically produces 
these benefits. Id. at 329-30, 334.



14
year it employed its race neutral admissions plan,” 
Pet. Br. 46, is belied by the undisputed record: 
“When the holistic review program was modified to be 
race-conscious, 90% of classes had one or zero 
African-American students, 46% had one or zero 
Asian-American students, and 43% had one or zero 
Hispanic students.” Fisher, 758 F. 3d at 658. And, 
despite Petitioner’s claims to the contrary, cf. Pet. Br. 
46, the adoption of race-conscious holistic review 
significantly increased the enrollment of African- 
American and other underrepresented minority 
students at UT, thus becoming an essential 
supplement to the Top Ten Percent Plan and other 
race-neutral efforts.10

For example, in the incoming freshman class for the 
2008-2009 year (the class to which Fisher applied), 
total African-American enrollment increased by 
21.4%, as compared to the incoming freshman class 
for the 2004-2005 school year (the last class admitted 
exclusively through race-neutral admissions). 
Moreover, in the first four entering classes after UT’s 
2004 decision to use race-conscious admissions, 435

10 Even if Petitioner were correct that UT’s race-conscious 
admissions policy is unnecessary to achieve a critical mass of 
students of color, the policy would still pass constitutional 
muster. Cf. Pet. Br. 45-46. Although Parents Involved 
questioned the necessity of a K-12 student assignment plan that 
had minimal statistical impact, the plan in that case had rigid, 
binary racial classifications that could be “determinative 
standing alone.” 551 U.S. at 723; Pet. App. 310a-311a. Thus, 
Parents Involved distinguished that rigid type of student 
assignment plan from the individualized review, at issue 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.’” 551 U.S. at 723 (quoting Grutter, 539 
U.S. at 330); see also id. at 793 (Kennedy, J., concurring in part 
and concurring in the judgment).



15
out of the total of 1,544 African-American students— 
a full 28%—were admitted through the holistic 
admissions program. See SJA 156a-157a. While the 
race-conscious component of the admission program 
is “modest” in its approach, Grutter, 539 U.S. at 393 
(Kennedy, J., dissenting), its impact is substantial in 
achieving its diversity goals.

UT “does not suggest that the end point . . .  is a 
specific measure of diversity in every class,” Fisher, 
758 F. 3d at 658, but research confirms that increases 
in the enrollment of African-American students, even 
on a small scale, have a multiplier effect. A study of 
selective universities found that even “a one 
percentage 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 interacting with students of different racial 
backgrounds.” Thomas J. Espenshade & Alexandria 
Walton Radford, No Longer Separate, Not Yet Equal: 
Race and Class in Elite College Admission and 
Campus Life 199 (2009).

Overall, this history of experimentation, revision, 
and improvement demonstrates how UT extensively 
explored race-neutral alternatives, rigorously 
determined they were inadequate alone, and carefully 
crafted narrow race-conscious supplementary 
measures. Moreover, the comparatively slim and 
individualized consideration of race here—as just 
one factor among many—should itself inform this 
Court’s narrow tailoring analysis, because it speaks 
directly to the specificity with which UT has 
formulated a remedy and sought to fulfill its goals. 
Together, these circumstances more than suffice to 
satisfy the strictures of narrow tailoring.



16
B, O verhauling UT’s p o licy  w ould distort 

established precedent and im pair UT’s 
ability to carry  out its educational 
m ission.

Petitioner seeks drastic changes to UT’s admissions 
system that would upend this Court’s longstanding 
precedents and UT’s commendable efforts to achieve 
diversity in several detrimental ways.

First, Petitioner astoundingly criticizes UT for not 
choosing a “specific or approximate level of minority 
admissions,” Pet. Br. 8. This argument
fundamentally misconceives of critical mass and 
comes perilously close to contravening this Court’s 
prohibition on racial quotas. See supra n.9. Indeed, it 
would create a constitutional Catch-22 to require UT 
to undertake a highly individualized admissions 
process and then fault it for not specifying categorical 
racial targets or goals.

