Amicus Curiae Brief — Fisher v. Univ. of Tex. At Austin, 135 S. Ct. 2888 (2015) (No. 14-981)

FILED

NOV 2- 2015

| OFFICE OF THE CLERIK

No. 14-981 oe

=e

In the Supreme Court of the United States

ABIGAIL NOEL FISHER, PETITIONER

UNIVERSITY OF TEXAS AT AUSTIN, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENTS

PAUL S. KOFFSKY

Acting Principal Deputy

General Counsel

Department of Defense

Washington, D.C. 20301

STEVAN E. BUNNELL

General Counsel

Department of Homeland

ecurity

Washington, D.C. 20528

JAMES COLE, JR.

General Counsel

Department of Education

Washington, D.C. 20202

WILLIAM B. SCHULTZ

General Counsel

oy of Health and

uman Services

Washington, D.C. 20201

KELLY R. WELSH

General Counsel

Department of Commerce

Washington, D.C. 20230

M. PATRICIA SMITH

Solicitor of Labor

Department of Labor

Washington, D.C. 20210

DONALD B. VERRILLI, JR.

Solicitor General

Counsel of Record

VANITA GUPTA

Principal Deputy Assistant

Attorney General

IAN HEATH GERSHENGORN

Deputy Solicitor General

GINGER D. ANDERS

Assistant to the Solicitor

General

DIANA K. FLYNN

TOVAH R. CALDERON

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@ usdo). gov

(202) 514-2217

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QUESTION PRESENTED

Whether the University of Texas at Austin’s use of

race as one of several diversity considerations in a

holistic analysis of individual applicants violates the

Equal Protection Clause of the Fourteenth Amend-

ment.

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TABLE OF CONTENTS

EE TE Te

Statement

EET Rea RS aT SE OTTO

Argument:

The United States has a critical interest in

ensuring that educational institutions are able

I.

Il.

to provide the educational benefits of diversity

A. The United States Armed Forces have a

strong interest in a well-qualified » d

diverse officer corps, and the educational!

benefits of diversity are critical to serving

I a icrscttacccitcerntcensccicctndiantesneunseneceneccesseces 10

B. Well-qualified and diverse graduates are

critical to other national interests....................... 14

The narrow-tailoring inquiry under Grutter

and Fisher examines whether a university's

consideration of race is tailored to its concretely

defined educational objectives .................:.cccecceseeeeeeees 16

A. Auniversity must concretely define its

educational objectives without identifying

REET SENS BO ee ee ee 18

3.

Grutter and Fisher defined sufficient

diversity as the point at which a univer-

sity attains the educational benefits of

i cetioisencienibiltiadsahinnsiteptninagpesnianiasegnenaniewerene i8

A university should define its educa-

tional objectives in concrete, measur-

I enithiniidsnetncaictiniatiindicinpmnanicacnsecereensss 19

B. Grutter and Fisher establish that strict

scrutiny examines whether the university's

consideration of race is narrowly tailored

to its qualitative educational goals....................... 21

(IIT)

IV

Table of Contents—Continued: Page

C. The strict scrutiny analysis contemplated

by Grutter and Fisher involves a rigorous

examination of a university’s conclusion that

it needs to consider race ...............:-scceeceeeseeeeeeseees 25

Ill. The University of Texas has established that

its consideration of race is narrowly tailored............. 26

A. The University clearly defined the educa-

tional benefits it seeKs ..................:ccccceseeeseeeeecereees 27

B. The University has established that it had

not attained sufficient diversity to fully

provide the educational benefits of diver-

I siehisenrecreinticnitainseisticisnenttensienesces 31

C. The University’s consideration of race direct-

NIT sinsitsintesetscnnpinssvenentnmninisnemionsinniti 34

Senne icersierecscssnssiheacieicitnlniesataiseenienintsnitnitiinsibieitensiiinsiataenpeciscdinniotinadiod 37

TABLE OF AUTHORITIES

Cases:

Fisher v. University of Tex. at Austin, 133 S. Ct.

ee ee acircnieninicnnssnscessemsesenscesismtasiineasinanncstiistemmnees passim

Gratz v. Bollinger, 539 U.S. 244 (2008) .00........cccccccccseeseeneeees 24

Grutter v. Bollinger, 539 U.S. 306 (2008) .................... passim

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

cert. denied, 518 U.S. 1033 (1996)................scscsessercsseesseseere 2

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.

ee 10, 19, 36

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)........ 8

Constitution and statutes:

U.S. Const. Amend. XIV (Equal Protection Clause)........ 1,4

Civil Rights Act of 1964, 42 U.S.C. 2000a et seq.:

a seliadisesiianieadinlaaiian l

Statutes—Continued: Page

Title VI, 42 U.S.C. 2000d ef seq. ...............csccssecesseeserees 1,4

ie 15

EE ae ET IT 4

Een none oe ra 4

House Bill 588, 1997 Tex. Gen. Laws 304, codified as

Tex. Educ. Code Ann. § 51.803 (West Supp. 1997)............ 2

Miscellaneous:

Adam Clymer, Service Academies Defend Use of

Race in Their Admissions Policies, N.Y. Times,

FARRER TSE: PERSE Re Oe 10

79 Fed. Reg. (Dec. 10, 2014):

Si Tania itehiridaiitainiehiacaeianceciiatiiaeiianint inn tiiiacaniiniged 15

RE PERE erent oe eee vee nee See 15

Gidget Fuentes, SEALs Reach Out to Increase Di-

versity, NavyTimes, Apr. 30, 2012, http://archive.

navytimes.con/article/20120430/N E WS/204300320/

SEAL-reach-out-to-increase-diversity................c.c:-0-e00- 12

Robert M. Gates, Lecture at Duke University

(Sept. 29, 2010), http://archive.defense.gov/

speeches/speech.aspx?Speech Id = 1508 ..0.............:ccccceeee 12

Josh Gerstein, Amid Race Talk, FBI Struggles to

Hire Black Agents, Politico, Feb. 13, 2015,

http://www. politico.com/story/2015/02/fbi-black-

on Sa 14

Lieutenant Gen. Michael C. Gould, Superintendent,

The United States Air Force Academy (USAF A)

Diversity and Inclusion Plan (2013), http://www.

usafa.af.mil/shared/media/document/AF D-140527-

Miscellaneous—Continued: Page

Letter from President George Washington to the

Commissioners of the District of Columbia (Jan. 28,

1795), in 34 The Writings of George Washington

(John C. Fitzpatrick ed., 1940) ..............-cccceccccsrseresceereeeeenees 8

Military Leadership Diversity Comm'n, Final Re-

port, From Representation to Inclusion: Diversity

Leadership for the 21st-Century Military (Mar. 15,

2011), http-//diversity.defense.gov/Portals/51/

Documents/Special%20Feature/MLDC Final

SE EEN ie 11, 12

Admiral Michael G. Mullen, Chairman, Joint Chiefs

of Staff, The National Military Strategy of the

United States of America (Feb. 8, 2011),

http://www.defense.gov/Portals/1/Documents/

pubs/2011-National-Military-Strategy.pdf ...................... 12

Bernard C. Nalty, Strength for the Fight:

A History of Black Americans in the Military

I TIT scsniscnsachiinisinlinienitinaiicindteadiiteensiiamevammninasnaneunes 11

Office for Civil Rights & Civil Liberties, U.S. Dep't

of Homeland Sec., MD-715 EEO Program Status

Report: FY 2009, http:/Awww.dhs.gov/xlibrary/

assets/crcl-fy2009-md715-report.pdf (last visited

a Nata sities taieniieihieebabehnieiuleinceaslepebdiiadinastaenesienince 15

Office of the Under Sec’y of Def. for Pers. & Readi-

ness, U.S. Dep’t of Def., Career Progression of Mi-

nority and Women Officers (1999), http://www.

