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

    Case: 09-50822 Document: 00512427869 Page: 1 Date Filed: 11/01/2013

No. 09-50822

IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

Abigail Fisher,
Plaintiff-Appellant, 

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

Defendants-Appellees.

On Appeal from the United States District Court 
Western District of Texas, Austin Division

SUPPLEMENTAL BRIEF OF AMICI CURIAE 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. IN SUPPORT OF APPELLEES

NAACP Legal Defense & 
Educational Fund, Inc. 

Sherrilyn Ifill
Director Counsel 

Christina Swams 
Damon T. Hewitt 
40 Rector Street, 5th Floor 
New York, NY 10006

Joshua Civin
Counsel o f Record 

1444 I Street, NW, 10th Floor 
Washington, DC 20005 
jcivin@naacpldf.org 
(202)682-1300 
(202) 682-1312 (fax)

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

Theodore Shaw
666 Fifth Avenue
New York, NY 10103-3198

mailto:jcivin@naacpldf.org


Case: 09-50822 Document: 00512427869 Page: 2 Date Filed: 11/01/2013

CERTIFICATE OF INTERESTED PERSONS

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

The undersigned counsel of record certifies that the following listed persons 

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

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

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

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

2. NAACP Legal Defense & Educational Fund, Inc.

3. Black Student Alliance at the University of Texas Austin

4. Black Ex-Students of Texas, Inc.

5. Fulbright & Jaworski LLP

6. Sherrilyn Ifill

7. Christina Swarns

8. Joshua Civin

9. Damon T. Hewitt

10. Edward B. Adams, Jr.

11. Theodore Shaw

There are no parent corporations of the entities listed above; nor are there any 

publicly held companies that own 10 percent or more of their stock.

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Dated: November 1,2013
Is/ Joshua Civin 
Joshua Civin

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TABLE OF CONTENTS

Certificate of Interested Persons.............................................................................. i

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

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

Summary of Argument..............................................................................................3

Argument................................................................................................................... 7

I. The narrow constitutional issue left open on remand is whether
workable race-neutral alternatives could promote UT’s compelling 
interest in the educational benefits of diversity about as well as race­
conscious holistic review and at tolerable administrative expense................7

II. The existing record provides a firm basis for this Court to reaffirm
summary judgment for UT, but a remand may be prudent........................  10

A. As a threshold matter, Fisher’s continued pursuit of her claim is
no longer viable................................................................................  10

B. A wealth of additional evidence confirms that UT’s race­
conscious admissions are narrowly tailored.......................................12

III. Consideration of race in UT’s holistic admissions process is vital to
create a broadly diverse student body.........................................................  18

A. Race-conscious holistic review meaningfully supplements the
Top Ten Percent Plan........................................................................ 19

B. Race-conscious holistic review permits consideration of
diversity within and among underrepresented racial minorities......22

IV. Open paths to leadership and opportunity are mission-critical for UT......27

Conclusion.............................................................................................................. 29

Certificate of Compliance....................................................................................... 31

Certificate of Service.............................................................................................. 32

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TABLE OF AUTHORITIES

Cases

Fisher v. University o f Texas, 133 S. Ct. 241 1 (2013)................................... passim

Fisher v. University o f Texas, 631 F.3d 213 (5th Cir. 2011)..........  10, 12, 18, 27-28

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

Gratz v. Bollinger, 539 U.S. 244 (2003)................................................................2, 7

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

Hollingsworth v. Perry, 133 S. Ct. 2652 (2013)..................................................... 12

Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996)............................................. 2, 3, 28

Hopwood v. Texas, 861 F. Supp. 551 (W.D. Tex. 1994)........................................ 28

International Brotherhood o f Teamsters v. United States, 431 U.S. 324 
(1977).............................. ..................................................................................... 17

League o f United Latin American Citizens v. Perry, 548 U.S. 399 (2006)............ 23

Neonatology Associates, P.A. v. C.I.R., 293 F.3d 128 (3d Cir. 2002).................... 16

Parents Involved in Community Schools v. Seattle School District No. I ,
551 U.S. 701 (2007).......... .’..................................................................... 22-23,29

Regents o f University o f California v. Bakke, 438 U.S. 265 (1978)................... 7, 23

Sweatt v. Painter, 339 U.S. 629 (1950)...............................................................2, 28

Tennessee v. Lane, 541 U.S. 509 (2004)................................................................ 16

Texas v. Lesage, 528 U.S. 18 (1999)................................................................  10-11

United States v. Fordice, 505 U.S. 717 (1992)......................................................... 2

Wygant v. Jackson Board o f Education, 476 U.S. 267 (1986)................................. 9

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Statutes

Tex. Educ. Code § 51.803 (1997) (amended 1999, 2007 & 2009).......................... 3

Other Authorities

Todd Ackerman, UT Task Force Calls for Greater Racial Sensitivity,
Houston Chronicle, Jan. 21,2004.........................................................................14

Deirdre M. Bowen, Brilliant Disguise: An Empirical Analysis o f a 
Social Experiment Banning Affirmative Action, 85 Ind. L.J. 1 197 
(2010) .....................................................................................................................................................................................18

Jared Dawson, Another Face o f Affirmative Action, Horn, Oct. 9, 2012............... 21

Thomas J. Espenshade & Alexandria Walton Radford, No Longer 
Separate, Not Yet Equal: Race and Class in Elite College
Admission and Campus Life (2009)..................................................................... 20

Andrew Freidenthal, Shameful Graffiti Paints Larger Picture, Daily 
Texan, Sept. 22, 2008........................................................................................... 21

Dwonna Goldstone, Integrating the 40 Acres: The Fifty— Year 
Struggle for Racial Equality at the University o f Texas (2006).......................... 28

Kimberly A. Griffin et al., The Influence o f Campus Racial Climate 
on Diversity’ in Graduate Education, 35 Rev. Higher Educ. 535 
(2012) .................................................................................................................................................................................... 20