Second, Petitioner’s race-blind alternative, Pet. Br. 
26-30, would cap enrollment of underrepresented 
minority students at the level achieved prior to 
Grutter. That is impractical and problematic for 
many of the reasons UT cataloged in recent years. 
See supra Section II.A. Moreover, this unduly rigid 
understanding of critical mass is inconsistent with 
this Court’s pronouncements and would severely 
impair UT’s ability to advance “vital component[s] of 
its educational mission,” Grutter, 539 U.S. at 340.

Third, Petitioner would elevate the numerical 
presence of minorities over the substantive value of 
viewpoint diversity. Currently, UT’s educational goal 
of attaining a broadly diverse student body depends 
on the understanding that minority students cannot 
and should not be required to express some 
stereotypical minority viewpoint on any issue.



17
Individualized race-conscious review helps to 
overcome the stereotypes that all students of any 
given race think alike. As explained in Section III.B, 
infra, the presence of different types of students of 
various races, with unique perspectives and 
viewpoints, is the hallmark of UTs push for broader 
diversity. Petitioner’s emphasis on the value of “race- 
neutral” processes impermissibly assumes that 
minority students always embody a certain 
perspective that will be attained by simply enrolling 
a certain number of racially diverse students. This 
ignores the value of the diversity of viewpoints, and 
experiences within racial groups, and thereby distorts 
this Court’s holdings from Bakke onwards.

Fourth, Petitioner’s desire to overhaul UT’s 
admissions policy is ill-suited for other colleges and 
contexts. This Court previously recognized that a 
percentage plan may “not [be] a workable alternative 
. . .  'in a constitutionally significant sense’” since such 
plans “may preclude the university from conducting 
the individualized assessments necessary to assemble 
a student body that is not just racially diverse, but 
diverse along all the qualities valued by the 
university.” Fisher v. Univ. of Tex. at Austin, 
631 F.3d 213, 239 (5th Cir. 2011) (quoting Grutter, 
539 U.S. at 340); UT Supp. Br. 31-34 (Fifth Circuit, 
Oct. 25, 2013). Other schools have similarly found 
Top Ten Percent style-plans are not workable 
alternatives to race-conscious holistic review 
processes. See generally Amicus Br. of Dean Robert 
Post and Dean Martha Minow. If Petitioner’s drastic 
remedy were applied nationally, there would be a 
significant drop in minority enrollment, with 
predictably grim consequences for achieving the 
educational benefits of diversity and for diversity 
within professional trajectories and leadership



18
development. See infra Section III.C; see e.g., Jessica 
S. Howell, Assessing the Impact of Eliminating 
Affirmative Action in Higher Education, 28 J. Labor 
Econ. 113, 116 (2010) (finding that African-American 
and Latino enrollment at selective universities would 
decline 10.2% if race-neutral admissions were 
mandated nationwide).

Finally, we note that Petitioner’s proposal would 
eliminate the gains that UT has already made, when, 
in reality, notwithstanding promising increases in 
African-American enrollment, UT is still working to 
achieve a critical mass. The representation of 
minority students is still at de minimis levels in too 
many settings on campus. For example, African- 
American male students still account for a mere 1.8% 
of UT student enrollment. See Jasmine Johnson, For 
Black Male Students at UT-Austin, Data Tells 
Different Story about Diversity, Daily Texan, Nov. 25, 
2013. Perhaps not surprisingly, current African- 
American students who are members of amici curiae 
BSA and BEST have reported that they frequently 
feel singled out and misunderstood. Some students 
have had to grapple with others on campus assuming 
that they sell drugs. Others have often felt as though 
they were the only Black male student in a given 
major. While UT may have taken strides to create a 
more welcoming and inclusive campus climate, amici 
curiae experience continuing racial hostility11 and a 
sense of racial isolation in the classroom.