quantico.marines.mil/Portals/147/Docs/Resources/

EOA/EO Career%20Progression%200f%20W omen

% 20and%20Minority%200fficers. pdf ..................2-...0000-- 14

U.S. Dep’t of the Air Force, Air Force Policy Di-

rective 36-70 (Oct. 13, 2010), http://Awww.af.

mil/Portals/1/documents/diversity/afpd-36-70-

REELS alee RRS EEC A Re 12

Vil

Miscellaneous—Continued: Page

U.S. Dep't of Def., Diversity and Inclusion Strategic

Plan: 2012-2017 (2012), http://diversity.defense.

gov/Portals/51/Documents/DoD_Diversity_

Strategic Plan_%20final_as%200f%2019%20

ee acaceianicnnnitininsdainsennsisnimanisninameiiimncesan 11,12

US. Dep’t of Homeland Sec., Diversity and Inclu-

sion Strategic Plan: Fiscal Years 2012-2015,

https://www.uscg.mil/diversity/docs/pdf/

DHS _DI Strategic Plan.pdf (last visited

A a icaestbiisaainceiaiitedsamlicoaisigiandidiiintaieetasinnccebeenseuveneees 15

U.S. Military Acad.: West Point, USMA

Strategic Plan 2015-2021 (Mar. 2015), http://www.

usma.edu/strategic/shared®%20documents/usma®

20strategic%20plan %202015. pdf .............cecceeceeseeeeeceeeeeeeees 13

In the Supreme Court of the Anited States

No. 14-981

ABIGAIL NOEL FISHER, PETITIONER

Vv.

UNIVERSITY OF TEXAS AT AUSTIN, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The United States has significant responsibilities

for the enforcement of the Equal Protection Clause of

the Fourteenth Amendment in the context of institu-

tions of higher learning, see 42 U.S.C. 2000c-6, and for

the enforcement of Title VI of the Civil Rights Act of

1964, 42 U.S.C. 2000d et seq., which prohibits discrim-

ination on the basis of race, color, or national origin by

recipients of federal funds, including institutions of

higher education. Numerous federal agencies have

concluded that well-qualified graduates from diverse

backgrounds are crucial to the fulfillment of their

missions. The United States thus has a strong inter-

est in the development of the law regarding the con-

sideration of race and ethnicity in admissions in high-

er education.

STATEMENT

1. The University of Texas at Austin (the Universi-

ty) is the flagship institution of Texas’s public univer-

(1)

2

sity system. Pet. App. 265a. The University is a se-

lective institution, and its admissions policy reflects

two decades of evolution and experimentation.

a. Until 1996, the University admitted under-

graduates by considering each applicant’s Academic

Index (Al)—a projection of freshman academic

performance—and race. Pet. App. 266a. In 1996, the

Fifth Circuit invalidated that policy. Hopwood v.

Texas, 78 F.3d 932, 934-935, cert. denied, 518 U.S.

1033 (1996).

Since 1997, the University has used a Personal

Achievement Index (PAI) to supplement the AI. The

PAI is a numerical score based on “a holistic review”

of applications, including essays, leadership, extracur-

ricular activities, work experience, socioeconomic

status, language spoken at home, and other similar

characteristics. Pet. App. 278a-280a.

Beginning with the entering class of 1998, the Uni-

versity implemented House Bill 588, also known as the

Top Ten Percent law (Top Ten plan). Pet. App. 269a;

1997 Tex. Gen. Laws 304, codified as Tex. Educ. Code

Ann. § 51.803 (West Supp. 1997). The Top Ten plan

grants public-university admission to Texas high

school graduates who are in the top ten percent of

their class. Pet. App. 269a. After admitting appli-

cants through the Top Ten plan, the University filled

the remainder of its entering class using its AI/PAI

analysis. /d. at 276a.

b. In 2003, this Court approved the University of

Michigan Law School’s consideration of race in admis-

sions. Grutter v. Bollinger, 5389 U.S. 306, 343. The

University subsequently concluded that considering

race in some individual admissions decisions was nec-

3

essary to achieve the educational benefits of diversity.

Pet. App. 270a-272a; S.J.A. la, 23a-24a.

In its Proposal to Consider Race and Ethnicity in

Admissions, S.J.A. la-39a, the University explained

that its educational mission includes “produc{ing]

graduates who are capable of fulfilling the future

leadership needs of Texas” and who are “able to lead a

multicultural workforce and to communicate policy to

a diverse electorate,” S.J.A. 24a. The University con-

cluded that a lack of diversity in the classroom, S.J.A.

24a-26a, rendered it “less able to provide an educa-

tional setting that fosters cross-racia] understanding.”

S.J.A. 25a. In addition, “significant differences be-

tween the racial and ethnic makeup” of the student

body and the State’s population meant that students

were “being educated in a less-than-realistic environ-

ment that is not conducive to training the leaders of

tomorrow.” S.J.A. 24a-25a.

ce. The University first used its current admissions

policy, which permits officers to consider individual

applicants’ race as one factor among many, in the

selection of the 2005 entering class. J.A. 482a-483a.

After admitting up to 75% of the entering class

through the Top Ten plan, Pet. App. 42a-43a, the

University evaluates remaining applicants based on

their AI and PAI scores. In calculating the PAI score,

in order to “establish{] a contextual background for

the student’s achievements,” officials may consider an

applicant’s race in addition to the factors adopted in

1997. S.J.A. 29a; J.A. 482a-484a. Race is not consid-

ered in isolation, given independent weight, or used as

a quota. S.J.A. 29a. Applicants whose Al/PAI scores

place them above a cut-off point are admitted. J.A.

461a-463a, 470a.

4

2. Petitioner, a white applicant denied admission to

the University in 2008, brought this action, alleging

that the University discriminated against her on the

basis of race in violation of the Fourteenth Amend-

ment and 42 U.S.C. 1981, 1983, and 2000d et seq. Pet.

App. 263a-264a.

The district court granted summary judgment to

respondents. Pet. App. 26la-317a. The court of ap-

peals affirmed. /d. at 147a-217a.

3. This Court granted certiorari, vacated the court

of appeals’ decision, and remanded for further pro-

ceedings. 133 S. Ct. at 2415. The Court did not dis-

turb Grutter’s holding that a university may consider

race in a manner that is narrowly tailored to achieving

a compelling interest in the educational benefits of

diversity. /d. at 2415, 2419-2420. The Court held,

however, that the court of appeals had erroneously

deferred to the University’s conclusions in evaluating

whether its admissions program was narrowly tai-

lored. /d. at 2420-2421. The Court remanded to per-

mit the court of appeals to assess the record “under a

correct analysis.” /d. at 2421.

4. On remand, the court of appeals held that the

University had demonstrated that its consideration of

race was necessary and narrowly tailored. Pet. App.

la-54a. The court concluded that the University had

established that considering race in its holistic admis-

sions process to fill the remaining portion of the class

was “necessary to target minorities with unique tal-

ents,” id. at 48a, and to counter a “decreasing degree

of minority classroom dispersion,” id. at 50a. The

court also held that the University’s consideration of

race was narrowly tailored because it treated appli-

cants as individuals, id. at 47a-48a, and the University

5

had exhausted workable race-neutral alternatives, id.

at 25a-29a.

Judge Garza dissented. Pet. App. 57a-90a. He

would have held that the University’s plan failed strict

scrutiny because it was “impossible to determine

whether the University’s use of racial classifications

* * * is narrowly tailored to its stated goal.” /d. at

57a. In his view, the University had failed to define its

goal of enrolling a “critical mass” of minority students

in “any objective manner.” /bid.

