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

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No. 14-981 ___

ABIGAIL NOEL FISHER, PETITIONER

vz.

UNIVERSITY OF TEXAS AT AUSTIN, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF NATIONAL ASSOCIATION OF BASKETBALL

COACHES, WOMEN’S BASKETBALL COACHES ASSOCIATION,

THE NATIONAL ASSOCIATION FOR COACHING EQUITY AND

DEVELOPMENT, GENO AURIEMMA, JIM BOEHEIM,

JOHN CHANEY, JODY CONRADT, TOM IZZO,

MIKE KRZYZEWSKI, JOANNE P. MCCALLIE,

GEORGE RAVELING, NOLAN RICHARDSON, SUE SEMRAU,

ORLANDO “TUBBY” SMITH, JOHN R. THOMPSON, JR.,

TARA VANDERVEER, DICK VITALE,

COQUESE WASHINGTON, AND GARY WILLIAMS

AS AMICI CURLAE IN SUPPORT OF RESPONDENTS®

RICHARD D. BATCHELDER, JR. MATTHEW T. HENSHON

Ropes & GRAY LLP Counsel of Record

Prudential Tower HENSHON KLEIN LLP

800 Boylston Street 120 Water St., 2nd Floor

Boston, MA 02109

Boston, MA 02199 ’

(617) 367-1800

mhenahon@henahon.com

SAMIRA A. OMEROVIC

ROPES & GRAY LLP

2099 Pennsylvania Ave., N.W.

Washington, DC 20006

* Additional amici are listed in Appendix

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON,D C. 20002

TABLE OF CONTENTS

Page

SRE CE RIES CIID cccccesesccressssseesnenionneimmmanineiiia 1

Introduction and SUMMATY ..............:..sccscceseseeeseceeeseeseceees 9

Argument:

I. The values expressed by the Grutter v. Bollinger

Court are supported by our collective experience 11

A. Athletics has long played a key part in

increasing perspectives across diverse

groups, both within the team itself and

in the population at large... eee 11

B. Team-building on the modern campus

requires working together with a

diverse group of student-athletes, a

model for working in today’s

professional environment....................::.-00-+ 20

C. Our student-athletes, coming frou:

diverse and multi-cultural

environments, have gone on to serve our

nation in varied and important fields ........... 24

Il. Retreating on diversity could have dire

CUI cccccsensnnsecsimscnisintiiinmnniiadiniiiianamil 28

Ce iscccsensicinsciscsinneetesnsiiciasisstititiitniaiatianaaaicainalasibimmamaaa 37

i resessscscseenvemenssonaininanuiiiinainiaagiseniiaiiaael la

(1)

TABLE OF AUTHORITIES

Cases:

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

EEE EE A a ae )

Fisher v. Univ. of Tex. at Austin, 758 F.3d

ET 9

Grutter v. Bollinger, 589 U.S. 306 (2003).......passim

Regents of Univ. of Cal. v. Bakke, 438 U.S.

Ee 10, 19

Miscellaneous:

ABC News, Robin Roberts Biography,

http://tinyurl.com/74ugq2t (last visited

EE A aE 26

Arthur S. Ashe, Jr., et al., A Hard Road to

Glory: A History of the African-

American Athlete Since 1946 (1988)................ 6,7

Erik Bleich, Race Policy in France,

Brookings Institution (May 2001),

http://tinyurl.com/ppopgy] ...................c..sssseee- 30

Juiie Bosman & Alan Blinder, Missouri

Orders Nightly Curfew to Quell Looting,

me 28

Bill Bradley:

Cooper Union Speech on Race (Apr. 20,

1999), http-//tinyurl.com/p69angg ............... 21

Hall of Fame Enshrinement Speech (May

2, 1983), http://tinyurl.com/nj2u3fo ........... 25

Time Present, Time Past (1996)................0.0000. 2D

Ill

Miscellaneous—Continued: Page(s)

Aurelien Breeden & Alissa J. Rubin, French

Authorituss Hold Suspect in Beheading

yk ET Sc 32

President George W. Bush, Eulogy for

President Ford (Jan. 2, 2007) ............cccccccccseceeeees 37

John Carlin, Playing the Enemy: Nelson

Mandela and the Game that Made a

Sandra L. Colby & Jennifer M. Ortman,

Projections of the Size and Composition of

the U.S. Population: 2014 to 2060, U.S.

Census Bureau (Mar. 2015).............:c0cscseeeeeees 21

Anthony Crupi, Enterprise Revs Up March

Madness Spot, AdWeek (Mar. 5, 2012),

http-/tinyurl.com/ppj69sp ...............cc.ceceeceeeees 22

Seth Davis:

Pioneering Coach George Raveling’s

Surprising Connection to MLK,

Sports Illustrated (Jan. 19, 2015),

http/ tinyurl.com/Irlbexe 2.0.0.2... 5

When March Went Mad: The Game that

Transformed Basketball (2009)........ 16, 17, 18

Arthur Conan Doyle, The Hound of the

TTS 15

Email from Peter Roby, Athletic Director,

Northeastern University to Matthew T.

Henshon (Sept. 21, 2015, 5:08pm ET) (on

file with Matthew T. Henshon).......................... 23

Miscellaneous—Continued: Page(s)

Richard Fausset, Open Doors and Lingering

Pain at Charleston Church Where 9 Were

Killed, N.Y. Times, Oct. 19, 2015 .............-000000 .28

John Feinstein, A March to Madness: The

View From the Floor in the Atlantic

Coast Conference (1998) ..........:ccceceeeceeserseeeee 6, 16

Scott Gleeson & Erik Brady, A Coach Comes

Out of the Closet, USA Today, Oct. 7, 2015 ......20

Jeffrey Goldberg, Is [t Time for the Jews to

Leave Europe?, The Atlantic (Apr. 2015)........ 32

Wesley Harris, Peter Roby Profile,

Ivy50.com (Jan. 25, 2007), http-//tinyur!.

CO eccennenssernnnscenerseecsemenremenenenesnceseeves 23

Andrew Higgins & Dan Bilefsky, French

Gunmen Die in Raids, N.Y. Times, Jan.

Highland Capital Partners, James Cash,

Ph.D., Special Advisor Biography,

http///tinyurl.com/psudby5 (last visited

I cscncniatneentndbeinsensstnetentenmmninssnnevence 26

Andrew Hussey, Les Temps Modernes, The

Observer, Apr. 2, 2006 .............cccccsscesseseeeees 30, 31

Youssef M. Ibrahim, ‘Arab Girls’ Veils at

Issue in France, N.Y. Times, Nov. 12,

cli ietiiaieetieletnrteineamcataianiataarsinnbiminanatenssnenni 32

Earvin “Magic” Johnson & William Novak,

i ctirhtitiiiceiccsinnangenitenaseteniinnmeescces 18

Bob Katz, The Whistleblower: Rooting for the

Ref in the High-Stakes World of College

EE 21, 22

Miscellaneous—Continued: Page(s)