Patricia Gurin et ah, Diversity and Higher Education: Theory and 
Impact on Educational Outcomes, 72 Harv. Educ. Rev. 330 (2002).................. 26

Ralph K.M. Haurwitz, UT Student Paper Issues Apology for Cartoon,
Austin American-Statesman, Mar. 28, 2012...........................  21

Destinee Hodge, Simkins Hall Renamed in Unanimous Decision,
Daily Texan, July 15,2010....................................................................................14

Channing Holman, Taking Strides to Make the World Change, Daily 
Texan, May 1, 2012.............................................................................................. 21

Sylvia Hurtado, Benefits and Barriers: Racial Dynamics o f the

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Undergraduate Experience, in The Next Twenty-Five Years:
Affirmative Action in Higher Education in the United States and
South Africa 196 (David L. Featherman et al. eds., 2010).................................. 20

Jennifer Renee Johnson, Sunday Dialogue, Using Race in Admissions,
N.Y. Times, Oct. 6, 2012................ ....... ...................................................... 23-24

Emma Coleman Jones (Jordan), Litigation Without Representation:
The Need for Intervention to Affirm Affirmative Action, 14 Harv.
C.R.-C.L.L. Rev. 31 (1979)...............!................................................................. 17

David Kassabian, Officials Talk Camera Upgrades: New Technology 
Would Detect Suspicious Acts Around MLK Statue, Daily Texan,
Aug. 27, 2004.......................................................................................................15

Alberto Long, Bleach or No Bleach, Balloon Attacks in West Campus 
Cause Controversy, Daily Texan, Sept. 14, 2013............................................... 21

Kolten Parker, ‘Affirmative Action Bake Sale ’ Hits Sour Note with 
University o f Texas Officials, Houston Chronicle, Oct. 3, 2013................... 21-22

Thomas D. Russell, “Keep Negroes Out o f Most Classes Where There 
Are a Large Number o f Girls”: The Unseen Power o f the Ku Klux 
Klan and Standardized Testing at the University o f Texas, 1899- 
1999, 52 S. Tex. L. Rev. 1 (2010).................... ...................................................14

Ahsika Sanders, Racial Conflicts Tarnish History o f Roundup, Daily 
Texan, Apr. 13,2011......    21

Rebecca L. Stotzer & Emily Hossellman, Hate Crimes on Campus:
Racial/Ethnic Diversity and Campus Safety, 27 J. of Interpersonal
Violence 644 (2012)..!......................... .....’........................................................... 18

University of Texas at Austin, Office of the President, Comments on 
the Report o f the Task Force on Racial Respect and Fairness, May 
10, 2004, available at
http://www.utexas.edu/president/speeches/rrf_ 051004.pdf................................ 15

University of Texas at Austin, Report o f the Task Force on Racial 
Respect and Fairness, (2004), available at
http://www.utexas.edu/news/attach/2004/2262_report_respect.pdf...............14-15

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INTERESTS OF AMICI

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

(BSA), the NAACP Legal Defense & Educational Fund, Inc. (LDF), and the Black 

Ex-Students of Texas, Inc. (BEST). Both the BSA and LDF have participated in 

this litigation from its inception and have presented oral argument to this Court. 

BEST joined them in the amicus brief they filed in the Supreme Court. Pursuant to 

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

of this amicus brief. No counsel for any party had a role in authoring this brief.

The BSA serves as the leadership voice for African-American students at the 

University of Texas at Austin [hereinafter 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 

process. Although UT’s 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.

BEST brings together UT alumni to assist in recruiting, retaining, and 

supporting African-American students at UT. Many BEST participants 

experienced significant racial isolation when they were UT students between 1997 

and 2004 when the University did not consider race in admissions. All too often 

BEST participants were the only, or one of a very few, African-American students

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in their classes. Some experienced overt incidents of racial hostility, which 

undermined their sense of belonging within the campus community and dampened 

cross-racial interactions. 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 define 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 opportunity 

for all students. In numerous groundbreaking cases, LDF has represented African- 

American students and applicants, as parties and amici, seeking to expand access 

and opportunity—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).

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SUMMARY OF THE ARGUMENT

Although the Supreme Court declined to resolve the merits of Abigail

Fisher’s challenge to UT’s admissions policy, it substantially narrowed the 

constitutional issues that remain open for resolution. See Fisher v. Univ. o f Tex., 

133 S. Ct. 2411 (2013). On remand, the key merits question is the last one 

identified in the Court’s supplemental briefing order: “What workable alternatives 

to the use of race were available to the University that were not being deployed?” 

Amici agree with UT that there are no additional workable race-neutral alternatives 

beyond those that UT had already implemented in 1997-2004, and continues to use 

today, that would allow UT to make further progress, at tolerable administrative 

expense, toward fully achieving the educational benefits of diversity. UT Supp. 

Br. 31-35.

UT aggressively experimented with race-neutral measures in 1997-2004, 

when a ban on race-conscious admissions was in place as a result of this Court’s 

decision in Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996). UT expanded outreach 

and scholarships, and it took full advantage of a state law guaranteeing admission 

to all Texas residents ranked in the top of their high school graduating class. See 

Tex. Educ. Code § 51.803 (1997) (amended 1999, 2007 & 2009) [hereinafter the 

Top Ten Percent Plan], It also instituted individualized review for applicants not 

admitted through the Top Ten Percent Plan. See Fisher v. Univ. o f Tex., 645 F.

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Supp. 2d 587, 591 (W.D. Tex. 2009). That whole-file review included socio­

economic status of applicants’ families, extracurricular activities, community 

service, leadership qualities, and multiple other factors—but it did not consider 

race. See JA 347a-381a.‘

Fisher challenges UT’s conclusion that these facially race-neutral measures 

failed to achieve sufficient diversity, necessarily including a critical mass of 

underrepresented minority students. But that challenge is beyond the scope of this 

remand. The Supreme Court remanded for a careful inquiry into narrow tailoring, 

which assesses the means used to achieve the University’s goals; the University’s 

determination that it needed to make further progress beyond what it achieved in 

1997-2004 is an educational judgment about ends, to which courts should defer 

under the separate “compelling interest” prong of strict scrutiny.