SUMMARY OF ARGUMENT

I. This Court has held that attaining “the educa-

tional benefits that flow from student body diversity”

is a compelling interest that may justify a university's

consideration of race in its admissions process. Fisher

v. University of Tex. at Austin, 133 S. Ct. 2411, 2419

(2013) (citation omitted); Grutter v. Bollinger, 539

U.S. 306, 328, 330 (2003). The educational benefits of

diversity identified in Grutter and Fisher are of criti-

cal importance to the United States. The government

has a vital interest in drawing its personnel—many of

whom will eventually become its civilian and military

leaders—from a well-qualified and diverse pool of

university and service academy graduates. In particu-

lar, the Department of Defense (DoD) has concluded

that a broadly diverse officer corps trained in a di-

verse environment is essential to military readiness.

It is therefore imperative that officer training pro-

grams run by DoD and the Department of Homeland

Security (DHS)—including service academies and

Reserve Officers’ Training Corps (ROTC) programs

located at civilian institutions such as the University—

produce racially diverse graduates who are prepared

to lead a multiracial force.

6

II. In Fisher, this Court clarified that a reviewing

court must closely scrutinize a race-conscious admis-

sions plan to ensure that it is necessary and narrowly

tailored to achieve the university’s compelling interest

in the educational benefits of diversity. 133 S. Ct. at

2419-2420. Petitioner contends that the requisite rig-

orous scrutiny is impossible unless a university identi-

fies the number or percentage of minority students

that its admissions plan is designed to reach. That

argument is misconceived. Grutter and Fisher estab-

lish that the university’s compelling interest is in

creating an educational environment that affords the

educational benefits of diversity. That objective, not

any preordained demographic target, serves as the

benchmark against which the university’s means are

measured.

A university must, however, explain its educational

objectives with clarity in order to permit the review-

ing court to meaningfully perform the tailoring analy-

sis. Fisher, 133 S. Ct. at 2418. The university should

describe the educational benefits of diversity it views

as critical to its institutional mission. It should then

explain in concrete, measurable terms what achieve-

ment of those objectives entails. For example, a uni-

versity that seeks increased cross-racial interaction

might define success as the point at which a certain

percentage of seniors report that they have had op-

portunities to interact with students of other races in

their classes and activities. Under Fisher, the univer-

sity’s explanation of its objectives is entitled to “some,

but not complete, judicial deference,” so long as the

university has provided “a reasoned, principled expla-

nation for the academic decision.” /d. at 2419.

7

Once the university has defined its educational ob-

jectives, the court will be able to rigorously review

whether the university’s consideration of race is nec-

essary and tailored to those goals. In performing that

analysis, the court should require concrete evidence

demonstrating that increasing diversity is necessary

to permit the university to reach its educational goals,

that race-neutral alternatives either do not achieve

the benefits of diversity or do so only at the cost of

sacrificing other critical educational objectives, and

that the admissions plan promotes the university’s

goals while safeguarding individualized consideration.

Conducted in this manner, the narrow-tailoring analy-

sis will be both searching and consistent with the

compelling interest recognized in Grutter and Fisher.

III. The University’s admissions program is con-

stitutional. The University defined its educational ob-

jectives with clarity, explaining that it sought to im-

prove opportunities for cross-racial interaction, par-

ticularly in the classroom, in order to fulfill its mission

of training the next generation of Texas leaders. The

University also identified an interest in admitting

minority students who had distinguished themselves

academically in ways not captured by class rank or

who had demonstrated non-academic achievements

and leadership abilities.

The University’s admissions program is narrowly

tailored to achieve the University’s compelling inter-

est. The University demonstrated that it had not

achieved the educational benefits of diversity in 2004

and 2008: classroom diversity had decreased despite

the institution of the Top Ten plan; African-American

enrollment had stagnated; and university officials

reported that a majority of undergraduates believed

8

that there was no diversity in the classroom, and that

minority students felt isolated in the classroom. The

University’s limited consideration of race in its holistic

admissions analysis to fill out the last portion of the

class is also designed to safeguard individualized con-

sideration while enabling the University to construct a

class that is diverse in all ways valued by the institu-

tion.

ARGUMENT

I. THE UNITED STATES HAS A CRITICAL INTEREST IN

ENSURING THAT EDUCATIONAL INSTITUTIONS ARE

ABLE TO PROVIDE THE EDUCATIONAL BENEFITS

OF DIVERSITY

Over two hundred years ago, George Washington

recognized the importance to the Nation of a universi-

ty education that would “qualify our citizens for the

exigencies of public, as well as private life * * * by

assembling the youth from the different parts of this

rising republic, contributing from their intercourse,

and interchange of information, to the removal of pre-

judices which might perhaps, sometimes arise, from

local circumstances.” Letter from President George

Washington to the Commissioners of the District of

Columbia (Jan. 28, 1795), in 34 The Writings of

George Washington 106-107 (John C. Fitzpatrick ed.,

1940).

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

Court reaffirmed the continuing vitality in our day of

President Washington’s common-sense insight, ex-

plaining that “the [Nlation’s future depends upon

leaders trained through wide exposure to the ideas

and mores of students as diverse as this Nation of

many peoples.” /d. at 324 (quoting Regents of Univ.

of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (opinion of

9

Powell, J.) (citation and internal quotation marks

omitted). As the Court recognized, “[{jjust as growing

up in a particular region * * * is likely to affect an

individual’s views, so too is one’s own, unique experi-

ence of being a racial minority in a society, like our

own, in which race unfortunately still matters.” /d. at

333.

In Grutter, the Court held that a university may

conclude that the educational benefits of all types of

diversity, including racial and ethnic diversity, are

“essential to its educational mission.” 539 U.S. at 328.

Those benefits include “better prepar[ing] students

for an increasingly diverse workforce and society,”

“promot{ing] ‘cross-racial understanding,’” id. at 330

(citations omitted), and ensuring that “the path to

leadership [is] visibly open to talented and qualified

individuals of every race and ethnicity,” id. at 332.

And in Fisher v. University of Texas at Austin, 133 S.

Ct. 2411 (2013), the Court left undisturbed Grutter’s

ultimate holding that obtaining “the educational bene-

fits that flow from student body diversity” is a compel-

ling interest that may support a university’s narrowly

tailored consideration of race in its admissions pro-

cess. /d. at 2419 (quoting Grutter, 539 U.S. at 330).

The United States has a vital interest in ensuring

that our Nation’s universities maintain campus envi-

ronments in which young adults from all segments of

American society can develop—through exposure to

people from a multitude of backgrounds, perspectives

and experiences—a capacity to appreciate their fellow

citizens as individuals, not as representatives of a

particular group, and to forge relationships and pur-

sue shared goals that transcend stereotypes and prej-

udice. Fostering the development of such a capacity is

10

essential to producing graduates who will be effective

citizens and leaders in an increasingly diverse Nation,

and effective competitors in diverse global markets,

and ultimately it is essential to the preservation of our

unique national strength that “comes from people of

different races, crceds, and cultures uniting in com-

mitment to the freedom of all.” Parents Involved in

Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

782 (2007) (Kennedy, J., concurring in part and con-

curring in the judgment). And the United States has a

particular interest in ensuring that it is able to draw

its military and civilian personnel—many of whom will

bevome our future leaders—from a pool of graduates

who have developed this capacity.

A. The United States Armed Forces Have A Strong Inter-

est In A Well-Qualified And Diverse Officer Corps,

And The Educational Benefits Of Diversity Are Criti-

cal To Serving That Interest

The United States Armed Forces have concluded

that it is critical to the Nation’s military strength and

readiness to maintain a pipeline of military officers

who are highly qualified and racially diverse—and

who have been trained to succeed in a diverse envi-

ronment. The military service academies have at

various times concluded, based on their assessment of

their applicant pools and educational needs, that “lim-

ited race-conscious recruiting and admissions policies”

are necessary to their mission of training future mili-

tary leaders. Grutter, 539 U.S. at 331 (citation omit-

ted); see Adam Clymer, Service Academies Defend

Use of Race in Their Admissions Policies, N.Y.