Jason King, The Adreian Payne Story: How

Michigan State Star Became the Ultimate

Role Model, Bleacher Report (Feb. 5,

2014), http://tinyurl.com/I3u6ryk....................... 27

Simon Kuper, Racism Lives On in France as

World Cup Win Fades, Financial Times,

Ft LIE hinscennsettiuiesieneasinnninidensaidmmienmiagnen 29, 31

Michael Lenehan, Ramblers: Loyola Chicago

1968—The Team that Changed the Color

of College Basketball (2013)................+++- 12, 13, 14

Letter from Jackie Robinson to Vice Presi-

dent Richard Nixon (Feb. 5, 1958) in First

Class Citizenship: The Civil Rights Let-

ters of Jackie Robinson (Michael G. Long

a BN serteencirenniabinennatiemnnintennimanes 24

Letter from John F. Kennedy to Jackie Rob-

inson (July 1, 1960) in First Class Citizen-

ship: The Civil Rights Letters of Jackie

Robinson (Michael G. Long ed., 2007).............. 24

Nelson Mandela, Long Walk to Freedom

TE trcotecenernnenteseminsctannmmnmmenenssmmenemmnnent 33

Charles H. Martin, Benching Jim Crow: The

Rise and Fall of the Color Line in

Sourthern College Sports, 1890-1980

a eaietccncseienitntcinsnannnesinnsesmntntemmmaenpeiemescosaven 13, 14

John McPhee, Levels of the Game (1969).................. 6

Graham Moomaw, Symbols That Divide,

Richmond Times-Dispatch, June 28, 2015........... 6

Miscellanecus—Continued: Page

Naismith Memorial Hall of Fame (HOF):

Dick Vitale Biography,

http://tinyurl.com/q6vw’srf3 (last visited

ee NE ernteticeiserteiscanenrencsessnsnenscseussenesesnnesuand 4

Gary Williams Biography,

http://tinyurl.com/oovowzg (last visit-

ne a iticrttnesereeernnceencctmnnceemenmenees 16

Geno Auriemma Biography,

http//tinyurl.com/py9p2gh (last visit-

8 en 7

George Raveling Biography,

http//tinyurl.com/ntcx8lc (last visited

I ccsnccnccscnscentiinnimmensssstntocestenmesnsenel 5

Hall of Famers,

http-//tinyurl.com/y987289 (last visited

I cenniincinceiiniisntcnninicnnauennninmmeemesnecenes 12

John Chaney Biography,

http://tinyurl.com/ozbb9n¢9 (last visited

os i MEE eeivtecnnnscicnmabessncsasessccssensasenvesscscsees 5

John R. Thompson Biography,

http://tinyurl.com/ohj4nku (last visited

ie I crcieccnnnstnsoeectsceronssctneanmeemnsssssocesesned 4

Nolan Richardson Biography,

http://tinyurl.com/njn3spg (last visited

a IE sercpcnienennsecintnocnninececesennienesvececcsscned 4

NCAA Commercial (RefineryNYC Jan. 21,

2010), http://tinyurl.com/oj3w7f.....................-. 24

NCAA, Sport Sponsorship, Participation and

Demographics Search (Student-Athlete

Data] (2015), http://tinyurl.com/qe69gbn ......... .20

VII

Miscellaneous—Continued: Page(s)

NCAA, Statement on Confederate Flag

Moratorium (Nov. 11, 2004),

http://www.nabc.org/ sports/m-

baskbl/spec-rel/111104aab.html.................c:0000000+ 6

Gary Parrish, The Shaping of Shaka, CBS

Sports (Dec. 3, 2014), http://tinyurl.com/

Press Release, Enterprise Holdings, Enter-

prise Rent-A-Car Looks to Hire Student-

Athletes, Partners with Career Athletes

(Apr. 25, 2012), http://tinyurl.com/

ITD cctccnnceniesansncnsesemninmsssnemanevtsncnessvececnsnnee 22

Chuck Schilken, Brittney Griner

Acknowledges She’s Gay, says ‘Just be

who you are’, L.A. Times (Apr. 18, 2013),

http-//tinyurl.com/peuv8tw ..............cescceseeeeeeeee 19

Elaine Sciolino, In French Suburbs, Same

Rage, but New Tactics, N.Y. Times, Nov.

Dean Smith, et al., A Coach’s Life (1999)............ 7, 28

Sheryl Gay Stolberg, Clashes Rock

Baltimore After Funeral; Curfew Is Set,

N.Y. Times, Apr. 28, 2015 ..............ccccccceeeeeeeeeees 28

Rebecca Trounson, A Startling Statistic at

UCLA, L.A. Times, June 3, 2006...............0.:000+5 29

Kyle Veazey, Champions for Change: How

the Mississippi State Bulldogs and Their

Bold Coach Defied Segregation (2012)......... 12, 13

Dick Vitale & Dick Weiss, Holding Court:

Reflections on the Game I Love (1996)............ 4,5

VII

Miscellaneous—Continued: Page

J. Samuel Walker, ACC Basketball: The

Story of the Rivalries, Traditions, and

Scandals of the First Two Decades of the

Atlantic Coast Conference (2011) .................-.0++ 7

Coach John Wooden & Steve Jamison,

Wooden: A Lifetime of Observations and

Reflections On and Off the Court (1997)............. 8

Cyd Zeigler, Derrick Gordon Finds His

Freedom, OutSports (Apr. 9, 2014),

http-//tinyurl.com/q32bhje

In the Supreme Court of the Amited 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 OF NATIONAL ASSOCIATION OF BAS-

KETBALL COACHES, ET AL. AS AMICI CURI-

AE IN SUPPORT OF RESPONDENTS

Amici curiae’ respectfully submit this brief in sup-

port of Respondents.°

INTEREST OF AMICI CURIAE

Amici are organizations representing over 7,500

current and former collegiate head and assistant bas-

ketball coaches and athletic administrators involved at

the National Collegiate Athletic Association (NCAA),

the National Association of Intercollegiate Athletics

' Individual signatories are expressing their own views, and are

not signing on behalf of the institutions where they work or have

worked.

* All parties have consented to the filing of this amicus curiae brief.

No counsel for any party authored this brief in whole or in part,

and no person or entity, other than amici curiae or their counsel

made a monetary contribution intended to fund the preparation or

submission of this brief.

(1)

(NAIA), and community college levels, as well as 285

current and former college head basketball coaches.

Taken as a whole, amici represent thousands of years of

collective experience teaching, coaching, and advising

student-athletes at all levels of the game.

We are well-aware of our role within the larger uni-

versity context, often as one of the public “faces” rep-

resenting the university. Our student-athletes are just

that: students and athletes, and they regularly interact

on campus with athletes and non-athletes alike. And

while our student-athletes have athletic talents, they

often have other talents as well, be it research, art, mu-

sic, or other disciplines found on the modern campus.

We understand—from our work every day—the value

that diversity and increased perspectives give our stu-

dent-athletes and the campus community as a whole,

and we appreciate the opportunities that a diverse aca-

demic environment affords our players. Finally, in our

role as members of the broader university community,

we have experienced first hand the advantages of hav-

ing a diverse student body, and how students of all

backgrounds take the lessons learned from living i

such an environment to communities beyond the con-

fines of campus.

The National Association of Basketball Coaches

(NABC) represents 4,486 coaches from around the

country and from every level of basketball. Started in

1927, the NABC has tracked this nation’s evolution on

issues related to race and diversity, and has made par-

ticular efforts in recent years to ensure that leadership

in our athletic departments (both administration and

coaching) reflect the considerable diversity of our

teams. The Women’s Basketball Coaches Association

(WBCA) represents 3,013 women and men who coach

women’s and girls’ basketball on every competitive lev-

el of the sport and has worked to expand educational,

professional, and athletic opportunities for female play-

ers of all races and backgrounds since its founding in

1981. The National Association for Coaching Equity

and Development (NAFCED) is a membership organi-

zation dedicated to empowering, developing and ad-

vancing the professional careers of racial and ethnic

minority coaches in athletics. NAFCED has over 100

members, many of whom are also signing individually.