11 See, e.g., Matt Levin, UT Austin Fi'ats Now Could Face 
Sanctions for Racist Parties, Hous. Chron., Apr. 16, 2015 
(reporting on fraternity party where guests wore stereotypical 
Mexican clothing); Meghan Keneally, Other Sigma Alpha 
Epsilon Chapters Now Investigated for Rumored Racist Chants, 
ABC News, Mar. 11, 2015 (describing UT’s investigation into 
fraternity’s exclusion of African-Americans and racist chant);



19
In the face of these challenges, amici curiae BSA 

and BEST and other members of UT’s African- 
American community—like prior generations of 
African-Americans and others that fought to 
integrate UT—have remained committed to
improving the UT community by creating a more 
inclusive campus environment. For example, 
students successfully petitioned for the removal of 
Confederate statues from prominent places on 
campus. David Ng, Jefferson Davis statue deemed 
racist to be relocated at UT Austin, L.A. Times, Aug. 
13, 2015. One student recently founded an online 
newspaper aimed at increasing the visibility of 
African-American students on campus. Bobby 
Blanchard, New UT Publication Brings Different 
Perspectives to 40 Acres, Daily Texan, May 2, 2012.

Thus, contrary to Petitioner’s claim that critical 
mass had been or can be achieved through the Top 
Ten Percent Plan, amici curiae firmly believe that— 
consistent with Grutter—UT can and must do more,

Kolten Parker, ‘Affirmative Action Bake Sale’ Hits Sour Note 
with University of Texas Officials, Hous. Chron., Oct. 3, 2013 
(recounting “affirmative action bake sale” that UT officials 
characterized as “inflammatory and demeaning” and “creating] 
an environment of exclusion and disrespect”); Alberto Long, 
Bleach or No Bleach, Balloon Attacks in West Campus Cause 
Controversy, Daily Texan, Sept. 14, 2013 (detailing reports that 
African-American students were targeted by balloons, allegedly 
filled with bleach, thrown from student apartments); Ahsika 
Sanders, Racial Conflicts Tarnish History of Roundup, Daily 
Texan, Apr. 13, 2012 (tracing history of racial tensions at UT 
fraternities); Ralph K.M. Haurwitz, UT Student Paper Issues 
Apology for Cartoon, Austin American-Statesman, Mar. 28, 2012 
(noting apology for racialized editorial cartoon about fatal 
shooting of Trayvon Martin); Andrew Freidenthal, Shameful 
Graffiti Paints Larger Picture, Daily Texan, Sept. 22, 2008 
(reporting on depiction of President Obama as lynched and 
hanging from a tree).



20
not less, to ensure that all students fully attain the 
educational benefits of diversity.

C. A  student’s self-reported  racia l 
identity is an act o f  im portant self- 
defin ition  that must be perm itted, 
respected , and considered.

Under UT’s hybrid policy, one race-conscious 
component of the admissions process is the personal 
statement or open-ended application essay, JA 467a, 
in which students share the most important and 
individual aspects of themselves, such as their 
aspirations, formative experiences, or adversities 
they might have overcome. This is a near-universal 
requirement of college applications throughout the 
nation, see, e.g., The Common Application, Writing 
Requirements for the Common App, 
https://www.commonapp.org/whats-appening/ 
application-updates/writing-requirements-common- 
app. While the focus in this case has been on the 
consideration of race in a “checkbox,” any 
determination by this Court that race cannot be a 
component of UT’s admissions procedures could 
potentially have the disastrous effect of limiting or 
prohibiting discussions of personal racial identity in 
the essay portion of the application, and in other 
parts of the application process.

Rejecting or otherwise negatively evaluating 
applicants merely because they touch upon, reveal, or 
discuss personal racial identity in the admissions 
process demeans the respect and individualized 
treatment that every prospective student is owed. 
Yet, Petitioner seeks exactly that: admissions policies 
that consider every aspect of students’ experience, 
background, and identity, except for their race. Taken 
to its logical conclusion, Petitioner’s proposed race- 
blind holistic review process would require

https://www.commonapp.org/whats-appening/


21
admissions officials to scrub all references to personal 
racial identity from students’ application files, 
including their essays, thereby resulting in “a form of 
viewpoint discrimination.” 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); see also Devon W. Carbado and Cheryl 
I. Harris, The New Racial Preferences, 96 Cal. L. Rev. 
1139, 1152 (2008) (“[T]he personal statement
generally calls upon applicants to provide some 
personal narrative in which they state something 
unique about themselves.”).