If the Court reaches this issue, the existing record amply supports an

independent determination by this Court that UT can constitutionally pursue a

more diverse student body than it assembled through race-neutral means in 1997-

2004. For instance, UT enrolled an average of approximately 7,000 students in

each freshman class during this period; yet, at most, there were only 309 African-

American freshmen. At no point during this period did African Americans 1

1 Record references cite to the Supreme Court Joint Appendix (JA) and the 
Supreme Court Supplemental Joint Appendix (SJA) because of their ready 
availability online at http://www.utexas.edu/vp/irla/Fisher-V-Texas.html. The 
briefs cited herein are also linked on that website.

4

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constitute more than 4.5% of any first-year class. JA 127a. Moreover, 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.2

Assuming this issue is necessary to decide, however, this Court should not 

address it in the first instance; instead, it should remand the case to the District 

Court, which is best positioned to conduct the sort of fact-based “careful judicial 

inquiry” that narrow tailoring requires. Fisher, 133 S. Ct. at 2420. Amicus briefs 

submitted at prior stages of this case by LDF, BSA, and BEST—as well as 

others—point to a wealth of evidence that, if presented to the District Court, would 

corroborate UT’s educational judgment that its efforts to fully obtain the 

educational benefits of diversity, through the robust use of race-neutral 

alternatives, were not successful during the post-Hopwood, pre-Grutter period.

Fisher further argues that the “infinitesimal impact” of UT’s addition of race

to its individualized review component beginning in 2005 “demonstrates that UT’s

pre-2005 race-neutral system would have worked about as well and, therefore, UT

could have achieved its stated ends through nonracial means.” Fisher Supp. Br. 35

(internal citations, quotation marks, and textual alterations omitted). While this

2 While this brief focuses on the consequences of Fisher’s arguments for African 
Americans, amici believe UT’s consideration of race as one factor in its holistic 
review of all applicants, including other underrepresented minorities, is similarly 
constitutional.

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issue is within the scope of the Supreme Court’s remand, Fisher’s conclusion is 

erroneous. As this Court has previously concluded, race-conscious individualized 

review is a meaningful supplement to the Top Ten Percent Plan. Not only has it 

increased overall African-American enrollment, but it also provides a flexible 

means to implement UT’s goal of diversity within and among underrepresented 

minority groups, which enables students to be treated as individuals rather than as 

token representatives of a racial group. This is a key precondition for breaking 

down racial stereotypes and fostering the type of cross-racial understanding that 

can allow a university to achieve the educational benefits of diversity. UT’s 

recognition that fully achieving those benefits requires some consideration of intra- 

racial diversity is entitled to deference. Indeed, it is fully consistent with the 

overriding constitutional requirement that race-conscious policies are sufficiently 

flexible to treat each applicant as an individual. See Fisher, 133 S. Ct. at 2420.

A remand also would be useful to resolve a threshold issue that may render 

it unnecessary to decide the constitutionality of UT’s race-conscious admissions 

policy in this case. Fisher’s standing to continue litigating is severely undermined 

by strong evidence that she would not have been admitted in Fall 2008, even if UT 

had not considered race at all in that admissions cycle. Although the existing 

record is sufficient for this Court to rule in favor of the University on this threshold 

issue and dispose of Fisher’s case outright, considerations of judicial restraint

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suggest that the District Court is better positioned to make this determination in the 

first instance, particularly given the factual dispute that Fisher alleges.

Finally, amici write separately to emphasize the appropriateness of this 

Court’s prior conclusion that it was constitutionally permissible for UT to consider 

severe disparities between the racial makeup of the student body and the state’s 

increasingly diverse population because they undermine UT’s mission, as Texas’s 

flagship university, which includes providing visibly open pathways to civic, 

political, and economic leadership for all students.

ARGUMENT

I. The narrow constitutional issue left open on remand is whether 
workable race-neutral alternatives could promote UT’s compelling 
interest in the educational benefits of diversity about as well as race­
conscious holistic review and at tolerable administrative expense.

The constitutional issue that the Supreme Court left unresolved is narrow.

See Fisher, 133 S. Ct. at 2419-22.

As an initial matter, this case can no longer serve as a vehicle for 

undermining the well-established principle that universities have a compelling 

interest in pursuing “the educational benefits that flow from a diverse student 

body.” Id. at 2417. The Supreme Court embraced “as given” its prior precedents 

on this issue. Id. (citing Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. 

Bollinger, 539 U.S. 244 (2003); and Regents o f Univ. o f Cal. v. Bakke, 438 U.S. 

265 (1978)).

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Moreover, the Supreme Court agreed with this Court that, under those 

precedents, it was appropriate to defer to UT’s educational judgment that its 

pursuit of the “goal of achieving the educational benefits of a more diverse student 

body” is “integral to its mission.” Id. at 2417, 2419. Accordingly, this Court’s 

holding in favor of UT on the “compelling interest” prong of strict-scrutiny review 

is the law of this case.

The Supreme Court’s sole disagreement with this Court concerned its 

analysis of whether UT’s race-conscious admissions policy was a narrowly tailored 

means to meet its compelling interest in the educational benefits of diversity. In 

the Supreme Court’s view, this Court relied too heavily on UT’s “assertion that its 

admissions process uses race in a permissible way without . . . giving close 

analysis to the evidence of how the process actually works in practice.” Id. at 

2421. Although the Supreme Court clarified that this “degree of deference” in the 

narrow-tailoring inquiry (in contrast to the compelling interest analysis) is “at odds 

with Grutter's command,” id. at 2420-21, it made clear that it was not heightening 

the legal standard beyond what is required by Grutter.