While all of the amici support the values expressed

herein, four in particular should be highlighted for their

role in personifying the ideals that we teach on a daily

basis. One is John R. Thompson, Jr., who coached at

Georgetown for 27 years, won a National Championship

in 1984, and was elected to the Naismith Memorial

Basketball Hall of Fame (the Hall of Fame) in 1999. He

served as President of the NABC in 1985-86. Thomp-

son grew up in Washington, D.C. in the late 1950s. His

mother was not allowed to teach in the D.C. public

school system despite having her teaching certificate;

instead, she cleaned houses for a living, while his father

worked as a mechanic in a tile factory. “Big John” was

a leader in bringing opportunity to student-athletes

who might not otherwise have had the chance, building

on his own experience:

If I weren’t given an opportunity, if

someone hadn’t given me the chance to

attend Providence, and then become a

coach, my three kids wou!d have never

had a chance. It’s a vicious cycle. We

only look at the kids who don’t make it.

What about the kids who do?

Dick Vitale’ & Dick Weiss, Holding Court: Reflections

on the Game I Love 176 (1995). Of the 77 players who

played all four years at Georgetown for Thompson, all

but two earned their degrees. Naismith Memorial Hall

of Fame (HOF), John R. Thompson Biography,

http//tinyurl.com/ohj4nku (last visited Oct. 25, 2015).

Thompson was not only a teacher, but also a role model

who embodies the values that we seek to promote.

Nolan Richardson is another amicus. He was raised

by his grandmother in a primarily Mexican neighbor-

hood in E] Paso, Texas. Richardson was the first black

student at Bowie High School in the early 1960s, and

“had to put up with all sorts of instances of racism and

segregation.” Vitale, at 183. After working his way up

through the coaching ranks of high school, junior col-

lege, and the mid-majors, Richardson became the first

black coach in the old Southwest Conference, at Arkan-

sas, in 1985. Ibid. He won a National Championship in

1994, and was elected to the Hall of Fame in 2014.

HOF, Nolan Richardson Biography, http~//tinyurl.com

/njn3spg (last visited Oct. 25, 2015). A pioneer

throughout his life, he remained an outspoken advocate

for those born into difficult circumstances.

John Chaney, a third amicus, grew up so poor that

when he won the Philadelphia Public School Player of

the Year award, he could not afford a sports jacket to

* Amicus Vitale was elected to the Hall of Fame in 2008. Naismith

Memorial Hall of Fame (HOF), Dick Vitale Biography, http-//tiny

url.com/q6werf3 (last visited Oct. 25, 2015).

attend the dinner. Vitale, at 182. After a brilliant col-

lege career, his professional prospects topped out in the

Eastern League because of limitations on his access to

the NBA. /d. at 183. Subsequently, Chaney transi-

tioned into coaching, moving to Temple in 1982, where

his 6:00 AM practices were legendary. Instead of ac-

cepting defeat after becoming a victim of exclusion,

Chaney built a career teaching and inspiring others.

He entered the Hall of Fame in 2001. HOF, John

Chaney Biography, http-//tinyurl.com/ozbb9n9 (last vis-

ited Oct. 25, 2015).

After a brilliant playing career at Villanova, George

Raveling began a coaching career that took him across

the country. He was the first African-American assis-

tant in the Atlantic Coast Conference, and later the

first African-American head coach in what is now the

Pac-12 Conference. In addition, he is linked to one of

the seminal moments in the Civil Rights movement: on

August 28, 1963, Raveling volunteered to work security

at the March on Washington. As Martin Luther King,

Jr., finished the “I have a Dream” speech, he passed

Raveling and handed him the text of the speech. Rav-

eling still has the manuscript. Seth Davis, Pioneering

Coach George Raveling’s Surprising Connection to

MLK, Sports Illustrated (Jan. 19, 2015),

http-//tinyurl.com/irlbexe. He served as President of

the NABC in 1995-96 and was elected to the Hall of

Fame this year. HOF, George Raveling Biography,

http-//tinyurl.com/ntcx8lc (last visited Oct. 25, 2015).

Finally, we mention two former colleagues and Hall

of Famers who exemplify the spirit that animates all of

the amici. The first is the late Dean Smith, who served

as President of the NABC in 1981-82, and won two Na-

tional Championships at the University of North Caro-

lina-Chapel Hill, mentoring and coaching generations of

student-athletes, including Michael Jordan. Coach

Smith earned a reputation as having “proven [his] re-

spect for the black athlete.” Arthur S. Ashe, Jr.,‘ et al.,

A Hard Road to Glory: A History of the African-

American Athlete Since 1946 63 (1988). As a lowly as-

sistant coach in the summer of 1959, Smith was asked

by the pastor of his church to help integrate a popular

restaurant in Chapel Hill by dining there with a black

student. John Feinstein, A March to Madness: The

View From the Floor in the Atlantic Coast Conference

188 (1998). Smith’s memoir continues the story:

* Ashe was both author and pioneer. John McPhee, Levels of the

Game 45 (1969) (On comparisons with Jackie Robinson: “{Tjhe

analogy is weak and foreshortens the story. Jackie Robinson was

part of a pool of many hundreds of first-rate baseball players, and

was chosen from among them * * *. Arthur, at the age of seven-

teen * * * stood, as he has remained, alone.”). Ashe also stands as

an example of how an athlete's life can help bridge racial divisions.

In 1996, when the Richmond City Council voted to add a statute of

Ashe to the city’s Monument Avenue, which contains statutes of

Confederate war heroes, it represented a turning point in Rich-

mond’s history. The Ashe statute also has been oft referenced in

connection with the recent debate over the appropriateness of the

public display of Confederate symbols in the wake of the Charles-

ton, South Carolina shooting. See Graham Moomaw, Symbols That

Divide, Richmond Times-Dispatch, June 28, 2015, at 1A. During

the 1990s, amicus NABC (with others) petitioned the NCAA to

stop assigning NCAA championships to sites in states where the

Confederate flag is flown on Capitol grounds. The NCAA honored

the request in 2001, and no championship sites in any sport have

been awarded in those states to this day. NCAA, Statement on

Confederate Flag Moratorium (Nov. 11, 2004), http//www-.nabe

.org/sports/m-baskbl/spec-rel/111104aab.html.

I was an appropriate one to go because

it was a tradition for the basketball

team to eat pregame meals there. * * * I

have read accounts that claim we were

received with stunned silence and

glares, but I do not think that was the

case. The only thing a little awkward

was a slight delay in seating us as the

hostess sized up the situation and looked

to the manager for a signal about how to

proceed.

Dean Smith, et al., A Coach’s Life 95-96 (1999).°

The second’ is the late John Wooden of UCLA, who

remains the most successful men’s coach in Division I

history with ten NCAA titles." Wooden recognized

that working together—in the basketball context—

requires racial understanding in both directions (play-

er-to-coach and coach-to-player):

Dad helped set my thinking in place on

the issue of race. He told me and my

brothers many times, “You’re just as

* Consistent with his modesty and self-awareness, Smith down-

played the incident throughout his life: “If I had been truly coura-

geous * * * I would have gone to every black high school gym in

the state looking for players.” J. Samuel Walker, ACC Basketball:

The Story of the Rivalries, Traditions, and Scandals of the First

Two Decades of the Atlantic Coast Conference 246 (2011).

* Like Dean Smith, Wooden was recognized by Arthur Ashe for his

“respect” for black athletes. Ashe, at 63.