For many students, the stories they share in their 
personal essays touch upon experiences directly 
connected to their own racial identity: e.g., an 
African-American male in Ferguson who is more 
likely to be stopped by the police than his white 
counterpart or an Asian-American student who 
volunteers at an anti-human trafficking organization. 
Others share stories of adversity or accomplishment 
that touch upon subjects other than racial identity: 
e.g., serving in the military or being gay or lesbian. 
Both types of stories are relevant and important:

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. Universities must be able to 
consider and weigh the totality of an applicant’s life 
experiences, including their race, in addition to 
numerical scores and high school rank.

Singling out race for exclusion contradicts Grutter s 
requirement that a university’s individualized review



22
be “flexible enough to consider all pertinent elements 
of diversity[,]” 539 U.S. at 337 (quoting Bakke, 438 
U.S. at 318) (opinion of Powell, J.)), and forces 
universities like UT “to become . . . much different 
institution[s] and sacrifice . . . vital components] of 
[their] educational mission.” Id. at 340. Moreover, 
constricting applicants’ reference to their race sends a 
message to minority students that a critical element 
of their identity is irrelevant or worse, unwelcome. It 
also suggests that access to and opportunity in public 
colleges must come at the expense of full personhood 
and individual dignity.

Such a result is neither constitutionally compelled 
nor pedagogically advisable, particularly in a country, 
region, state, and campus where race is often a 
salient factor in students’ experiences. See Texas 
Dept, of Hous. and Cmty. Affairs v. Inclusive Cmty. 
Project, Inc., 135 S. Ct. 2507, 2525 (2015) (“Much 
progress remains to be made in our Nation’s 
continuing struggle against racial isolation.”). 
Instead, this Court should recognize the importance 
of allowing universities to permit their applicants to 
share individual experiences and to afford those 
experiences the respect they deserve, regardless of 
whether or not they pertain to race.
III. UNIVERSITIES CHARGED WITH 

PREPARING OUR NATION’ S LEADERS 
HAVE A COMPELLING INTEREST IN 
ENSURING THAT ALL STUDENTS 
RECEIVE THE BENEFITS OF 
DIVERSITY

Because Petitioner seeks to relitigate the settled 
question of the educational benefits of diversity, 
amici now reassert and reemphasize the compelling 
interest in diversity that has been clearly-recognized 
by universities and by the Court. The benefits of



23
student-body diversity take several forms and span 
the duration of a student’s college and life 
experiences: from the application process, to the 
campus and its classrooms, and after graduation in 
the broader community and public and private 
sectors. A critical mass of underrepresented 
minorities in higher education is essential to 
countering the pernicious racial stereotypes that 
undermine the dignity of the individual, and a 
broadly diverse student body provides all students 
with academic benefits.

A. A critical mass of underrepresented 
minorities substantially benefits all 
students.

Racial diversity in higher education enhances 
essential educational functions in multiple ways. The 
“substantial” benefits that flow from such diversity 
include enhanced “cross-racial understanding, . . . 
breaking] down racial stereotypes,” and enabling 
students “to better understand persons of different 
races.”12 Grutter, 539 U.S. at 330, 332 (internal 
quotation marks omitted); SJA la-3a, 16a-17a.

The full realization of the educational benefits of 
diversity, however, depends on an important 
predicate: “meaningful representation,” or, to use
Grutter’s shorthand, “a critical mass,” of 
underrepresented minority students. 539 U.S. at 329- 
30. A critical mass of students of color is necessary 
because, “ [b]y virtue of our Nation’s struggle with

12 Diversity also helps foster improved cognitive skills and 
civic engagement, and diverse teams produce better and more 
creative results. 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).



24
racial inequality, such students are both likely to 
have experiences of particular importance to [a 
university’s] mission, and less likely to be admitted in 
meaningful numbers [based] on criteria that ignore 
those experiences.” Id. at 338.