For the purposes of these remand proceedings, the focal point of the narrow­

tailoring analysis is the workability of race-neutral alternatives. Applying its prior 

case law, the Supreme Court explained:

The reviewing court must ultimately be satisfied that no workable
race-neutral alternatives would produce the educational benefits of

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diversity. If “a non-racial approach . . . could promote the substantial 
interest about as well and at tolerable administrative expense,” then 
the university may not consider race.

Id. at 2420 (quoting Wygant v. Jackson Bd. ofEduc., 476 U.S. 267, 280 n.6 (1986) 

(additional citation and quotation marks omitted).

In so holding, the Supreme Court stressed that the University’s educational 

judgment is still relevant to narrow tailoring. The Court also emphasized that “a 

court can take account of a university’s experience and expertise in adopting or 

rejecting certain admissions processes.” Id. And it reiterated Grutter's admonition 

that “[njarrow tailoring does not require exhaustion of every conceivable race- 

neutral alternative.” Id. (quoting Grutter, 539 U.S. at 339-340) (emphasis in 

Fisher).

Because the only open question concerns narrow tailoring, this Court should 

rebuff any efforts by Fisher and her amici to open inquiries beyond that mandated 

by the Supreme Court—especially whether UT had a compelling interest in 

continuing to make progress toward fully achieving the educational benefits of 

diversity beyond the results of its race-neutral efforts in 1997-2004. The means 

used to achieve a compelling interest are the focus of narrow-tailoring, not the end 

itself.

Significantly, the Supreme Court declined to adopt Fisher’s arguments, 

revived in her supplemental brief, that universities should be compelled to satisfy a

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“strong basis in evidence” standard to demonstrate the need for promoting 

diversity. Fisher Supp. Br. 25. For reasons previously articulated by this Court, 

that standard, derived from the context of reviewing laws to remedy past or present 

discrimination, is inapplicable to the diversity interest here. Fisher, 631 F.3d 213, 

233-34 (5th Cir. 2011); UT Supp. Br. 25-26.

II. The existing record provides a firm basis for this Court to reaffirm
summary judgment for UT, but a remand may be prudent.

A. As a threshold matter, Fisher’s continued pursuit of her claim is 
no longer viable.

The record firmly establishes that Fisher would not have been admitted to 

the Fall 2008 freshman class, even if UT had utilized an entirely race-neutral 

admissions policy. As the University explains, see UT Supp. Br. 6-19, this fact is 

fatal to Fisher’s claim under Texas v. Lesage, 528 U.S. 18 (1999) (per curiam).

In UT’s highly competitive individualized review for applicants who, like 

Fisher, do not qualify under the Top Ten Percent Plan, admission is determined 

based upon an Academic Index (AI) and a Personal Achievement Index (PAI). JA 

369a-375a. Grades and standardized test scores are the sole factors in the AI; race 

is considered in a contextualized fashion only in the PAI. Id. Fisher’s claim rests 

upon the false assumption that her PAI was lower because of her race—a 

contention the University and amici dispute. See UT Supp. Br. 11. Yet, the record 

reveals that even if Fisher had a “perfect” PAI, she still would have failed to earn

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admission in Fall 2008. Not a single Fall 2008 applicant with Fisher’s AI of 3.1 

out of 6 possible points was admitted to the particular UT programs to which she 

applied, even those with the highest possible PAL JA 415a-16a.

Under Lesage, these facts are sufficient to affirm summary judgment in 

favor of the University. Lesage is variously characterized as limiting either 

standing or liability for constitutional clams. See UT Supp. Br. 8-9 (collecting 

cases). Either way, Lesage prohibits challenges to affirmative action policies 

where the applicant would have been denied admission regardless of her race, and 

her claim is limited to damages, rather than forward-looking injunctive or class­

wide relief. 528 U.S. at 20-21. At this point, Fisher can seek only money damages 

because she did not assert class claims, and her graduation from Louisiana State 

University in May 2012—after this Court’s prior decision—mooted the forward- 

looking injunctive relief that she pressed up to that point. Thus, Lesage bars 

continued litigation.

If the Court concludes that the record on this threshold issue is 

inconclusive—which it is not- it should remand to the District Court for further 

fact-development or fact-finding as appropriate. In either case, the extant record 

precludes summary judgment for Fisher. Her unsubstantiated allegations, see 

Fisher Supp. Br. 15-16, should not trump UT’s credible evidence; at most her 

contentions create a genuine issue of material fact that would require remand to the



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District Court for resolution.

Remand to the District Court would be proper for another reason. Fisher 

complains that anything short of immediate resolution “would subject additional 

UT admissions classes to constitutional infringement.” Fisher Supp. Br. 3. Yet, as 

this Court has recognized, Fisher did not—and could not—independently 

challenge any admissions cycle after her application was denied in 2008. Fisher, 

631 F.3d at 217. It defies principles of judicial restraint to address questions of 

significant constitutional dimension without assurance that the plaintiff has a 

sufficiently concrete interest to dispute the continued operation of a policy that will 

have tangible educational benefits for thousands of current and future students. Cf 

Hollingsworth v. Perry, 133 S. Ct. 2652, 2659 (2013) (“[I]l is not enough that a 

party invoking the power of the court have a keen interest in the issue.”). Under 

these circumstances, Fisher should not be permitted to take short-cuts to compel 

judicial review—much less appellate review—of a constitutional issue that 

ultimately may not provide her with any tangible relief. Cf. id. at 2661 (resisting 

the “natural urge to proceed directly to the merits of [an] important dispute and to 

settle it for the sake of convenience and efficiency”) (citation and internal 

quotation marks omitted; alteration in original).