" Amicus Geno Auriemma has tied Wooden’s mark with the UConn

women’s team. HOF, Geno Auriemma Biography, http:/Ainyurl.

com/py9p2qh (last visited Oct. 25, 2015).

good as anyone, but you’re no better

than anybody.”

Coach John Wooden & Steve Jamison, Wooden: A Life-

time of Observations and Reflections On and Off the

Court 156 (1997).

Our occupation gives us insight into the questions

the Court grapples with today. On the one hand, we

are part of academia, and ultimately our role is to edu-

cate young men and women. On the other hand, our

educational role is within the most competitive of envi-

ronments—and one where there are winners and los-

ers. Many of us have competed against each other on

the court, but we join together here.

Coaching in the university context is unique in an-

other way: many of us operate in “majority-minority”

environments, and all of us have teams with diverse

members. Finally, almost all of us know, first-hand, the

difficult and challenging areas that still exist in this

country, often in urban environments; some of us are

from those areas personally, and nearly all of us have

made recruiting trips there in our professional capacity.

We are not writing as dilettantes or tourists. We live

this life.

We also write with a degree of self-interest, in this

indirect but important way: the Court’s ultimate deci-

sion in this case will probably not impact our recruiting

or player selection—other rules and requirements con-

trol those activities. But we know that an adverse de-

cision in this case will hurt our players, making them

less connected to and more isolated from their universi-

ty communities. And it will hurt the communities

themselves, as diverse viewpoints and interactions wil!

be fewer in number, as we have seen in those states

that have abolished affirmative action through ballot

initiatives, because fewer minorities are admitted.

Prohibiting universities from considering race, along-

side many other factors, when evaluating a candidate

for admission to a college or university, will have signif-

icant deleterious effects, and will put severe limits on

the types of positive outcomes we discuss here.

INTRODUCTION AND SUMMARY

In remanding to the Fifth Circuit, this Court que-

ried whether the undergraduate admissions program at

the University of Texas at Austin (UT-Austin) that al-

lows for race-conscious holistic review of applicants not

automatically admitted under the Texas Top Ten Per-

cent Law is sufficiently “narrowly tailored to obtain the

educational benefits of diversity.” Fisher v. Univ. of

Tex. at Austin, 133 S. Ct. 2411, 2421 (2013) (Fisher J).

This Court will determine whether the UT-Austin ad-

missions program meets the strict scrutiny test as

called for in the remand order. /d. at 2421-2422.

In analyzing the UT-Austin admissions program, it

is important to remember that about three-quarters’ of

the UT-Austin class is filled via the “Top Ten Percent,”

which does not consider race in any manner (although

* For instance, in 2008, this group comprised 81% of the UT-Austin

class. After legislative revisions, this group was down to 77% for

the class of 2013. Fisher v. Univ. of Tex. at Austin, 758 F.3d 633,

654-655 (5th Cir. 2014) (Fisher IJ).

* Because of legislative limits on the number of “automatic admis-

sions,” over recent years, the number has been Top 9% (Fall 2012

applicants) and Top 7% (Fall 2014 and Fall 2015 applicants). Fish-

er II, 768 F.3d at 6556-656.

its degree of effectiveness arises from the profound

segregation in Texas high schools). The balance of the

class is filled via a holistic review like that previously

endorsed by this Court, of which race is but one factor.

See Grutter v. Bollinger, 539 U.S. 306, 344 (2003); Re-

gents of Univ. of Cal. v. Bakke, 438 U.S. 265, 317 (1978).

This complementary two-part admission system,

providing essentially a second-bite-at-the-(admissions)-

apple for those Texas residents who finish outside the

top 10% of their high school class, is narrowly-tailored

to ensure that those who achieve a standing among the

top 10% of their class will gain admission to UT-Austin,

while the remaining spaces are filled with a group of

students from varied backgrounds and experiences to

fulfill the court-recognized educational benefits of, and

interests in, diversity.

The holistic admission review that was approved by

Grutter and Bakke is vital to ensure diversity. Grutter,

539 U.S. at 341; Bakke, 438 U.S. at 317. College bas-

ketball—with diverse teams—offers a microcosm of the

academic community that these decisions envisioned.

And our collective experiences allow us to identify in-

creased perspectives, opportunities for professional de-

velopment, and greater citizenship, the very goals that

were endorsed by Grutter and Bakke.

While this Court has asked a narrow question on

remand (whether the UT-Austin admissions program is

“narrowly tailored”), we write to provide context. The

dimensions of what level of tailoring is acceptable must

be measured in light of what diversity adds, and what

will be lost if the Fifth Circuit’s decision is reversed.

We write to provide real-life examples—qualitative ev-

idence—of how the goals of diversity, and the educa-

tional value it provides, benefit both the classroom, and

the society that students enter after college.

ARGUMENT

I. THE VALUES EXPRESSED BY THE GRUTTER V.

BOLLINGER COURT ARE SUPPORTED BY OUR

COLLECTIVE EXPERIENCE

A. Athletics Has Long Played A Key Part

In Increasing Perspectives Across

Diverse Groups, Both Within The Team

Itself And In The Population At Large

The Court in Grutter v. Bollinger held that one of

the key reasons why a “critical mass” of minorities is

vital is the increase in perspectives brought to the

classroom when students have “the greatest possible

variety of backgrounds.” 539 U.S. 306, 329-330 (2003)

(citation omitted). The classroom that the Grutter

Court envisions—of which our teams are a micro-

cosm—is not often portrayed in a qualitative manner.

But the history and exposure that we represent is doc-

umented widely due to popular culture’s interest in col-

lege sports. This documentation gives us examples that

show how broadly perspectives can be changed through

increased diversity. No matter one’s opinion of sports,

its broad appeal throughout our nation provides insight

into this issue in a way that is difficult to find in other

arenas.

In the late 1950s and early 1960s, the State of Mis-

sissippi refused to allow its teams to play in the NCAA

Tournament because of the likelihood that they would

play against integrated teams. Three times in four

years (1959, 1961, and 1962) Mississippi State (MSU)

won the Southeastern Conference but declined an invi-

tation to the NCAA Tournament. Kyle Veazey,

Champions for Change: How the Mississippi State

Bulldogs and Their Bold Coach Defied Segregation 40-

41 (2012). In 1962, the SEC second-place team accepted

a berth in the Tournament instead, and ended up play-

ing Ohio State. One of the MSU players went to watch

the game and said:

That’s the first time I really understood

* * *. We could have been there. We

deserved to be there. And certainly

when you are setting [sic] up in the

stands watching them play, you realize

what you're missing out on.

Michael Lenehan, Ramblers: Loyola Chicago 1963—

The Team that Changed the Color of College Basketball

121 (2013).

Another teammate put it more directly:

We would have got [sic] to play against

Ohio State, the Big Ten champions. We

would have got [sic] to play against John

Havlicek, Jerry Lucas, Bobby Knight."

***(Whhat a treat that would be, to see

how good we were compared to them.

° The 1958-59 team was 24-1 and was ranked 4th nationally. Kyle

Veazey, Champions for Change: How the Mississippi State Bull-

dogs and Their Bold Coach Defied Segregation 40-41 (2012).

" Havlicek, Lucas, and Knight (as a coach) are all Hall of Fame

members. HOF, Hall of Famers, http-//tinyurl.com/y987289 (last

visited Oct. 25, 2015).

Ibid.

In September 1962, James Meredith became the

first black student at the University of Mississippi, en-

rolling under the protection of federal marshals.