Times, Jan. 28, 2003, at A17. The United States there-

fore has a strong interest in ensuring that the service

academies, as well as the universities that host ROTC

11

programs, retain the flexibility to consider race in the

holistic manner contemplated by Grutter and Fisher.

1. The armed services have long recognized that

building a cohesive military force that is both highly

qualified and broadly diverse—including in its racial

and ethnic composition—is a “strategic imperative,

critical to mission readiness and accomplishment, and

a leadership requirement.” DoD, Diversity and /n-

clusion Strategic Plan: 2012-2017, at 3 (2012) (Strate-

gic Plan). As both the enlisted ranks of the military

and the Nation’s population have become increasingly

diverse, our military leaders have concluded that an

officer corps that is markedly less diverse than the

enlisted ranks, and that is unattuned to the perspec-

tives and experiences of those they must lead, can

undermine combat readiness. Maintaining a pipeline

of well-prepared and diverse officer candidates is

therefore an urgent military priority.

That military policy judgment reflects the hard les-

sons of battlefield experience. During the Vietnam

War, for example, the disparity between the over-

whelmingly white officer corps and the highly diverse

enlisted ranks “threatened the integrity and perfor-

mance” of the military. Military Leadership Diversity

Comm'n, Final Report, From Representation to In-

clusion: Diversity Leadership for the 21st-Century

Military xvi (Mar. 15, 2011) (MLDC Report). Officers

often failed to perceive racial tensions among enlisted

personnel that threatened combat readiness. Bernard

C. Nalty, Strength for the Fight: A History of Black

Americans in the Military 303-317 (Free Press 1986).

The absence of diversity in the officer corps also un-

dermined the military’s legitimacy by fueling “popular

perceptions of racial/ethnic minorities serving as ‘can-

12

non fodder’ for white military leaders.” MLDC Re-

port 15.

In view of that history, our military leaders have

concluded that an officer corps that shares the diversi-

ty of the enlisted ranks improves performance by

“facilitat(ing] greater confidence” in leadership and

assuring that all officers are trained to lead a diverse

force. MLDC Report 44; U.S. Dep’t of the Air Force,

Air Force Policy Directive 36-70 (Oct. 13, 2010). A

military officer corps that is reflective of the general

population that it has sworn to defend fosters civilian

trust. Robert M. Gates, Lecture at Duke University

(Sept. 29, 2010); MLDC Report 44. Maintaining a

diverse leadership corps also ensures that the military

contains the “cultural and racial identities” necessary

“to better understand [its] partner forces.” Gidget

Fuentes, SEALs Reach Out to Increase Diversity,

NavyTimes, Apr. 30, 2012; MLDC Report 17.

The military thus has a powerful interest in devel-

oping an officer corps that is prepared to lead a di-

verse force and that shares the diversity of the enlist-

ed ranks and the general population. Strategic Plan

3-4; Admiral Michael G. Mullen, Chairman, Joint

Chiefs of Staff, The National Military Strategy of the

United States of America 16-17 (Feb. 8, 2011). De-

spite progress toward that objective, minorities re-

main “underrepresented among the Armed Forces’

top leadership, compared with the servicemembers

they lead.” MLDC Report xiii.

2. Because the military does not hire its officer

corps laterally, as a corporation might, MLDC Report

xvi, the military’s future leadership will necessarily be

drawn from those who join the military today. That is

why the services have concluded that fostering

13

student-body diversity is vital to the ability of the

service academies and ROTC programs to provide a

rigorous education for all students and prepare cadets

for leadership roles.

For instance, the United States Air Force Academy

has concluded that the highest quality military

education comes from “exposing [cadets] to a broad

range of ideas and experiences in both a formal

classroom setting and in informal interactions with

individuals whose background and experience offer

dissimilar perspectives.” Lieutenant Gen. Michael C.

Gould, Superintendent, The United States Air Force

Academy (USAFA) Diversity and Inclusion Plan 4

(2013). The USAFA’s leadership training program is

“best realized when the cadet cadre itself is widely

diverse” so that cadets can “learn to bring out the best

in each individual regardless of his or her back-

ground.” /d. at 6; see U.S. Military Acad. (USMA):

West Point, USMA Strategic Plan 2015-2021, at 25

(Mar. 2015) (when class composition “reflects the

population of the Army and the Nation,” cadets learn

“sociocultural competencies essential to multicultural

leadership in the 2lst century”). To achieve their

compelling interest in the educational benefits of

diversity, service academies have at various times

concluded, based on their educational needs, that it is

necessary to consider race—along with other types of

diversity—in evaluating individual applicants for

admission. See p. 10, supra. If and when outreach

and recruiting measures fall short, the academies

need the flexibility to be able to consider race as one

factor in a holistic review of each applicant in making

admissions decisions.

14

ROTC programs, which provide military leadership

training to undergraduates and are the single largest

source of new officers, can best achieve their goals

when their participating institutions are diverse. In

particular, selective universities that admit the most

talented students with leadership potential and pro-

vide opportunities for cross-racial interaction and

other educational benefits of diversity are a critical

source of future officers. DoD has found that minority

officers who enter the military from “more selective

colleges” have “significantly higher performance rat-

ings” than similarly situated officers from less selec-

tive colleges. Office of the Under Sec’y of Def. for

Pers. & Readiness, DoD, Career Progression of Mi-

nority and Women Officers 62 (1999). The military

relies on the University and other schools with ROTC

detachments to ensure that their student bodies are

highly qualified, diverse, and trained to succeed in a

diverse setting—by considering race in individualized

admissions decisions, if necessary. See Grutter, 539

U.S. at 331.

B. Well-Qualified And Diverse Graduates Are Critical To

Other National Interests

Numerous federal agencies have likewise conclud-

ed that well-qualified and diverse graduates are cru-

cial to the fulfillment of their missions.

A pipeline of highly qualified, diverse graduates is

critical, for example, to the Nation’s law-enforcement

and national-security needs. As Federal Bureau of

Investigation Director James Comey has stated, “[ilt

is imperative for all of us in law enforcement to try to

reflect the communities we serve.” Josh Gerstein,

Amid Race Talk, FBI Struggles to Hire Black Agents,

Politico, Feb. 13, 2015. Similarly, DHS requires a

15

“workforce with diverse backgrounds, experiences,

and competencies” in order to “optimize{] DHS'’s ef-

fectiveness in serving a heterogeneous public and

coordinating with international partners to secure the

homeland.” Office for Civil Rights & Civil Liberties,

DHS, MD-715 EEO Program Status Report: FY

2009, at 7; accord DHS, Diversity and Inclusion Stra-

tegic Plan: Fiscal Years 2012-2015, at 2.

The Department of Health and Human Services

has made it a priority to foster diversity among un-

dergraduates who major in health-care-related fields.

Developing a national workforce of practitioners and

researchers who are prepared to address minority

health issues, and who also have diverse backgrounds,

will help address concerns that minorities remain less

likely to have access to quality health care. See, e.g.,

42 U.S.C. 293(a).

Other agencies also have concluded that well-

qualified, diverse graduates are essential to their

missions. The Department of Education, whose mis-

sion includes fostering educational excellence and

promoting diversity in post-secondary institutions,

encourages grant applicants to develop projects that

are designed to “increase racial, ethnic, and socioeco-

nomic diversity.” 79 Fed. Reg. 73,444 (Dec. 10, 2014);

see id. at 73,452. The Department of Commerce has

an interest in promoting equal educational and eco-

nomic opportunities and diversity among the leaders

of commercial enterprises. The Department of Labor

has an interest in ensuring that workforce leaders are

well prepared to lead a diverse workforce.