B. A wealth of additional evidence confirms that UT’s race-conscious 
admissions arc narrowly tailored.

Because it is beyond the scope of this remand, this Court need not address

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Fisher’s contention that UT’s adoption of race-conscious admissions beginning in 

2005 was unnecessary because it had already achieved a critical mass of 

underrepresented minority students during the post-Hopwood, pre-Grutter years. 

Fisher Supp. Br. 22-25. If this Court nonetheless decides to reach this issue, the 

existing record contains plentiful evidence for this Court to affirm summary 

judgment in UT’s favor. See UT Supp. Br. 35.

But amici respectfully request that, if the Court reaches this issue, it should 

exercise its discretion and remand this matter to the District Court to conduct, in 

the first instance, the “careful judicial inquiry” that narrow tailoring requires. 

Fisher, 133 S. Ct. at 2420. Modest, additional fact development should dispel any 

doubt about the deleterious impact of the substantial racial isolation that was an 

unavoidable aspect of campus life for those who attended UT in the post- 

Hopwood, prc-Grutter period (1997-2004). Cf Fisher, 133 S. Ct. at 2421 (“Unlike 

Grutter, which was decided after trial, this case arises from cross-motions for 

summary j udgment.”).

In prior briefs, BSA, LDF and BEST have drawn attention to reports of a 

number of racially charged incidents that occurred on campus during the same 

2003-04 period when UT was undergoing a thorough review of its admissions 

policies. For instance, a complaint was lodged alleging racial profiling by campus 

police; one majority-white fraternity was suspended and another was sanctioned

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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 his birth. See Todd Ackerman, UT Task Force

Calls for Greater Racial Sensitivity, Hous. Chron., Jan. 21, 2004, at A17.3 It is

difficult to underestimate the pronounced chilling effect that such incidents may

have on minority students’ willingness to apply, matriculate, and fully engage as

active stakeholders in the campus community.

These incidents were not the first, or 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.

Id.. After ten months of study and meetings, the Task Force issued a report in

January 2004, while the University’s post-Grutter review of its admissions policies

was still pending. See Univ. of Tex. at Austin, Report o f the Task Force on Racial

Respect and Fairness, at 3 (2004) [hereinafter the Task Force Report], The Task

Force proposed a variety of interventions, recommending that UT:

• “emphasize often and unequivocally the University’s commitment

3 At the time, this statue was the only monument commemorating a person of color 
on a campus that had several 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 o f Most Classes 
Where There Are a Large Number o f Girls’’: The Unseen Power o f the Ku Klux 
Klan and Standardized Testing at the University o f Texas, 1899-1999, 52 S. Tex. 
L. Rev. 1, 35 (2010); Dcstinee Hodge, Simkins Hall Renamed in Unanimous 
Decision, Daily Texan, July 15, 2010.

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to serve all Texas residents, particularly those who have been 
historically excluded from higher education in the state of Texas,” 
id. at 6;

• “[ijnstitute 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” in order to avoid being “repeatedly called on by well- 
intentioned instructors hoping to be inclusive often resulting in 
discomfort for the students who felt as if they were under a 
microscope, id. at 12, or treated as “spokespersons for their 
race”—a concern underscored bythe Supreme Court just months 
earlier in Gruffer, 539 U.S. at 319; and

• increase the recruitment, retention, and advancement of 
underrepresented minority students, Task Force Report at 5, 15-17.

In his response to the Task Force Report, Larry Faulkner, then President of 

UT, recognized the connection between improving campus climate and achieving a 

critical mass of underrepresented minority students. Univ. of Tex. at Austin, 

Office of the President, Comments on the Report o f the Task Force on Racial 

Respect and Fairness ^ 41, May 10, 2004. Reinforcing the pressing need to 

implement these proposals, additional incidents of racial hostility occurred in the 

months after the Task Force issued its report, including further vandalism 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.

This series of events belies Fisher’s claim that UT rushed to judgment when

President Faulkner issued a statement, on the day Grutter was decided, expressing

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his view that race-conscious admissions were a necessary supplement to race- 

neutral alternatives. Cf. Fisher Supp. Br. 26. To the contrary, his suggestion was 

grounded in the context of the Task Force’s proceedings, as well as UT’s prior, 

multi-year experience with race-neutral admissions after Hopwood.

On remand, the District Court could take into account the extensive array of 

contemporaneous evidence regarding the Task Force, as well as the incidents of 

racial hostility that prompted it, as relevant “[cjontext” that “matters,” Grutter, 539 

U.S. at 327, for the University’s decision to consider race as a factor in its holistic 

admissions program. Alternatively, the District Court (or this Court if it declines 

to remand) could take judicial notice of this material. See, e.g., id. at 330-31 

(relying on material presented by amici); Neonatology Assocs., P.A. v. C.I.R., 293 

F.3d 128, 132 (3d Cir. 2002) (Alito, J.) (“Some amicus briefs collect background 

or factual references that merit judicial notice.”) (citation omitted); cf. Tennessee v. 

Lane, 541 U.S. 509, 524-25 (2004) (taking into account the historical “backdrop” 

for challenged government action).

Furthermore, BEST participants and former BSA members could provide 

useful testimony regarding the campus climate during the post-Hopwood, pre- 

Grutter years. African Americans and other underrepresented minority students 

have a particular stake in the outcome that is not always fully aired when 

unsuccessful applicants square off against university officials in affirmative-action

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litigation. See Emma Coleman Jones (Jordan), Litigation Without Representation: 

The Need for Intervention to Affirm Affirmative Action, 14 Harv. C.R.-C.L.L. Rev. 

31, 33 n.9 (1979) (describing the failure by the California Supreme Court to act on 

a motion by representatives of African-American students to present evidence); 

Fisher, 645. F. Supp. 2d at 590 (noting that motions to intervene by amici and 

others were denied in this case). Moreover, because all students benefit from a 

diverse student environment, white students and others also may have important 

contributions to make to this inquiry.