Charles H. Martin, Benching Jim Crow: The Rise and

Fall of the Color Line in Sourthern College Sports,

1890-1980 245 (2010). Meanwhile, over at MSU, Coach

Babe McCarthy had another strong team that winter,

and he began lobbying both privately and in the press

for entry in the Tournament. Lenehan, at 193-194. Not

trusting the state legislature or Mississippi's College

Board,” Dean Colvard, the then-President of the

school, unilaterally overturned the so-called ‘unwritten

law’ that prevented participation in the Tournament,

and on March 2 announced (just before the final game

of the regular season) that the team would accept an

invitation “unless hindered by competent authority.”

Veazey, at 85-86 (statement by D.W. Colvard).

Events moved rapidly, and the media reported each

development.” The College Board held a special meet-

ing and rejected a motion to refuse the invitation on

March 9. Lenehan, at 202. On March 11, Loyola of Chi-

cago advanced over Tennessee Tech, 111-42, earning

the right to play the SEC representative. Veazey, at

89. MSU continued to practice in Starkville.

* Officially, the Board of Trustees of the Institutions of Higher

Education of the State of Mississippi. Lenehan, at 196.

" E.g., the Jackson Daily News reported that Georgia Tech, which

would accept the bid if MSU declined, was “practicing like mad.”

Id. at 203.

On March 13, the night before the MSU team was to

leave for the NCAA Tournament, word came down that

an injunction had been obtained that would prevent

participation in the game. Colvard and Coach McCar-

thy left Mississippi to avoid being served by county of-

ficials.* Lenehan, at 211-212. MSU chartered two

planes, on the chance one would be enjoined from take-

off, but in the end arrived in East Lansing, Michigan

for the Regionals.” Jd. at 212, 214.

Arriving at their hotel, the players were settling in-

to their rooms when one heard a thud at the window.

He recalled later:

A snowball or two [had] hit our window.

I went to the window, and if I’m not

mistaken it was three young black girls.

And I stepped out on to the balcony, and

they were kind of smiling, you know,

and they said, “Are you the guys from

Mississippi?” And I said, “Yes, we are

** *” And I don’t remember exactly

what the young lady said but it was

something to the effect of “Well, you

don’t look like a monster to me. You

look normal.”

Lenehan, at 217-218.

“ Colvard and a colleague went to Alabama; McCarthy (with the

athletic director) drove to Tennessee. Lenehan, at 211.

‘* When the plane took off, one of the players said: “Now I know

how those East Berliners feel when they make it past the Wall.”

Martin, at 251.

Loyola defeated MSU en route to winning the 1963

NCAA championship. But the story is important for

two reasons: first, the previous year, the MSU players

were forced to understand what the absence of diversi-

ty can mean. Perversely, Mississippi’s “unwritten rule”

meant that MSU’s players were punished and were not

able to test themselves against the one of the best

teams of the era (Ohio State ultimately lost in the 1962

NCAA title game). Paralleling Coach hompson’s

comments, MSU’s absence from the Tournament—and

the game that was not played against Ohio State was

“the dog-that-didn’t-bark.”””

Second, the interaction between the MSU player

and the three girls at the Michigan hotel demonstrates

what the Grutter Court was referencing: the interplay

between people with different backgrounds that can

increase perspectives. On the part of the MSU players,

it meant understanding how their home state was being

perceived in other parts of the covntry. For the three

girls in Michigan, it was that these players from Missis-

sippi—who effectively had been slandered in the local

media—were, in fact, not the “monsters” they had

heard about.

A few years later, the college basketball world

changed forever, when the 1966 NCAA Division I title

game featured an all-white Kentucky team playing a

Texas Western squad that started five African Ameri-

cans. Texas Western won, and ushered in a new era in

the sport:

* Arthur Conan Doyle, The Hound of the Baskervilles (1902).

Gary Williams” was in [Cole Field

House, on the campus of the University

of Maryland] that night. ** * [Hl]e re-

members wandering among the Ken-

tucky fans and hearing the word

“[N*****r]” over and over. * * * [Tyhe

word upset Williams. “We sat there all

night and rooted like hell for Texas

Western,” he said. “Then, after the

game, I remember hearing the Ken-

tucky people saying, ‘We gotta get us

some of them.”

Feinstein, at 128.

We can also see how perspectives can be changed in

individual student-athletes. This interplay is perhaps

best illustrated by the experiences of Earvin “Magic”

Johnson and Larry Bird, whose teams played each oth-

er for the 1979 Division I Men’s Championship, and

whose professional basketball careers were also inter-

twined. To succeed, both men needed to learn to inter-

act and rely on teammates from diverse backgrounds.

Johnson’s exposure actually began before he en-

rolled at Michigan State. When an integration program

began in Lansing, Michigan, he could not attend the

primarily black high school (Sexton High School) near

his home, and instead attended Everett High School,

which was 92 percent white. Seth Davis, When March

Amicus Williams later coached Maryland to a national title him-

self in 2002, and was elected to the Hall of Fame in 2014. HOF,

Gary Williams Biography, http-//tinyurl.com/oovowzg (last visited

Oct. 25, 2015).

Went Mad: The Game that Transformed Basketball 19-

20 (2009) (Davis). Johnson himself admitted at the time

that he was “upset * * * I wanted to go to Sexton.” Id.

at 20. Johnson’s high school coach said that initially,

“Racial tension ran high. The white kids didn’t want

them there, and the black kids didn’t want to be there.”

Ibid.

But the same coach later reminisced that:

Going to Everett over Sexton helped

Earvin down the road. I’m convinced of

that * * *. He learned how to deal with

racial problems. He mingled with white

kids * * *. He’d have been a different

person at Sexton.

Davis, at 22-23.

Bird’s experience was different. The second-best

player on the Indiana State team in that era was Carl

Nicks, an African American, who had trouble adapting

to the local community. Nicks later said:

I grew up on the South Side in Chicago,

and it’s like ninety-five percent black

there * * * I get down there with these

southern Indiana types, and I’m think-

ing, Where the hell am I? * * * It was

hard for me to let down my barriers, be-

cause I was in shock for a long time.

Davis, at 30-31.

Shortly after Nicks arrived on campus, Bird decided

to organize a squirrel hunting party, and invited Nicks.

Nicks later recalled:

I didn’t know nothing about shooting

*** When I saw a squirrel, I just

started firing * * *. And I was scared to

death because I thought there might be

raccoons or wolves running out there.

The other guys were cracking up.

Davis, at 30-31. For his part, Bird (who was famously

referred to as the “hick from French Lick’”), probably

was not exposed to African Americans other than in

connection with basketball. While squirrels in southern

Indiana were not victimized by Nicks, the team even-

tually” gelled behind Bird and Nicks, and the two ulti-

mately carried ISU to the precipice of a National

Championship. Both Bird and ‘Magic’ needed to find

ways to interact with diverse classmates and team-

mates to achieve the success that elevated them into

basketball lore.

The point here is not a history lesson—although this

is history worth remembering. Rather, these examples

highlight—sometimes in the blink of an eye, and some-

times in the course of a 40-minute game—the increased

perspectives that bring “educational benefits.” Grutter

“ Bird grew up in a rural Indiana community, but one with several

resorts; he would play basketball with the black hotel employees

after work. Earvin “Magic” Johnson & William Novak, My Life

229 (1993).

" The squirrel-hunting party occurred in Nicks’ freshman year at

ISU, in 1976-77. For academic reasons, he had to attend a commu-

nity college during 1977-78. He could have transferred to a differ-

ent D-1 school for 1978-79, but returned (after some lobbying from

Bird) to ISU, where he was the second-leading scorer on the na-

tional runner-up team. Davis, at 31-32.

v. Bollinger, 5389 U.S. 306, 330 (2003); see also Regents

of Univ. of Cal. v. Bakke, 438 U.S. 265, 312-313 (1978).