16

Il. THE NARROW-TAILORING INQUIRY UNDER

GRUTTER AND FISHER EXAMINES WHETHER A

UNIVERSITY'S CONSIDERATION OF RACE IS TAI-

LORED TO ITS CONCRETELY DEFINED EDUCA-

TIONAL OBJECTIVES

In Fisher, this Court did not disturb Grutter’s

holding that obtaining “the educational benefits that

flow from student body diversity” is a compelling

interest that may support a university’s consideration

of race in its admissions process. 133 8S. Ct. at 2419

(quoting Grutter, 539 U.S. at 330). The Court likewise

left in place Grutter’s holding that a court should

accord “some, but not complete, judicial deference” to

a university’s “academic judgment” that the educa-

tional benefits of diversity are essential to its mission.

Tbid.; see Grutter, 539 U.S. at 328.

The Fisher Court then clarified the narrow tailor-

ing aspect of strict scrutiny. The Court explained that

a university “must prove that the means chosen * * *

to attain diversity are narrowly tailored” to its objec-

tives, and that it “receives no deference” with respect

to that ultimate question. 133 S. Ct. at 2420. To es-

tablish that its program is narrowly tailored, a univer-

sity must demonstrate that its admissions process

evaluates each applicant “as an individual and not in a

way that makes” race “the defining feature” of the

application. /bid. (citation omitted). The university

must also establish that considering race is “‘neces-

sary * * * to achieve the educational benefits of

diversity.” /bid. (citation omitted). That analysis, the

Court stated, “involves a careful judicial inquiry into

whether a university could achieve sufficient diversity

without using racial classifications.” J/bid. At the

same time, “a court can take account of a university’s

17

experience and expertise in adopting or rejecting

certain admissions processes.” /bid.

Petitioner contends (Br. 25-28) that the University

has failed to define its educational objectives with

enough precision to permit a court to determine

whether the University’s consideration of race is nar-

rowly tailored. In petitioner’s view (Br. 27, 28, 45-46),

a university must identify, in advance and in the ab-

stract, the level of minority representation—a “specif-

ic” demographic “goal”—that would be sufficient to

attain the educational benefits of diversity. That

argument rests on a misreading of Grutter and Fish-

er. Those decisions establish that attainment of the

educational benefits of diversity, not any fixed demo-

graphic target, should serve as the benchmark against

which the university's means are measured.

That does not preclude a rigorous narrow-tailoring

inquiry. To the contrary, a university must clearly

explain its objectives, Fisher, 133 S. Ct. at 2418, in-

cluding by setting forth the concrete circumstances

that will constitute achievement of the educational

benefits of diversity. The court will then be able rig-

orously to review whether the university’s considera-

tion of race is necessary and tailored to its objectives.

In performing that analysis, the court should require

the university to produce concrete evidence demon-

strating that current demographic levels are insuffi-

cient to permit the university to reach its educational

goals and that workable race-neutral alternatives will

not suffice. Conducted in this manner, the narrow-

tailoring analysis will be both searching and con-

sistent with the compelling interest recognized in

Grutter and Fisher.

18

A. A University Must Concretely Define Its Educational

Objectives Without Identifying A Demographic Goal

I. Grutter and Fisher defined sufficient diversity as

the point at which a university attains the educa-

tional benefits of diversity

In Grutter, the Court upheld the University of

Michigan Law School’s admissions plan, which was

designed to obtain a “critical mass” of minority stu-

dents. 539 U.S. at 329 (citation omitted). The Law

Schoo! used the phrase “critical mass” as shorthand to

describe a student body that would produce the educa-

tional benefits of diversity. /d. at 329-330. In uphold-

ing the program, the Court emphasized that the Law

School did not define “critical mass” as “some speci-

fied percentage of a particular [racial] group”; rather,

the “concept of critical mass is defined by reference to

the educational benefits that diversity is designed to

produce.” Jbid. The Court in Fisher similarly ob-

served that a university may consider race in admis-

sions in order to assemble a sufficiently “diverse stu-

dent body,” 133 S. Ct. at 2419, “to obtain the educa-

tional benefits of diversity,” id. at 2421.

Grutter and Fisher thus make clear that attaining

the educational benefits of diversity is the compelling

interest that may justify considering race in admis-

sions, and racial and ethnic diversity within the stu-

dent body is a means to that end. Sufficient diversity

cannot be defined in advance with mathematical preci-

sion, but is instead attainment of the qualitative and

quantitative diversity that allows the university to

achieve its educational objectives—objectives that will

necessarily vary depending upon the university’s par-

ticular circumstances. See Grutter, 539 U.S. at 318,

330; contra Pet. Br. 27-28, 30, 43.

19

Accordingly, Grutter and Fisher held that a univer-

sity may not implement a target level of diversity

divorced from the university’s educational objectives,

and petitioner is therefore incorrect in contending

that the “clarity” required by Fisher requires a uni-

versity to identify a “‘demographic’ goal.” Pet. Br. 27-

28 (citing Fisher, 133 S. Ct. at 2418); Pet. App. 67a

(Garza, J., dissenting). There is no reason to assume

that “the level of racial diversity necessary to achieve

the asserted educational benefits happens to coincide”

with predetermined target levels of diversity. See

Parents Involved, 551 U.S. at 727 (opinion of Roberts,

C.J.); accord id. at 797-798 (Kennedy, J., concurring in

part and concurring in the judgment). To the contra-

ry, identifying a demographic target as petitioner

maintains is required would raise concerns that the

target would function as an unconstitutional quota.

See Fisher, 133 S. Ct. at 2419; Grutter, 539 U.S. at 389

(Kennedy, J., dissenting). Instead, a university can

explain its objectives with the requisite clarity by

describing the specific benefits of diversity it seeks

and identifying in concrete, measurable terms what it

views as attainment of the educational benefits of

diversity.

2. A university should define its educational objec-

tives in concrete, measurable terms

Under Grutter and Fisher, then, a university must

define its objectives in terms of the educati nal expe-

rience it seeks to provide, not the means—increasing

diversity levels—to that end.

First, the university should describe what educa-

tional benefits of diversity it views as critical to its

institutional mission and how it weighs diversity in

relation to its other institutional goals. The university

20

should explain why certain benefits of diversity (e.g.,

cross-racial interaction, decreased racial] isolation) are

important to its institutional mission, as well as the

types of diversity it seeks.

Second, the university should explain with clarity

what attainment of the educational benefits of diversi-

ty entails—in other words, how the university will

measure success. For instance, a university that

seeks to provide opportunities for cross-racial interac-

tion in all aspects of campus life might define success

as the point at which a certain percentage of graduat-

ing seniors report that, in their years on campus, they

have had meaningful interactions with students of

other races in classes and activities, and faculty mem-

bers confirm those accounts. A university focusing on

providing visible pathways to leadership, Grutter, 539

U.S. at 332, might define success as increasing minori-

ty retention and graduation rates and minority partic-

ipation in academic and extracurricular leadership

activities. A university whose educational objective

involves ameliorating pre-existing racial tension and

isolation on campus might explain that it will consider

its goal met when several years have passed with no

racial incidents on campus and a majority of minority

students report that they do not feel like spokesper-

sons for their race. See id. at 319-320.

In reviewing the university’s explanation of its ob-

jectives, the court should accord the university “some,

but not complete, judicial deference.” Fisher, 133 S.

Ct. at 2419. That is because a university’s conclusion

that the benefits of aiversity are “integral to its mis-

sion” reflects its “academic judgment.” /bid. A uni-

versity’s definition of the attainment of those benefits

is similarly an exercise of educational judgment and

21

expertise, to which some deference is appropriate.

Judicial review of the university’s explanation of its

objectives therefore focuses on whether the university

has provided “a reasoned, principled explanation for

the academic decision.” /bid. In addition, the review-

ing court should be satisfied that the university has

defined its compelling interest in the educational ben-

efits of diversity with “clarity,” so that the court is

able to understand the educational environment the

university seeks. /d. at 2418.