As the Supreme Court has recognized, testimony about “personal 

experiences” can supplement statistical evidence—such as the admissions data in 

the existing record—by bringing “the cold numbers convincingly to life.” Int'l 

Bhd. o f Teamsters v. United States, 431 U.S. 324, 339 (1977). The potency of such 

anecdotes is well-illustrated by an amicus brief filed in the Supreme Court by a 

racially diverse group of former UT student body presidents, many of whom 

attended UT during the 1997-2004 period. See S. Ct. Amicus Brief for Former UT 

Student Body Presidents.

In addition to contemporaneous UT-specific evidence, UT’s educational 

judgment is supported by research finding that more diverse colleges typically

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have more racially inclusive and less hostile campus climates.4 And ample 

research regarding schools across the nation further demonstrates the 

unworkability of the sorts of race-neutral alternatives proposed by Fisher and her 

amici. See, e.g., S. Ct. Amicus Br. for 444 Am. Soc. Sci. Researchers. Again, this 

Court could take judicial notice of such research, or it could remand for 

development of evidence, including expert testimony, on this point.

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

Regardless of whether this Court remands, it should reject Fisher’s 

contention that UT’s race-conscious, individualized review cannot be narrowly 

tailored because it has “had an infinitesimal impact” on underrepresented minority 

enrollment. Fisher Supp. Br. 35 (quoting Fisher, 631 F.3d at 263 (Garza, J.)). 

While this component of UT’s admissions program is “modest” in its approach, 

Grittier, 539 U.S. at 393 (Kennedy, J., dissenting), it has meaningfully advanced 

the educational benefits of diversity that UT seeks to obtain.

4 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 campuses with 
higher percentages of African-American and Latino students); Deirdre M. Bowen, 
Brilliant Disguise: An Empirical Analysis o f a Social Experiment Banning 
Affirmative Action, 85 Ind. L.J. 1197, 1199 (2010) (“Underrepresented minority 
students in states that permit affirmative action encounter far less hostility and 
internal and external stigma than students in anti-affirmative action states.”).

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A. Race-conscious holistic review meaningfully supplements the Top 
Ten Percent Plan.

UT’s “consideration of race in admissions does increase the level of 

minority enrollment.” Fisher, 645 F. Supp. 2d at 610 n.14. During UT’s multi­

year experiment solely with race-neutral admissions (1997-2004), the percentage 

of Texas high school students not admitted through the Top Ten Percent Plan who 

were African Americans stagnated at 3-4%. SJA 157a. But after UT reintroduced 

race as a factor in its individualized review, African-American enrollment as a 

percentage of non-Top Ten Percent enrollees increased between 2005 and 2008, 

even as the slots available for such students declined due to the popularity of the 

Top Ten Percent Plan. Id. Overall, in the first four entering classes after UT’s 

2004 decision to use race-conscious admissions, 435 out of 1,544 African- 

American students—a full 28%—were admitted through the holistic admissions 

program. See id. at 156a- 157a.

Moreover, comparing the incoming freshman class for the 2004-05 school 

year (the last class admitted exclusively through race-neutral admissions) with the 

incoming freshman class for the 2008-09 year (the class to which Fisher applied), 

total African-American enrollment increased by 21.4%. Id. While at least some of 

this increase was through Top Ten Percent admissions, UT’s adoption of race­

conscious admissions likely affected matriculation rates among eligible African

Americans by signaling that the University would be a more welcoming

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environment. Cf Kimberly A. Griffin et al., The Influence o f Campus Racial 

Climate on Diversity in Graduate Education, 35 Rev. Higher Educ. 535, 557 

(2012) (“Broad efforts to increase the presence of people of color across campus 

appear to influence favorably prospective students’ perceptions of the institution’s 

commitment to diversity and signal an appreciation of the voices, needs, and 

experiences of individuals from a variety of backgrounds.”).

These raw numbers only begin to tell the story. Research confirms that an 

increase in the enrollment of African-American students as small as “a one 

percentage point increase in the share of [ Jstudcnts [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); see also Sylvia 

Hurtado, Benefits and Barriers: Racial Dynamics o f the Undergraduate 

Experience, in Die Next Twenty-Five Years: Affirmative 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”).

Even if this Court were to agree with Fisher that the numerical impact of

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race-conscious admissions has been limited, that conclusion would not support her 

contention that UT flunks narrow-tailoring. While UT has taken strides to promote 

a more welcoming and inclusive campus climate, it concedes that it has not yet 

achieved a critical mass of underrepresented minorities. UT Supp. Br. 49. 

African-American students are still represented at mere token levels in too many 

classrooms and other settings on campus. Moreover, racial hostility directed 

towards African-American students has not entirely abated.5

5 See, e.g., Channing Holman, Taking Strides to Make the World Change, Daily 
Texan, May I, 2012 (“I was automatically labeled as an athlete because I was 
black. I have been the only black in a class of 100 . . . I’ve been overlooked 
during office hours . . . and I’ve been called “the n-word” [racial epithet] while 
walking on . . . campus.”); Jared Dawson, Another Face o f Affirmative Action, 
Horn, Oct. 9, 2012 (“Everything isn’t perfect here, of course. I can still walk 
around campus all day and never see someone who looks like me. I can still be 
crossing the street and have someone drive by and call out to me using a racist 
slur—unfortunately it has happened.”); Ahsika Sanders, Racial Conflicts Tarnish 
History o f Roundup, Daily Texan, Apr. 13, 2011 (connecting a recent incident of 
hostility to the history of racial tensions between fraternity members and African- 
American students at annual spring fraternity parties); Ralph K.M. Haurwitz, UT 
Student Paper Issues Apology for Cartoon, Austin Am.-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 depicting President Obama lynched and hanging from a 
tree).