And because of the interest in college basketball, these

moments are remembered and preserved.” While of-

tentimes the “educational benefits” occur slowly, hid-

den away in classrooms or dining halls, in these in-

stances they were made visible. And both our teams,

and our academic institutions, are the better for it.

The broader perspective diversity brings in the col-

lege basketball world shows no sign of abating, and re-

cent events demonstrate that perspectives, which are

enhanced by prior exposure to diversity, continue to

evolve. And because our teams are microcosms of di-

verse university communities, our student bodies are

evolving as well. In the spring of 2013, just days after

finishing a successful career at Baylor University (in-

cluding being a three-time All-American selection),

Brittney Griner announced she was gay. Chuck Schilk-

en, Brittney Griner Acknowledges She’s Gay, says ‘Just

be who you are’, L.A. Times (Apr. 18, 2013),

http://tinyurl.com/peuv8tw. A year later, Derrick Gor-

don of UMass," announced he was gay, becoming the

first active player in a major D-1 sport to do so. Cyd

Zeigler, Derrick Gordon Finds His Freedom, Out-

Sports (Apr. 9, 2014), http://tinyurl.com/q32bhje. And

even more recently, Chris Burns, an assistant basket-

ball coach at Bryant University, made a similar an-

nouncement, becoming the only openly gay individual

among the 3,000 men’s and women’s D-1 head and as-

” As evidenced by the feature film Glory Road about the 1966

Texas Western national championship game with Kentucky.

" Now at Seton Hall.

sistant coaches. Scott Gleeson & Erik Brady, A Coach

Comes Out of the Closet, USA Today, Oct. 7, 2015, at

1C. In each instance, we see opportunities for our

teams, and our communities as a whole, to increase per-

spectives; indeed, the acceptance of gay athletes and

coaches—and gay students in the university communi-

ty—that we have seen over the past few years is evi-

dence of the value that continued diversity instills in us.

B. Team-Building On The Modern Campus

Requires Working Together With A

Diverse Group Of Student-Athletes, A

Model For Working In Today’s

Professional Environment

The Grutter Court states that “student body diver-

sity promotes learning outcomes and better prepares

students for an increasingly diverse workforce and so-

ciety, and better prepares them as professionals.” 539

U.S. at 330 (internal citations and quotation marks

omitted). Our experience supports this conclusion.

The issues around diversity that we encounter eve-

ry day do not apply just to minority student-athletes

who earn the opportunity to attend an institution of

higher learning. In 2013-14, 57.5% of all men’s and

45.9% of all women’s college basketball players were

identified as non-white. NCAA, Sport Sponsorship,

Participation and Demographics Search [Student-

Athlete Data] (2015), http://tinyurl.com/qe69gbn. For

Division 1 players during the same period, the numbers

are even more extreme: only 26.8% of men and 33.6%

of women were identified as “white.” /bid. The world

of college basketball is a “majority-minority” environ-

ment. That matters because our nation’s population—

and therefore our nation’s workplace—continues to

trend less “white.” See Sandra L. Colby & Jennifer M.

Ortman, Projections of the Size and Composition of the

U.S. Population: 2014 to 2060, U.S. Census Bureau

(Mar. 2015).

Ed Hightower was born in a small farming village in

the boot heel of Missouri, in a house with a tin roof and

no indoor plumbing; an observer described his child-

hood as having “far more in common with the agrarian

nineteenth-century of Mark Twain than the Internet

Age.” Bob Katz, The Whistleblower: Rooting for the

Ref in the High-Stakes World of College Basketball 43-

45 (2015). After second grade, Hightower began pick-

ing cotton with his parents every day in the summer.

Id. at 49-50.

Hightower’s family subsequently moved to Alton,

Illinois, where he first had the opportunity to play or-

ganized basketball. After a stellar high school career,

Hightower attended Southern Illinois—Edwardsville

in the early 1970s. When his college playing career

stalled, Hightower began to referee intramural games.

Katz, at 84-85. Upon graduation, Hightower embarked

on two high-level careers: referee and educator.

For years, Hightower’s face has been a familiar

sight to college basketball fans. Working in the Big

* Or as Senator Bill Bradley (himself a standout player at Prince-

ton) once said: “In Houston, Texas, I saw a recent story about one

Korean immigrant restaurant owner who employs Latino immi-

grant labor to prepare Chinese-style food for a predominantly

black clientele.” Bill Bradley, Cooper Union Speech on Race (Apr.

20, 1999), http:/Ainyurl.com/p69angg (starting at approximately

10:30).

Ten Conference, he often has been asked to work the

opening round of the NCAA Tournament. For refer-

ees, like teams, a good performance means another

game in the next round. Katz, at 103. Hightower has

worked a total of 12 Final Fours, including seven in a

row at one point, and four Championship games. /d. at

12.

But Hightower excels at another career. Since

1998, he has been Edwardsville’s superintendent of

schools, and his performance has been impressive: 96

percent of the 7,600 students graduate from high

school, with 64 percent attending four-year colleges.

Katz, at 94.

Several messages can be learned from Hightower’s

careers. First, when his playing career ended, he tran-

sitioned.” Second, his progression through the referee-

ing ranks to the top of that profession meant that all of

us involved in the game—coaches, players, and fans—

see an African American in a prominent position of re-

sponsibility and authority. Finally, his “other” career—

school superintendent—is another position of authority

” Preparation for the professional environment can also be seen in

the world’s largest car company, which places an emphasis on hir-

ing former student-athletes. Press Release, Enterprise Holdings,

Enterprise Rent-A-Car Looks to Hire Student-Athletes, Partners

with Career Athletes (Apr. 25, 2012), http/Ainyurl.com/qzxnwby.

There are two relevant points here. First, Enterprise clearly

feels that student-athletes help the company grow. Second, En-

terprise believes that its hiring of student-athletes helps its corpo-

rate image, and hence it emphasizes the fact in its television ad-

vertising. Anthony Crupi, Enterprise Revs Up March Madness

Spot, AdWeek (Mar. 5, 2012), http/Ainyurl.com/ppj69sp.

that seems inconceivable for a boy who otherwise

might have picked cotton all his life.

Peter Roby’s story echoes these themes. Roby

grew up in New Britain, Connecticut and became the

first person in his family to attend college when he

played basketball for Dartmouth in the 1970s. After his

playing career ended, he moved into coaching, and be-

came the head coach at Harvard at age 28. Wesley

Harris, Peter Roby Profile, [vy50.com (Jan. 25, 2007),

http-/tinyurl.com/pbg3j4r. After some time in the

business world, Roby now serves as Athletic Director

at Northeastern University, but he continues to see his

role as one of promoting diversity:

I’ve often been asked if I feel a special

obligation to serve as a role model for

athletes of color in my role as [Athletic

Director] and before as a coach at Har-

vard. While the obvious answer is yes, |

also felt it was important for me to serve

as a role model for white students as

well because it gave them the oppor-

tunity to see a black male in a position of

authority and power. Having seen it as

an undergraduate, it would be much

more natural for them to encounter it as

they started their professional ca-

reers. Important for them to expect it

and respect it.

Email from Peter Roby, Athletic Director, Northeast-

ern University to Matthew T. Henshon (Sept. 21, 2015,

5:08pm ET) (on file with Matthew T. Henshon).