B. Grutter And Fisher Establish That Strict Scrutiny Ex-

amines Whether The University’s Consideration Of

Race Is Narrowly Tailored To Its Qualitative Educa-

tional Goals

While a reviewing court may accord deference to “a

university's definition of its educational objective,” it

may not defer to the university’s “implementation of

this goal.” Grutter, 539 U.S. at 388 (Kennedy, J.,

dissenting); accord Fisher, 133 S. Ct. at 2420. The

narrow-tailoring analysis therefore entails a rigorous

examination of the university's admissions program.

To establish that its admissions program is narrowly

tailored, a university must demonstrate based on

concrete evidence that (1) it needs to increase diversi-

ty to attain its educational! objectives; (2) race-neutral

alternatives will not suffice; (3) its program assesses

each candidate as an individual with a goal of broad

diversity, not just racial diversity; and (4) the program

is limited in time. Those requirements, taken togeth-

er, provide the “essential safeguard” that this Court’s

decisions require. Grutter, 539 U.S. at 388 (Kennedy,

J., dissenting).

1. The university’s showing of necessity focuses on

the current quality of the university’s educational

22

environment. The university must demonstrate that

despite employing workable race-neutral alternatives,

it is currently unable to provide the educational bene-

fits of diversity without considering race. Fisher, 133

S. Ct. at 2420.

The university must provide concrete evidence

documenting the ways in which its educational envi-

ronment has not yet reached the point the university

defines as success. The university may choose the

metrics by which to evaluate its educational environ-

ment based on relevance to its objectives and its un-

derstanding of the campus environment. For in-

stance, a university seeking cross-racial interaction

might examine data that indicate that a substantial

percentage of students graduate without taking clas-

ses that include minority students. A university may

also look to minority students’ accounts that they are

isolated in the classroom, or faculty accounts of the

quality of student discussions.

The university must also satisfy the court that

improving diversity levels is necessary to enable the

university to reach its educational objectives. Demo-

graphic data will thus necessarily be part of the

analysis—but it is relevant for its effect on the

university's ability to provide the educational benefits

of diversity, not (as petitioner contends, Br. 27-28) for

its own sake. For instance, a university might con-

clude that, as in Grutter, particularly low minority

representation in the student body supports an infer-

ence that the minority population is simply too small

to ensure that minority students do not feel like

spokespersons for their race. 539 U.S. at 319-320.

The reviewing court should carefully scrutinize the

university’s explanation of why, despite the current

23

diversity levels, the university has not yet attained the

educational benefits it seeks. Because the analysis

focuses on the impact of diversity on the educational

experience, a court should not assume that a universi-

ty has achieved the educational benefits of diversity

simply because its diversity levels appear substantial

in the abstract. But as a minority group’s representa-

tion increases substantially, the university will have

more difficulty demonstrating that the educational

benefits of diversity derived from that group’s pres-

ence on campus are still lacking, or that race-neutral

methods have been unsuccessful.

2. The university must also demonstrate that “no

workable race-neutral alternatives would produce the

educational benefits of diversity.” Fisher, 133 S. Ct.

at 2420. The university must show that the race-

neutral measures it has employed have not enabled it

to achieve its educational goals, and that alternatives

it did not employ were not workable, because, for

example, they would have achieved diversity only by

compromising other important educational objectives.

Ibid. In considering workability and the impact of

alternative proposals on the full range of educational

objectives, the court should “take account of a univer-

sity’s experience and expertise.” /bid.

3. The qualitative nature of the university’s com-

pelling interest also determines the substance of the

university’s demonstration of a close “fit” between its

objectives and its consideration of race. Because the

objective approved in Grutter is an educational envi-

ronment achieved when students are diverse in all

respects, not simply race and ethnicity, an admissions

program must “ensure that each applicant is evaluat-

ed as an individual and not in a way that makes an

24

applicant's race or ethnicity the defining feature of his

or her application.” Fisher, 133 S. Ct. at 2418 (quot-

ing Grutter, 539 U.S. at 334, 337). Such a program

also avoids imposing an undue burden on unsuccessful

applicants.

Grutter and Fisher thus refute the argument of

Judge Garza, dissenting below (Pet. App. 80a), that a

university must establish that “race was in fact deci-

sive” for particular applicants in order to demonstrate

that its consideration of race furthers its goals. Be-

cause this Court requires a university to consider the

totality of an applicant’s characteristics without mak-

ing race the predominant consideration, Grutter, 539

U.S. at 334, 337, it would be impossible to say for any

particular applicant that race was determinative—just

as it would be impossible to say that musical talent

was alone determinative. It would also be impossible

for a university to establish that its consideration of

race has resulted in the admission of particular num-

bers of minorities—indeed, a university's ability to

make that causal connection would be a strong sign

that it had improperly given race predominant im-

portance. See Gratz v. Bollinger, 539 U.S. 244, 272

(2003).

Grutter and Fisher therefore accept that an admis-

sions plan that considers race as one factor among

many valued characteristics will generally promote

the university’s efforts to increase diversity—even

though the individualized nature of the plan prevents

its effects from being precisely quantifiable. Grutter,

539 U.S. at 337; see Fisher, 133 S. Ct. at 2420. The

university may therefore establish the requisite fit by

showing that its admissions program is designed to

admit students who are diverse in the ways the uni-

25

versity values and that it preserves individualized

consideration. See ibid.

4. Finally, a university must demonstrate that its

admissions policy is “limited in time.” Fisher, 133 S.

Ct. at 2421; Grutter, 5389 U.S. at 342. Fisher left in

place Grutter’s holding that “the durational require-

ment can be met by sunset provisions * * * and

periodic reviews to determine whether racial prefer-

ences are still necessary to achieve student body di-

versity.” Grutter, 539 U.S. at 342; see Fisher, 133 S.

Ct. at 2421.

Permitting the university to use a periodic evalua-

tion to satisfy Grutter’s durational requirement does

not, as Judge Garza asserted, “delegate wholesale to

state actors the task of determining” whether consid-

ering race remains necessary. Pet. App. 82a. The

reviewing court should disapprove periodic-evaluation

plans that lack clarity concerning the university’s

objectives and how it will assess their attainment. See

pp. 19-21, supra. And in all events, a university’s

periodic reviews do not insulate it from the possibility

of subsequent suits, if the university continues to

consider race after it has become unnecessary.

C. The Strict Scrutiny Analysis Contemplated By Grutter

And Fisher Involves A Rigorous Examination Of A

University’s Conclusion That It Needs To Consider

Race

The narrow-tailoring analysis requires a university

to explain its educational goals clearly and concretely,

and to demonstrate that considering race is necessary

to permit the univers’_y to fulfill its compelling educa-

tional interest.

Fisher expressly contemplates that in reviewing a

university’s showing, the court may accord “some, but

26

not complete, judicial deference” to a university’s

“experience and expertise” with respect to certain

questions involving educational judgments: a univer-

sity’s decision to pursue particular educational bene-

fits of diversity, and its judgment that particular race-

neutral alternatives would unacceptably compromise

other educational objectives. 133 S. Ct. at 2419-2420.

That logic applies equally to aspects of the narrow

tailoring analysis that similarly involve educational

judgments, such as a university’s decision about how

to define attainment of the educational benefits of

diversity, see pp. 19-21, supra, and its decision that

particular tools are best suited to measure its current

educational environment. The reviewing court there-

fore need not second-guess educational judgments

that undergird the university’s decision to focus on

certain aspects of its educational environment.

The court should, however, closely scrutinize the

university’s ultimate conclusion that it needs to con-

sider race. The court should require concrete evi-

dence that existing levels of diversity are insufficient

to achieve the educational benefits of diversity and

that workable race-neutral methods will not suffice.

Ultimately, the reviewing court must be satisfied,

after a searching analysis of the whole record, that the

university’s conclusions are well supported by con-

crete evidence.