Even after the Supreme Court’s remand, allegations of “bleach-bombings” 
and an “affirmative action bake sale” have rocked the UT campus. See, e.g., 
Alberto Long, Bleach or No Bleach, Balloon Attacks in West Campus Cause 
Controversy, Daily Texan, Sept. 14, 2013 (detailing reports that minority students 
were targeted by balloons, allegedly filled with bleach, thrown from upper floors 
of student apartment buildings); see also Kolten Parker, ‘Affirmative Action Bake 
Sale ’ Hits Sour Note with University o f Texas Officials, Hous. Chron., Oct. 3, 2013

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In the face of these challenges, BSA members and other current African- 

American students, along with alumni participants in BEST, are committed to 

improving the campus community. Amici firmly believe that—consistent with 

Grutter and Fisher—UT can and should do more, not less, to ensure that all 

students fully attain the educational benefits of diversity.6

B. Racc-conscious holistic review permits consideration of diversity 
within and among underrepresented racial minorities.

Fisher’s challenge to the efficacy of UT’s race-conscious review is flawed 

for a more fundamental reason. Her narrow focus on the bottom-line numeric 

impact on minority enrollment, see, e.g., Fisher Supp. Br. 23, inappropriately treats 

all minority students as fungible. In addition to creating an inappropriate white vs. 

non-white binary, see Parents Involved in Community Schools v. Seattle School

(describing “affirmative action bake sale” that one university official characterized 
as “inflammatory and demeaning” and “creating] an environment of exclusion and 
disrespect among . . . students, faculty and staff”).
6 Fisher’s continued reliance on Parents Involved is inapposite. Cf Fisher Supp. 
Br. 33-34. Although Parents Involved questioned the necessity of a K-12 student 
assignment plan that had minimal statistical impact, the Supreme Court noted that 
this plan involved rigid binary racial classifications that could be “determinative 
standing alone.” Parents Involved in Community Schools v. Seattle School District 
No. /, 551 U.S. 701, 723 (2007); Fisher, 645 F. Supp. 2d at 610. In Parents 
Involved, the Court distinguished the type of 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) (distinguishing Seattle’s “rigid criteria” 
from the University of Michigan Law School’s holistic review).

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District No. /, 551 U.S. 701, 786 (2007), Fisher fails to acknowledge that

constitutionally sound, race-conscious admissions policies “must be sensitive to 

important distinctions within these broad groups” of students of different races, 

including underrepresented Latino and African-American students. Fisher, 631 

F.3d at 245 (emphasis added). In past cases, the Supreme Court criticized Texas 

for ignoring the fact that Latino populations in different parts of the state have 

“divergent needs and interests.” League o f United Latin Am. Citizens v. Perry, 548 

U.S. 399, 435 (2006). Similarly, Justice Powell recognized in Bakke that 

university admissions 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.).

The University’s holistic admissions process is designed to provide the 

flexibility to admit exceptional students who bring a set of 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. For example, one current African- 

American UT student who was admitted through individualized review—and is 

now thriving as a chemistry major—attended a small high school in Tyler, Texas, 

where she “was a member of the debate team and student government, played five 

sports, won medals in statewide track competitions and received academic 

honors.” Jennifer Renee Johnson, Sunday Dialogue, Using Race in Admissions,

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N.Y. Times, Oct. 6, 2012. “As the sixth-best student in a class of 45,” however, 

she “just missed out” on the cut-off for the Top Ten Percent Plan. Id.

Students admitted through the holistic review process contribute to the 

vibrancy and diversity of the UT community. For instance, students who come 

from integrated high schools and neighborhoods are often particularly successful in 

bridging racial barriers and navigating complex environments. See UT Supp. Br. 

48. The Top Ten Percent Plan may overlook such applicants, especially insofar as 

it draws minority students primarily from predominantly segregated schools and 

neighborhoods.

Fisher mocks UT’s concept of diversity within diversity, alleging that UT is 

simply seeking the particular type of students it prefers, especially affluent ones 

from integrated, suburban schools. Fisher Supp. Br. 47-48. Nothing could be 

further from the truth. UT has engaged in aggressive efforts to recruit students of 

all races from disadvantaged socio-economic backgrounds, and several variables in 

UT’s holistic review take into account socio-economic status. JA 112a-13a, 147a- 

48a. Indeed, individualized review permits admissions officers to recognize 

applicants who need to work part-time or care for a relative and, thus, struggle to 

match the class rank of wealthier students without these time commitments. See S. 

Ct. Amicus Br. for Ass’n of Am. Law Schs. 29-33. UT’s admissions process does 

not include a preference for students from particular backgrounds, racial or

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otherwise; instead, it promotes diversity by using individualized holistic review to 

admit students with multiple different backgrounds.

Fisher’s proposed race-neutral approaches might not erode racial diversity 

among Top Ten Percent Plan admittees, but they would certainly limit racial 

diversity among holistic review admissions—with significant adverse

consequences for UT’s educational mission. It is especially critical for UT to 

ensure meaningful representation of African Americans among these non-Top Ten 

Percent students, as well as among Top Ten Percent students. The multi-faceted 

holistic admissions process is designed to ensure certain students are not 

overlooked—applicants such as budding leaders who divert time and energy from 

studying to spearhead extracurricular activities or civic activism; intellectually 

adventurous students who enroll in demanding classes outside their comfort zone 

rather than playing it safe to preserve their class rank; prodigies who achieve 

excellence as Olympic medalists, novelists, or backyard entrepreneurs but have 

comparatively less academic success overall; or late bloomers who mature into 

their academic potential over time. See id. If this group of admitted students 

contained few African American or Latino students, racial stereotypes would be 

reinforced rather than diminished.

Of course, consideration of race as one factor among many in UT’s holistic 

review process may also benefit students who are not underrepresented minorities.