Both Hightower and Roby demonstrate the im-

portance and value of diversity. Both men were unlike-

ly to attend college (or their particular schools) absent

their basketball ability; but their presence in those en-

vironments surely had influence on their peers. And

both have chosen to remain involved in college athlet-

ics, allowing the perspectives of subsequent genera-

tions of student-athletes to be broadened before they

leave campus for the professional environment. As the

public service announcement says: “There are over

400,000 NCAA student-athletes, and just about all of us

will go pro in something other than sports.” NCAA

Commercial (RefineryNYC Jan. 21, 2010), http//tiny

url.com/oj3w7fb.

C. Our Student-Athletes, Coming From

Diverse And Multi-Cultural Environ-

ments, Have Gone On To Serve Our

Nation In Varied And Important Fields

Finally, Grutter identifies the important role that

diversity plays in preparing for “good citizenship™ that

is vital to our Nation. 539 U.S. at 331 (quoting Brown

v. Bd. of Education, 347 U.S. 483, 493 (1954)). Here

too, we agree and draw on our collective experiences to

provide qualitative support.

™ Also echoed in Jackie Robinson's famous phrase: “first class citi-

zenship.” See, e.g., Letter from Jackie Robinson to Vice President

Richard Nixon (Feb. 5, 1968) in First Class Citizenship: The Civil

Rights Letters of Jackie Robinson 49 (Michael G. Long ed., 2007);

see also Letter from John F. Kennedy to Jackie Robinson (July 1,

1960) in id. at 108 (praising Robinson’s “dedication to the achieve-

ment of first-class citizenship for all Americans”).

College provides opportunities for learning, under-

standing, and appreciating other cultures, and that is

especially true for our student-athletes. Former Sena-

tor Bradley wrote that his days as a basketball play-

er—travelling the country with the Knicks in an essen-

tially “black world”—were “one of the most enlighten-

ing experiences of my life.” Bill Bradley, Time Present,

Time Past 363 (1996). While Senator Bradley’s subse-

quent career of public service seems a long way from

dusty gyms, he would, from time-to-time, draw public

parallels between his basketball playing days and the

US Senate:

After I was in the Senate about five

months, I was sitting in the Democratic

cloakroom at about 11 o’clock at night -

we were having late votes. I looked

around that cloakroom and I saw one

Senator angry, one Senator talking, one

Senator walking up and down the floor

pacing, one Senator on the telephone,

[and] one Senator clearly thinking. I

thought to myself, “You know, this isn’t

a lot different than the Knick locker

room.” At core, both are a matter of

getting different people from different

backgrounds with different experiences

and different personal agendas to agree

on a shared goal and work toward it.

That process defines both teamwork and

the public interest.

Bill Bradley, Hall of Fame Enshrinement Speech (May

2, 1983), http//tinyurl.com/nj2u3fd (starting at approx-

imately 12:55). While not every student-athlete will be

elected to public office, many will be leaders in their

communities and workplaces, and will bring their expe-

riences as members of diverse communities to these

roles, benefitting all those around them.

One such leader is Jim Cash. In 1965, Cash signed a

letter-of-intent to play at Texas Christian University,

becoming the first African-American basketball player

to do so in the Southwestern Conference. An Academic

All-American as a math major, Cash went on to earn a

Ph.D. from Purdue University and to teach at Harvard

Business School. He has served on boards for large

companies all over the country, including Microsoft,

General Electric, and State Street, and for outstanding

charities like Massachusetts General Hospital and the

Museum of Science in Boston. Highland Capital Part-

ners, James Cash, Ph.D., Special Advisor Biography,

http://tinyurl.com/psudby5 (last visited Oct. 25, 2015).

In the 1970s, Title [IX expanded opportunities for

women in college athletics, further increasing oppor-

tunity on college campuses. In the early 1980s, Robin

Roberts played basketball at Southeastern Louisiana

University, where she scored more than 1,000 points

and grabbed over 1,000 rebounds. Her broadcasting

career, both at ESPN and ABC’s “Good Morning

America,” has been a model for young women; her

courage battling both breast cancer (diagnosed in 2007)

and myelodysplastic syndrome (diagnosed in 2012) has

been inspiring for Americans of all ages. ABC News,

Robin Roberts Biography, http-//tinyurl.com/74ugq2t

(last visited Oct. 25, 2015).

Finally, we turn to another example of diversity in

our game. Adreian Payne lost his mother—a single

parent”—at age 13, was diagnosed with a learning dis-

ability as a freshman in high school, and spent much of

high school trying to catch up to grade-reading level to

be able to play college basketball. He was recruited to

Michigan State by amicus Tom Izzo, and struggled his

first few years academically and athletically. He lost

his grandmother (who became his caretaker after his

mother died) during his junior year, and he lost eight-

year-old Lacey Holsworth (a local cancer victim who

wore his jersey to every home game) during his senior

year. Jason King, The Adreian Payne Story: How

Michigan State Star Became the Ultimate Role Model,

Bleacher Report (Feb. 5, 2014), http://tinyurl.com

/3u6ryk. Payne nonetheless became a first-round draft

pick in the NBA and an Academic All-Big Ten selection

in 2014. Payne represents not only the type of diversi-

ty that we celebrate, but his overcoming of adversity is

another form of leadership. /bid.

The point is not just the ultimate career trajectory

of the individuals we have highlighted here, who are

each prominent and influential people. It is just as im-

portant to remember the other teammates and class-

mates who met, interacted with, and ultimately were

influenced by, each of these individuals—and the many

others like them. Again, our teams are microcosms of

™ Payne’s father was incarcerated for much of his childhood; stu-

dent-athletes without two parents are another element of diversi-

ty that we often see. See, ¢.g., Gary Parrish, The Shaping of Sha-

ka, CBS Sports (Dec. 3, 2014), http/Atinyurl.com/oo7319h (Amicus

Shaka Smart’s father left at age 2, returned briefly, and left again

for good during his senior year of high school; nine of the players

on his Virginia Commonwealth roster last year were likewise

raised without fathers).

the university community, and without the types of di-

versity that we support today throughout the universi-

ty community, some of these individuals—and the les-

sons that they taught and learned simply by being part

of the student body—would be lost. And our Nation

would be the worse for it.

IT. RETREATING ON DIVERSITY COULD HAVE

DIRE CONSEQUENCES

Our occupation gives us a unique perspective on the

challenge facing this Court today. We stand with one

foot in the halls of academia, and another in the urban

areas where opportunity is too often lacking. For us,

places like Ferguson, Missouri and Baltimore, Mary-

land are not just troubling images on the nightly news,

but places where we go to recruit prospective student-

athletes. See Julie Bosman & Alan Blinder, Missouri

Orders Nightly Curfew to Quell Looting, N.Y. Times,

Aug. 17, 2014, at Al; Sheryl Gay Stolberg, Clashes

Rock Baltimore After Funeral; Curfew Is Set, N.Y.

Times, Apr. 28, 2015, at Al. Events like the recent ra-

cially-motivated massacre in a Charleston, South Caro-

lina church become somber discussions with our stu-

dent-athletes. See Richard Fausset, Open Doors and

Lingering Pain at Charleston Church Where 9 Were

Killed, N.Y. Times, Oct. 19, 2015, at Al.”

™ This dialogue is nothing new. Dean Smith again:

I talked often to my players about Dr. King and

quoted him frequently * * *. Two [quotes] that

come to mind are “Those who sit at rest buy

their quiet with disgrace” and “Injustice any-

where is a threat to justice everywhere.”

Smith, at 96.