First, critical mass is essential to “diminishing the 
force of [racial] stereotypes” on campus and in the 
classroom. Id. at 333.13 This Court has long 
recognized that pernicious stereotypes based on 
immutable characteristics undermine the essential 
dignity of the individual. Cleveland Bd. of Educ. v. 
LaFleur, 414 U.S. 632, 644-45 (1974). Racial 
integration, and the statutory tools designed to 
further it, can and does “counteract unconscious 
prejudices and disguised animus,” Inclusive Cmty., 
135 S. Ct. at 2511-12.14

13 Petitioner’s dismissal of UT’s assessment of classroom 
diversity, Pet. Br. 44-45, overlooks the pervasive racial isolation 
faced by African-American students across the campus, 
regardless of class size. See, e.g., Fisher, 758 F. 3d at 658 (“90% 
of classes had one or zero African-American students”); Resp. 
Br. 7-8. cf. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 
342 n.23 (1977) (recognizing that an “inexorable zero” can be 
probative evidence of racial inequity) (internal quotation marks 
and citation omitted). The record in Grutter included similar 
evidence of racial isolation at the classroom level. See Resp. Br., 
Grutter v. Bollinger, 539 U.S. 306 (No. 02-241), 2003 WL 
402236, at *6 n.7.

14 A critical mass also encourages an atmosphere of 
“speculation, experiment and creation [that is] so essential to 
the quality of higher education,” Bakke, 438 U.S. at 312 (opinion 
of Powell, J.) (internal quotation marks and citation omitted), in 
classrooms as well as in extracurricular activities, which 
“facilitate interactions between students, enabling them to 
explore new points of view, to develop interests and talents, and 
to nurture a growing sense of self,” Christian Legal Soc’y v. 
Martinez, 130 S. Ct. 2971, 2999 (2010) (Kennedy, J., concurring).



25
Second, attaining a critical mass of minority 

students at a given university is necessary to counter 
the underlying patterns of residential segregation 
that limit racial integration at the K-12 level. This 
Court recently recognized that the “vestiges [of de 
jure residential segregation] remain today, 
intertwined with the country’s economic and social 
life.” Id. at 2515. “Due to a variety of factors—some 
influenced 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). Absent critical mass, these national 
patterns of residential segregation, and their impact 
on K-12 education, facilitate racial stereotyping. 
Specifically, students are likely to come to college 
from schools where they were “surrounded only by 
the likes of themselves,” and, therefore, have 
perspectives that are limited by these formative 
experiences. Bakke, 438 U.S. at 312 n.48 (opinion of 
Powell, J.) (citation omitted). These facts are plainly 
relevant here because, as UT acknowledges, the 
“vestiges of de jure segregation” persist and “the 
Texas school system remains largely segregated,” 
Resp. Br. 4, 7.

Third, a critical mass ensures that
underrepresented minority students are not unfairly 
regarded as “spokespersons for their race.” Grutter, 
539 U.S. at 319-20. Meaningful representation of 
underrepresented minorities ensures that 
“nonminority students learn there is no minority 
viewpoint but rather a variety of viewpoints among 
minority students.” Id. (internal quotation marks and 
citation omitted). Critical mass also reduces the 
likelihood that minority students will feel isolated or 
limited by what may be perceived as their token



26
status. And in such circumstances, “nonminority 
students learn there is no minority viewpoint but 
rather a variety of viewpoints among minority 
students.” Id.

Finally, although this fact is frequently overlooked, 
courts have long recognized that all students, 
regardless of their race, benefit from the presence of a 
critical mass of underrepresented students. See, e.g., 
Fisher, 768 F. 3d at 660 (recognizing this effect at 
UT). As far back as the Brown v. Board of Education 
case, LDF presented evidence demonstrating that 
segregation hurts not just racial minorities but also 
majority groups. See The Effect of Segregation and 
the Consequences of Desegregation: A Social Science 
Statement, reprinted in 37 Minn. L. Rev. 427 (1953) 
(appendix to appellants’ briefs) (hereinafter, “Social 
Scientists Statement”).15 See also Wright v. 
Rockefeller, 376 U.S. 52, 69 (1964) (Goldberg, J„ 
dissenting) (“ [T]he Court’s decisions since Brown v. 
Board . . . hold that harm to the Nation as a whole 
and to whites and Negroes alike inheres in 
segregation.”). When students encounter classmates 
from different backgrounds—within and across 
dimensions of race, socio-economic status, and 
beyond— and come to understand and respect each 
other as individuals, they are all better for it.16 While