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Fisher, 631 F.3d at 236. The holistic admissions process allows UT to decide, for 

instance, that a non-Top Ten Percent “white student who has demonstrated 

substantial community involvement at a predominantly Hispanic high school may 

contribute a unique perspective.” Id. Such individuals—along with African 

Americans and Latinos who are, for example, talented debaters or musicians—are 

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

increasing cross-racial understanding, breaking down racial stereotypes and, 

ultimately, creating an educational environment where students feel free to develop 

their individuality. Cf Patricia Gurin et al., Diversity and Higher Education: 

Theoiy and Impact on Educational Outcomes, 72 Harv. Educ. Rev. 330, 360 

(2002) (“Diversity enables students to perceive differences both within groups and 

between groups. . . .”).

Requiring UT to exclude consideration of race from its holistic review 

would force it “to become a much different institution and sacrifice a vital 

component of its educational mission.” Grutter, 539 U.S. at 340; see Fisher, 133 

S. Ct. at 2434 n.3 (Ginsburg, J., dissenting) (noting that the Court did not call into 

question this aspect of Grutter). As this Court previously recognized, percentage 

plans, by themselves,

may be a race-neutral means of increasing minority enrollment [but] 
they are not a workable alternative—at least in a constitutionally 
significant sense—because “they may preclude the university from 
conducting the individualized assessments necessary to assemble a

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student body that is not just racially diverse, but diverse along all the 
qualities valued by the university.”

Fisher, 631 F.3d at 239 (quoting Grntter, 539 U.S. at 340); UT Supp. Br. 31-34. 

This is not a “tolerable administrative expense” that any university should be 

compelled to bear. Fisher, 133 S. Ct. at 2420 (internal citations and quotation 

marks omitted). Thus, 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.

IV. Open paths to leadership and opportunity are mission-critical for UT.

As part of its justification for considering race in its holistic review process,

UT expressed concern that the “significant differences between the racial and

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

population prevent the University from fully achieving its mission.” SJA 24a

(emphasis added). This legitimate concern does not suggest—as Fisher claims—

that UT’s pursuit of critical mass was designed to achieve “demographic parity.”

Fisher Supp. Br. 42. At UT, as this Court previously recognized, “[t]he need for a

state’s leading educational institution to foster civic engagement and maintain

visibly open paths to leadership . . . requires a degree of attention to the

surrounding community.” Fisher, 631 F.3d at 237. Indeed, “[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

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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 UT 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 v. Painter, 339 U.S. 629, 

634 (1950); see generally Dwonna Goldstone, Integrating the 40 Acres: The 

Fifty— Year Struggle for Racial Equality at the University o f Texas (2006) 

(charting halting progress towards integration from Sweatt through Ilopwood). As 

UT candidly concedes, it is “painfully aware” that “vestiges of de jure segregation” 

have persisted in the decades after this Court’s decision in Sweatt. UT S. Ct. Br. 4 

(citing SJA 14a and Sweatt, 339 U.S. 629); UT Supp. Br. 31.7

This history has a continuing corrosive impact on the way in which African-

American students and their families perceive the University today, as BSA and

BEST participants can attest. Accordingly, UT has a strong imperative “to go

beyond present achievements, however significant, and to recognize and confront

7 After the Supreme Court compelled UT Austin to open its law school to African 
Americans, change occurred slowly. Beginning in the 1970s, the federal 
government undertook a court-ordered investigation and found that Texas had 
failed to eliminate vestiges of its formerly segregated higher education system. See 
Hopwood, 861 F. Supp. at 555-57. To date, the federal government has yet to 
announce that Texas has satisfied its federal civil rights law obligations.

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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 concurring in the judgment).

CONCLUSION

For the reasons stated above, amici urge this Court to either reaffirm

summary judgment in favor of UT or remand for the District Court to address the

remaining open issues in the first instance.

Respectfully submitted,

By: /s/ Joshua Civin

NAACP LEGAL DEFENSE & 
EDUCATIONAL FUND, INC.

Sherri lyn I fill 
Director Counsel 

Christina Swarns 
Damon T. Hewitt 
40 Rector Street, 5th Floor 
New York, NY 10006

Joshua Civin
Counsel o f Record 

1444 I Street, NW, 10th Floor 
Washington, DC 20005 
(202)682-1300 
(202) 682-1312 (fax) 
jcivin@naacpldf.org

Fulbright & Jaworski LLP

Edward B. Adams, Jr.
Fulbright Tower

29

mailto:jcivin@naacpldf.org


Case: 09-50822 Document: 00512427869 Page: 37 Date Filed: 11/01/2013

November 1,2013

1301 McKinney, Suite 5100 
Houston, TX 77010-3095

Theodore Shaw
666 Fifth Avenue
New York, NY 10103-3198

Counsel for Amici

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Case: 09-50822 Document: 00512427869 Page: 38 Date Filed: 11/01/2013

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C), the undersigned certifies the 

following:

1. This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because this brief contains 6,943 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared in a proportionally spaced typeface in Microsoft Word 

2010 using Times New Roman font in the text and footnotes.

/s/ Joshua Civin 
Joshua Civin 
Counsel for Amici

Dated: November 1,2013

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Case: 09-50822 Document: 00512427869 Page: 39 Date Filed: 11/01/2013

CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of November, 2013, 1 caused a true and 

correct copy of the foregoing to be filed electronically with the Clerk of the Court 

on the ECF system and transmitted to counsel registered to receive electronic 

service. 1 also caused true and correct copies of the foregoing to be delivered via 

FedEx next business day delivery and email to the following counsel of record not 

registered to receive electronic service:

Vincent Adrian Eng
Asian American Justice Center
Suite 1200
1140 Connecticut Avenue, NW 
Washington, DC 20036 
veng@advancingequality.org

Lawrence J. Fox 
Drinker, Biddle & Rcath, LLP 
Suite 2000 
1 Logan Square 
Philadelphia, PA 19103-6996 
lawrence.fox@dbr.com

/s/ Joshua Civin 
Joshua Civin

32

mailto:veng@advancingequality.org
mailto:lawrence.fox@dbr.com