Ill. THE UNIVERSITY OF TEXAS HAS ESTABLISHED

THAT ITS CONSIDERATION OF RACE IS NARROW-

LY TAILORED

The University’s admissions program is constitu-

tional because the University has demonstrated that

its consideration of race is narrowly tailored and nec-

27

essary to achieve its educational objectives as Texas’s

flagship university.

A. The University Clearly Defined The Educational Ben-

efits It Seeks

1. The University concluded that its educational

mission is to provide a “comprehensive college educa-

tion,” S.J.A. 23a, and “to produce graduates who are

capable of fulfilling the future leadership needs of

Texas,” S.J.A. 24a. Particularly given that Texas will

soon “have no majority race,” its leaders “must not

only be drawn from a diverse population but must also

be able to lead a multicultural workforce and to com-

municate policy to a diverse electorate.” Jbid. The

University therefore sought a diverse student body in

order to provide ample opportunities for cross-racial

interaction in all aspects of campus life, and in par-

ticular, in the classroom. Grutter, 539 U.S. at 331-332.

Those determinations about which benefits of di-

versity are particularly important to the University

are precisely the sort of “complex educational judg-

ments” that fall within the core of the University’s

expertise. Grutter, 539 U.S. at 328. As this Court

held in Fisher, therefore, the lower courts “were cor-

rect” in according deference to the “University’s con-

clusion * * * that a diverse student body would

serve its educational goals.” 133 S. Ct. at 2419.

2. In evaluating its ability to provide the educa-

tional benefits of diversity, the University emphasized

that two related benefits—increasing cross-racial

interaction in the classroom and training students to

succeed in a diverse environment—were particularly

central to its educational mission. S.J.A. 23a-25a. The

University accordingly examined two metrics—

classroom diversity and demographic disparities—

28

that it concluded were relevant to its ability to provide

those benefits of diversity. /bid. Contrary to peti-

tioner’s argument (Br. 43-45), the University ade-

quately defined the improvements it sought in both

metrics and established that its goals are consistent

with Grutter and Fisher.

a. The University explained that it viewed the op-

portunity for cross-racial interaction in the classroom

as particularly important to producing future leaders

prepared to succeed in diverse professional environ-

ments. S.J.A. 24a. That conclusion reflects the Uni-

versity’s educational judgment about the most benefi-

cial means of student interaction—a judgment that

Grutter expressly approved. 539 U.S. at 330.

The University used its classroom diversity study

as one means of measuring cross-racial interaction in

the small classes that are most likely to foster discus-

sion and student interactions. S.J.A. 24a-25a, 69a;

J.A. 316a-317a. The University explained that “suc-

cess|]” on the classroom-diversity front meant avoid-

ing having “large numbers of classes in which there

are no students—or only a single student—of a given

underrepresented race or ethnicity.” S.J.A. 25a. In

other words, the University sought to ensure that all

students, as they take various classes during their

years at the University, will have the opportunity for

classroom interaction with students of other races.

The University accordingly stated that it would meas-

ure success by evaluating the experiences students

reported in the classroom, rather than by looking for a

predetermined numerical diversity level. See J.A.

317a-318a.

Petitioner is therefore wrong in asserting (Br. 45)

that the University sought to ensure that every small

29

class has some minimum number of minority students.

The district court found that the University had no

such goal in mind, Pet. App. 303a, and petitioner

points to no evidence to the contrary.

b. The University looked to the demographics of

the statewide population to assess whether it was

fulfilling its interests in “prepar[ing) students for an

increasingly diverse workforce and society,” Grutter,

539 U.S. at 330 (citation omitted), and being “visibly

open to talented and qualified individuals of every

race and ethnicity,” id. at 332; S.J.A. la. To be sure, a

university seeking to justify considering race in ad-

missions may not use statewide demographics as a

benchmark to set a numerical goal for admissions.

Fisher, 133 S. Ct. at 2419. But Grutter’s recognition

that “prepar[ing] students for an increasingly diverse

workforce and society” is a benefit of diversity, 539

U.S. at 330 (citation omitted), indicates that a univer-

sity need not blind itself to the characteristics of the

community into which students will graduate. Here,

the University concluded that the stark disparity

between the makeup of the campus and the makeup of

the State as a whole supported its conclusion that its

campus environment was “less-than-realistic” and

therefore not “conducive to training” future leaders.

S.J.A. 24a-25a.

While the University viewed the demographic dis-

parity as cause for concern, it did not attempt to bal-

ance its student-body demographics with the outside

population. The University emphasized that it would

measure success by evaluating the quality of the edu-

cational experiences it was providing rather than by

comparing its minority population to the State’s.

S.J.A. 24a-25a.

30

3. The University’s discussion of its holistic analy-

sis reveals that it had an additional interest, related to

its classroom-interaction interest, in admitting stu-

dents of all races who “can enrich classroom discus-

sions with their unique experiences.” S.J.A. 28a.

Because the University’s admissions process pro-

ceeds on two tracks—the Top Ten plan and the holis-

tic analysis—it must use the holistic analysis to admit

students whose academic excellence is not captured by

class rank or whose primary contribution to the Uni-

versity will be their non-academic experiences and

personal achievements. See S.J.A. 27a-28a. Students

admitted through the Top Ten plan—minority and

non-minority alike—are admitted solely for their aca-

demic achievements measured by class rank. By con-

trast, students admitted through the holistic analysis

are often selected primarily for their non-academic

attributes: extraordinary extracurricular achieve-

ments or triumph over significant hardships. J.A.

430a. While those applicants may also have academic

abilities not reflected in their class rank, their distin-

guishing feature is that they possess experiential

qualities that Top Ten admittees who have focused on

academics may not. S.J.A. 28a. The University there-

fore had an interest in ensuring that it admitted mi-

norities whose primary achievements extended be-

yond academics or whose accomplishments were not

fully captured by class rank.' See J.A. 482a-484a.

' Contrary to petitioner’s argument (Br. 29), the University has

not asserted an interest in admitting minorities educated in “pre-

dominantly white high schools.” The University has explained that

it seeks to admit minority students with a variety of backgrounds,

Resp. Br. 29-31, J.A. 253a, 258a-259a, 260a-261a, 318a, 359a-361a;

that the holistic analysis focuses on those whose primary contribu-

31

That interest is consistent with Grutter, which ex-

plained that a university should consider all aspects of

diversity and seek to admit students who are diverse

in all respects. 539 U.S. at 338.

B. The University Has Established That It Had Not At-

tained Sufficient Diversity To Fully Provide The Edu-

cational Benefits Of Diversity In 2004 And 2008

The University’s conclusion that it had not

achieved the educational benefits of diversity in 2004

and 2008 is well supported by concrete evidence. By

2004, when the University decided to include race in

its holistic analysis, it had employed race-neutral

measures—the Top Ten plan, an extensive scholarship

program, recruitment efforts, and consideration of

socioeconomic factors—for several years. S.J.A. 30a-

32a. The University concluded that increasing its

reliance on race-neutral measures was not workable:

admitting all students exclusively based on class rank

would have led to a “dramatic sacrifice of diversity” of

all kinds, Grutter, 539 U.S. at 340; the University did

not have the budget to increase scholarships, S.J.A.

3la-32a; and the percentage of holistic admittees who

were minorities had remained stagnant despite con-

sideration of socioeconomic factors, S.J.A. 45a; J.A.

1762 +Petitioner does not seriously dispute those

conclusions. Br. 47. Rather, her primary contention

(Br. 45-46) is that by 2004, the University had

achieved sufficient diversity to attain its educational!

goals, such that considering race was not necessary.

Petitioner is incorrect.

tions to the student body may be experiential or not reflected in

class rank, S.J.A. 28a; and that considering race would provide

useful additional context in that analysis, S.J.A. 29a.