15 See generally Social Scientists Statement (describing 
negative effects of segregation on children of majority group, 
including guilt, rationalization, unrealistic fears and hatreds, 
confusion, moral cynicism, and disrespect for authority); id. 
(explaining that segregation leads to blockages in the 
communications between majority and minority groups that 
tend to increase suspicion, distrust, and hostility).

16 “Research shows that individuals become more aware of 
within-group variability when the minority group is not too 
small relative to the majority group, and that individuals have



27
Fisher views diversity as a zero-sum game, the truth 
remains that when our campuses and our country 
become more inclusive and integrated, 
everyone benefits.

B. A critical mass of broadly diverse 
underrepresented minorities is an 
essential component of the 
constitutionally permissible interest of 
student body diversity.

Petitioner asserts that “intra-racial diversity” is an 
improperly-raised, “post-hoc” justification for race­
conscious admissions by UT that has no basis in this 
Court’s precedent. See Pet. Br. at 30-35. This 
contention is wrong for several reasons.

First, while the precise phrasing has changed, the 
concept of “diversity within diversity”—or intra-racial 
diversity—is firmly rooted in this Court’s precedents 
upholding narrowly-tailored race-conscious 
admissions policies. See Bakke, 438 U.S. at 315 (“The 
diversity that furthers a compelling state interest 
encompasses a far broader array of qualifications and 
characteristics of which racial or ethnic origin is but a 
single though important element.”). This Court has 
long recognized that institutions of higher education

more complex views of members of other groups when relative 
group size is not greatly imbalanced.” Patricia Gurin et al., 
Diversity and Higher Education: Theory and Impact on 
Educational Outcomes, 72 Harv. Educ. Rev. 330, 360-61 (2002) 
See also Parents Involved, 551 U.S. at 723 (acknowledging race 
may be considered in certain contexts “as part of a broader effort 
to achieve ‘exposure to widely diverse people, cultures, ideas, 
and viewpoints’”) (quoting Grutter, 539 U.S. at 330); Plyler v. 
Doe, 457 U.S. 202, 221 (1982) (“Paradoxically, by depriving the 
children of any disfavored group of an education, we foreclose 
the means by which that group might raise the level of esteem 
in which it is held by the majority.”).



28
have a compelling interest in assembling diverse 
student bodies not only across racial lines, but also 
“along all the qualities valued by the University.” 
Grutter, 539 U.S. at 340. Justice Powell recognized in 
Bakke that university admissions programs could 
consider “the variety of points of view, backgrounds 
and experiences of blacks in the United States.” 438 
U.S. at 323 (appendix to opinion of Powell, J.). 
Indeed, the concept of diversity within diversity was 
introduced by this Court long before the concept of 
“critical mass.” Grutter, 539 U.S. at 335-36. See also 
Akhil Reed Amar & Neal Kumar Katyal, Bakke’s 
Fate, 43 UCLA L. Rev. 1745, 1763 n.87 (1996) 
(“Justice Powell’s Bakke Appendix pointedK quoted 
Harvard’s recognition of the importance of intra- as 
well as inter-racial diversity.”) (citation omitted).

Second, in light of this clear law, UT’s critical mass 
inquiry can and should consider the rich diversity 
within and among underrepresented minority groups. 
UT’s current, multi-faceted admissions process meets 
this goal by properly ensuring consideration of factors 
beyond high school rank so that it is able to 
“assemblje] a class that is both exceptionally 
academically qualified and broadly diverse,” Grutter, 
539 U.S. at 329. Because the Top Ten Percent Plan, 
on the other hand, considered the single rigid 
measure, class rank, it excluded students with richly 
varied qualifications that cannot be captured by 
grades and class standing. Academically qualified 
and broadly diverse students who may not meet the 
top ten percent requirements could include 
intellectually adventurous students who enroll in 
demanding classes outside of their comfort zones 
rather than playing it safe to preserve their class 
rank; prodigies who achieve excellence in non- 
academic fields; backyard entrepreneurs who have



29
less academic success but are demonstrated leaders 
and risk-takers; or late bloomers who mature into 
their academic potential over time. These sorts of 
valuable experiences and qualities create a richly 
textured diversity within diversity that would be 
overlooked in a mechanical admissions program like 
the Top Ten Percent Plan. See Gurin et ah, Diversity 
and Higher Education, at 360 (outlining research on 
diversity that “demonstrates the significant impact of 
interactions with diverse peers” and its “critical 
importance [to students’] personal development”).

Third, because UT proactively recruits students of 
all races from disadvantaged socio-economic 
backgrounds, Petitioner’s claim that UT’s reliance on 
diversity within diversity serves only to identify 
affluent students from integrated, suburban schools 
is patently false. Fisher Supp. Br. 47-48 (Fifth 
Circuit, Oct. 4, 2013). Several variables in UT’s 
holistic review take into account socio-economic 
status. JA 162a-63a, 197a-98a. Thus, UT’s
admissions process does not favor students from any 
particular background, racial or otherwise; instead, 
its individualized holistic review promotes diversity— 
including intra-racial diversity— by admitting 
racially diverse students from diverse backgrounds of 
all kinds.

C. A diverse graduating class opens 
pathways to leadership and fosters 
public confidence and trust in 
educational institutions.

On-campus diversity is critical to a robust 
educational environment. It is also essential to 
creating a diverse pipeline of students who, after 
graduation, populate the echelons of the government, 
military, private sector, and civil society. For this 
reason, it is important for “ [a]11 members of our



30
heterogeneous society [to] have confidence in the 
openness and integrity of the educational institutions 
that provide this training.” Grutter, 539 U.S. at 332. 
Indeed, in Sweatt, this Court struck down UT Law 
School’s policy of racial segregation based, in part, on 
its recognition that a law school “cannot be effective 
in isolation from the individuals and institutions with 
which the law interacts.” Grutter, 539 U.S. at 332 
(quoting Sweatt, 339 U.S. at 634).

It is for these reasons that here, and in Fisher I, a 
broad array of amici curiae have submitted briefs to 
this Court detailing the many ways in which 
diversity in higher education benefits all aspects of 
society. See generally Amicus Br. of Fortune-100 and 
Other Leading American Businesses; Amicus Br. of 
Lt. Gen. Julius Becton, et al.; Amicus Br. of 
Association of American Medical Colleges, et al.

A diverse graduating class is particularly vital for 
large public universities like UT, whose graduates 
overwhelmingly fill the ranks of state legislatures 
and judiciaries. Indeed, UT alumni have gone on to 
become formidable leaders in Texas and across the 
nation in a wide variety of fields, including federal, 
state, and local governments, the private sector, and 
civil society. See e.g., Fisher I, Amicus Br. of 
Distinguished Alumni, at 5. Given this critical 
leadership development function, it is sensible and 
desirable that UT seek to bring together potential 
leaders from different backgrounds, races, and parts 
of the state and the world.

It is particularly crucial for UT to pursue diversity 
because, as detailed in Section I, supra, and 
acknowledged by UT, Resp. Br. 4, African-Americans 
were excluded from UT for much of its history—first 
by law and then in effect. And, more recently, before 
it adopted race-conscious admissions, see Section II.A



31
supra, UT had a “less-than-realistic environment” 
that was “not conducive to training the leaders of 
tomorrow,” SJA 24a-25a, because of the significant 
disparities between the numbers of African- 
Americans students at UT, and the number of 
African Americans in Texas and of African Americans 
in the populations of Texas’s high schools, Fisher I, 
Pet. App. 273a; JA 177a; SJA 3a.17 UT recognizes 
that “tpjublic confidence is the only real endowment 
of a state university.”18 Thus, UT’s efforts to develop 
a pipeline of diverse leaders serve the broader 
community, and bolster the public’s trust in the 
organizations and institutions that they populate.