32

The classroom diversity study demonstrated that

as the University increased the number of smaller

classes between 1996 and 2002, the percentage of

classes with one or no African-American or Hispanic

students had increased (to 90% and 43%, respective-

ly). S.J.A. 26a. That trend raised concerns, S.J.A.

25a, because the University intended to increase the

number of smaller classes, S.J.A. 70a. An unintended

consequence of that effort could be a likelihood that

students would graduate from the University without

experiencing to any significant degree the cross-racial

interaction in the classroom that the University be-

lieved to be an important part of a full educational

experience.

Turning to student-body demographics, African-

American enrollment had increased only slightly since

the Top Ten plan’s institution in 1998. In 2004, Afri-

ean Americans totaled only 309 enrolled freshmen out

of 6796 (5%), and in 2008, they accounted for 375 out

of 6715 (6%). S.J.A. 156a. Petitioner does not contend

that those numbers were sufficient to avoid racial

isolation, promote cross-racial understanding, and

materially increase classroom cross-racial interac-

tions—much less provide a visible path to leadership.

See Grutter, 539 U.S. at 332.

Hispanic students, for their part, made up 16.9% of

the freshman class in 2004, and 20% in 2008. S.J.A.

156a. Those numbers may have alleviated concerns

about racial isolation and tokenism campus-wide. But

other evidence indicated that Hispanic students were

not yet present in sufficient numbers to alter student

experiences. The trend toward less classroom diversi-

ty held true of Hispanic as well as African-American

students. S.J.A. 72a-73a. In addition, “a majority of

33

undergraduates” reported that they believed “there

was no diversity in the classroom,” and “minority

students” reported that they “still felt isolated in the

classroom.” J.A. 446a; see J.A. 317a-318a. That evi-

dence was particularly troubling in light of the Uni-

versity’s mission of training students to succeed in a

State in which Hispanics represented a fast-growing

segment of the population. S.J.A. 24a. The University

therefore had ample reason to conclude that it could

not provide the degree of cross-racial interaction

necessary to prepare its students for leadership in

Texas. See ibid.

The University’s determination that it needed to

consider race was buttressed by its desire to select a

class “consisting not only of academically qualified

individuals with a high probability of success, but also

individuals who can enrich classroom discussions with

their unique experiences.” S.J.A. 28a; see id. at 29a.

By 2003, the non-Top Ten admissions process became

extremely selective. J.A. 408a; see J.A. 462a-463a.

Excluding all consideration of race, the University had

increasing difficulty ensuring that its non-Top Ten

admissions included significant numbers of minority

students who possessed the attributes valued by the

University but not necessarily accounted for in Top

Ten admissions.* See pp. 30-31, supra. Taking race

* Petitioner criticizes (Br. 36) the University for failing to deter-

mine whether minority students admitted through the Top Ten

plan possessed the qualities it looks for in the holistic analysis.

But a stated purpose of the holistic analysis is to admit students

whose personal and academic achievements are not reflected in

their class rank. S.J.A. 28a. While some Top Ten admittees likely

share the interests and perspectives of those admitted through the

holistic analysis, it would be surprising—and fortuitous—if the

3A

into account as one factor in the holistic individual

assessment therefore helped ensure that “minority

student(s]” whose personal and academic achieve-

ments are not reflected in their class rank would be

considered “sufficiently meritorious and diverse” to be

admitted. J.A. 484a.

C. The University’s Consideration Of Race Directly Ad-

vances Its Goals

The University’s admissions plan is also “specifical-

ly and narrowly framed” to accomplish the Universi-

ty’s goals. Fisher, 133 S. Ct. at 2420. As required by

Grutter and Fisher, the plan gives individualized con-

sideration to each applicant, does not make race the

“defining feature” of any application, and is limited in

time. /bid.; S.J.A. 29a; see pp. 23-25, supra. Petition-

er rightly does not contend otherwise.

The University’s consideration of race is also de-

signed to achieve its objectives. As the University

explained, its consideration of race bolstered minority

enrollment in the overall student body by “in-

creas{ing] the chance that an underrepresented mi-

nority student will be sufficiently meritorious and

diverse” to be admitted. J.A. 484a. The University’s

consideration of race also promoted its interest in

cross-racial interaction in the classroom, helping to

ensure that all graduates have a real opportunity for

such interaction during their time on campus. The

University concluded that minority individuals admit-

ted for their leadership potential and non-academic

achievements would “enrich classroom discussions

with their unique experiences.” S.J.A. 28a. Increas-

portion of the class admitted based solely on class rank were

broadly diverse in all the ways the University values.

35

ing minority representation in the student body also

would necessarily increase classroom representation

overall.’ S.J.A. 25a. In addition, those admitted for

their diverse characteristics might be drawn to classes

and activities not heavily populated by minorities

admitted through the Top Ten plan. In 2007, for in-

stance, holistic admittees accounted for a significant

portion of the freshman minorities enrolled in the

Schools of Fine Arts, Education, and Social Work.

S.J.A. 166a.

Petitioner’s arguments to the contrary are without

merit. Petitioner’s primary contention (Br. 46-47) is

that the University’s consideration of race did not

result in the admission of a sufficient number of mi-

norities to be effective. See Pet. App. 7la (Garza, J.,

dissenting). But the fact that the University’s consid-

eration of race produced measured rather than drastic

increases is a virtue not a vice, as it results from the

individualized, holistic nature of the University’s con-

sideration of race. See Grutter, 539 U.S. at 390-391

(Kennedy, J., dissenting) (plans that have a limited

effect on minority admissions are more likely to safe-

guard individualized consideration). Indeed, a holistic

admissions plan that is permissible under Fisher and

Grutter will necessarily produce incremental rather

than drastic gains in minority admissions. See ibdid.;

pp. 24-25, supra. Having not yet reached its educa-

tional goals despite employing race-neutral measures

to the extent workable, the University was entitled to

* Because the University sought only to avoid “large numbers” of

homogenous classes, S.J.A. 25a, not to ensure minority representa-

tion in each class, petitioner is incorrect in contending (Br. 45) that

the University would have needed to “flood{] the system” with

minority students in order to improve classroom diversity.

36

conclude that incremental gains would help promote

its objectives.

Finally, petitioner is wrong to suggest (Br. 46) that

Parents Involved establishes that the University’s

policy is unconstitutional on the ground that its costs

outweigh its benefits. In Parents Involved, school

districts used race in a predominant, mechanical fash-

ion to dictate school assignments, and they failed to

consider whether, in light of the policies’ minimal

impact, other less restrictive measures would have

been as effective. 551 U.S. at 711, 733-734. One such

means would have been a “more nuanced, individual

evaluation of school needs and student characteristics

that might include race as a component” and that

would be “informed by Grutter.” Id. at 790 (Kennedy,

J., concurring in part and concurring in the judg-

ment). That individualized evaluation is precisely

what the University has instituted. Parents Involved

does not suggest that in order to be narrowly tailored,

such a holistic, individualized policy must have drastic

effects.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

rae, S. y teed ”

cting Principal Deputy

General Counsel

Department of Defense

STEVAN E. BUNNELL

General Counsel

Department of Homeland

ecurity

JAMES COLE, JR.

General Counsel

Department of Education

WILLIAM B. SCHULTZ

General Counsel

oy of Health and

uman Services

KELLY R. WELSH

General Counsel

Department of Commerce

M. PATRICIA SMITH

Solicitor of Labor

Department of Labor

NOVEMBER 2015

DONALD B. VERRILLI, JR.

Solicitor General

VANITA GUPTA

Principal Deputy Assistant

Attorney General

IAN HEATH GERSHENGORN

Deputy Solicitor General

GINGER D. ANDERS

Assistant to the Solicitor

General

DIANA K, FLYNN

TOVAH R. CALDERON

Attorneys