CONCLUSION
At bottom, this case is not only about the 

pedagogical benefits of diversity but also about the 
related principle of individual dignity that students, 
like every member of our society, are due. A 
statement submitted by social scientists in Brown v. 
Board noted that segregated students “like all other

17 This legitimate concern about significant racial disparities 
does not in any way suggest—as Petitioner claims—that UT’s 
pursuit of critical mass was designed to achieve “demographic 
proportionality.” Pet. Br. 44. Rather, some degree of attention to 
the surrounding community is required, since “[a] university 
presenting itself as open to all may be challenged when the 
state’s minority population grows steadily but minority 
enrollment does not,” as has been the case in Texas. Pet. App. 
196a. UT’s consideration of such demographics arose only when 
it “first studied whether a race-conscious admissions program 
was needed to attain critical mass,” and not “as part of any 
individual admissions decision.” Pet. App. 193a.

18 University of Texas System Administration, Standards of
Conduct Guide 3 (2009) (quoting ELY. Benedict, UT President 
(1927-37)), http://www.utsystem.edu/systemcompliance/
SOCcombined.pdf.

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


32
human beings [] require a sense of personal dignity” 
and yet “almost nowhere in the larger society do they 
find their own dignity as human beings respected by 
others.” Social Scientists Statement, supra. Likewise, 
Dr. Martin Luther King, Jr., observed that the 
“founding fathers were really influenced” by the 
theological precept that all humans have “a 
uniqueness . . . [and a God-given sense of] dignity.” 
Dr. Martin Luther King, Jr., Address at the Ebenezer 
Baptist Church, The American Dream (July 4, 1965). 
That tenet rightly has continued to guide this Court’s 
jurisprudence in recent years. See e.g., Obergefell v. 
Hodges, 135 S. Ct. 2584, 2608 (2015) (“ [Petitioners] 
ask for equal dignity in the eyes of the law. The 
Constitution grants them that right.”); United States 
v. Windsor, 133 S. Ct. 2675, 2689 (2013) (Equal 
Protection principles apply to lesbian and gay couples 
who “aspire to occupy the same status and dignity as 
that of a man and woman in lawful marriage.”); 
Lawrence u. 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.”).

The right to define one’s own concept of existence is 
null if a salient aspect of that existence is relegated to 
oblivion by judicial fiat. Prospective students would 
be forced to cloak their differences and suppress their 
life-experiences to hide the personal racial identity 
that is intrinsic to who they are. In the end, 
Petitioner’s proposal to eliminate race from the 
individualized review process, if accepted, would 
require racial closeting. A decision finding UT’s 
admissions policy unconstitutional would send an 
unmistakable message at a crucial and sensitive 
moment for our nation’s progress: universities,
consider any experience an applicant may share, but



33
just not her race; administrators, retreat from your 
modest advances to reap the benefits of diversity; 
students, do not share your identity, because it is 
irrelevant or even unwelcome. The Court must not 
and need not pursue such a perilous path.

As this Court has wisely chosen to do before, it 
should instead adhere to existing precedent and 
affirm the validity of UT’s narrowly tailored, holistic 
review process. For the foregoing reasons, the Court 
should affirm the judgment of the Fifth Circuit.

Respectfully submitted,

Sherrilyn Ifill 
Director-Counsel 

Janai Nelson 
Christina Swarns 
Jin Hee Lee 
Rachel M. Kleinman 
Monique Lin-Luse 
Deuel Ross 
Liliana Zaragoza 
NAACP Legal Defense & 

Educational Fund, Inc. 
40 Rector St., 5th Floor 
New York, NY 10006

November 2, 2015

John Paul Schnapper- 
Casteras *

NAACP Legal Defense & 
Educational Fund, Inc. 

1444 I St. NW 
Washington, DC 20005 
202-682-1300 
j schnapper@naacpldf.org

* Counsel of Record

mailto:schnapper@naacpldf.org