We can also see that although sports are powerful

symbols, they are not enough by themselves to change

a society. Our teams are often highly visible examples

of diversity, but they cannot represent gi/—or even

most—of the diversity in a community, academic or

otherwise. Shortly after California passed Proposition

209, which prohibits the use of race in admission, the

freshman class at UCLA had just 96 African Americans

out of a class of 5,000, including recruited athletes.

Rebecca Trounson, A Startling Statistic at UCLA, L.A.

Times, June 3, 2006, at Al.

The risk of a UCLA-like outcome—that African-

American admittance is gutted and effectively the only

“diversity” on campus is from recruited athletes—is a

real and troubling prospect if this Court rejects the

UT-Austin admissions program. The UCLA outcome

will mean that both minorities and non-minorities will

lose out—both groups will fail to obtain the values that

we have been discussing above. And it is not enough to

have the only diversity be on a court or ballfield, as we

can see in other parts of the world.

France hosted the soccer World Cup in 1998 and

fielded a team that seemed to represent a new, multi-

cultural French populace. Les Bleus were led by

Zinedine Zidane, son of Algerian immigrants, and fea-

tured Thierry Henry, whose mother came from Marti-

nique, and Lilian Thuram, who was born in Guadeloupe

in the Caribbean. While Jean Marie Le Pen, leader of

the right-wing National Front, criticized” the team pri-

* Le Pen described the players as “foreign mercenaries who ‘don't

sing the Marseillaise, or ignore it.’” Simon Kuper, Racism Lives

or to the tournament, the rest of the country embraced

it, especially after the team won the World Cup:

Henry, who was the new kid to the

squad at 20 years old, still recalls, wide-

eyed, an elderly French woman thank-

ing him for giving the nation its greatest

moment since the Liberation.

Andrew Hussey, Les Temps Modernes, The Observer,

Apr. 2, 2006, at 24.

French politicians raced to embrace the victorious

team, although the sentiment seemed more-than-a-

little convenient:

[E]ven Jacques Chirac, a haughty clas-

sical bourgeois of the right, wore the

colours of his national team; on the left,

the former Minister for Culture, Jack

Lang, known mostly for highbrow tastes

and disdain for proletarian culture, said

that he had dreamed of such a moment

throughout his career.

Hussey, at 24.

France, it should be noted, was officially a “color-

blind’™ society, and had no public policies “target[ing]

benefits or confer[{ing] recognition on groups defined as

races.” Erik Bleich, Race Policy in France, Brookings

Institution (May 2001), http://tinyurl.com/ppopgyl.

On in France as World Cup Win Fades, Financial Times, Nov. 12,

2006, at 6.

* Consistent with Petitioner’s position here.

Nor were any more-inclusive policies proposed, or

passed, in the wake of the World Cup victory.

Diversity remained an enduring French value only

on the soccer pitch. The nation as a whole remained

highiy-segregated and polarized. This tension was

highlighted in an October 2001 match (a “friendly”)

with Algeria. Scheduled just a few weeks after 9/11,

kids waving Algerian flags taunted Zidane as a “trai-

tor”; the match was halted in the second half when fans

poured on to the pitch. Zidane later said it was the

“worst day in my career.” Hussey, at 24.

A year later, Le Pen finished second in the first

round of French Presidential elections. Both the team

and its leader (Zidane) spoke out against the ugly rac-

ism in which Le Pen and others in the National Front

had engaged. While Le Pen did not win the second

round, the fact that he came as close as he did showed

the fault lines within French society. Kuper, at 6.

In fact, France’s color-blind policies likely precluded

opportunities for immigrants in different fields:

Patrick Weil, political scientist at the

university of Paris 1-Sorbonne, [said]

***: “T never thought the World Cup

’98 [win] was such a big event, because

immigrants had always been presented

as successful in sport, culture, music.

The problem was not in these fields but

in business, politics.”

Kuper, at 6.

Moreover, just in the past year, France has seen a

marked increase in racial and religious-based violence.

In January 2015, 17 people were killed at the editorial

offices of the magazine “Charlie Hebdo,” and a subse-

quent attack at a Jewish supermarket. Andrew Hig-

gins & Dan Bilefsky, French Gunmen Die in Raids,

N.Y. Times, Jan. 10, 2015, at Al. In June 2015, there

was an explosion and beheading at an American-owned

chemical plant. Aurelien Breeden & Alissa J. Rubin,

French Authorities Hold Suspect in Beheading and

Explosion at Chemical Plant, N.Y. Times, June 27,

2015, at A8. While this high-profile violence grabbed

the world’s attention, there has been decades-long ten-

sion between the new immigrant communities and the

rest of French society. The polarization of French soci-

ety is both racial and religious; in 2014 in France, more

than half of all “racist attacks targeted Jews.” Jeffrey

Goldberg, Js It Time for the Jews to Leave Europe?,

The Atlantic 63, 64 (Apr. 2015); see also Youssef M. Ib-

rahim, ‘Arab Girls’ Veils at Issue in France, N.Y.

Times, Nov. 12, 1989, at A5; Elaine Sciolino, Jn French

Suburbs, Same Rage, but New Tactics, N.Y. Times,

Nov. 28, 2007, at Al.

The lesson to be learned from events in France is

that diversity only in sports is not enough. While

French politicians paid lip-service to Les Bleuws, the rest

of French society remained unchanged. And when the

glow from the World Cup faded, the ugly polarization

emerged. Although Le Pen has ceded the leadership of

the National Front to his daughter, his ideas remain an

uncomfortable part of the French polity.

But it is true that sports can help change a culture,

if the culture is ready to change and the leadership is

committed. In that case, sports can strengthen and ex-

pand a commitment to diversity. One political leader

who understood the power of sports, working in con-

nection with government, to help effect change was

Nelson Mandela. Mandela understood that sports could

symbolize, embody and stimulate change in the larger

society. Mandela once said:

Sport has the power to change the

world. It has the power to inspire, the

power to unite people that little else

has. It is more powerful than govern-

ments in breaking down racial barriers.

John Carlin, Playing the Enemy: Nelson Mandela and

the Game that Made a Nation 4 (2008).

Rugby was wildly popular among whites during the

apartheid years, and not surprisingly extremely un-

popular among the black majority; one of the key suc-

cesses of the African National Congress (ANC) was the

successful enactment of a rugby boycott in the 1980s.

Carlin, at 66. Mandela, of course, remained at Robben

Island during this period, part of the 27 years he was

imprisoned, much of it on death row. Nelson Mandela,

Long Walk to Freedom 381 (19965).

After his release from prison in 1990, Mandela be-

gan negotiating the transfer of power from the white-

only regime. He understood that trust needed to be

established for the minority white government to cede

power in an environment where violence was in the air,

and potentially coming from both sides. He was able to

use the promise of a return to rugby international com-

petitions—starting with a 1992 match against New

Zealand in Johannesburg—to help smooth the transi-

tion. Carlin, at 112.

When South Africa was offered the chance to host

the 1995 Rugby World Cup, Mandela saw a chance to

continue the healing. To his ANC colleagues who did

not trust the whites, Mandela argued that “rugby was

worth, as he put it, several battalions. ‘My idea was to

ensure that we got the support of the Afrikaners, be-

cause—as I kept reminding people—rugby, as far as

Afrikaners are concerned, is a religion.’” Carlin, at 113.

South Africa hosted the 1995 World Cup, a competi-

tion that culminated with the home Springboks playing

New Zealand, the defending world champions. Man-

dela, then newly-installed President, came to see the

match, as expected. What was surprising was what he

was wearing:

He was wearing the green Springbok

cap and the green Springbok jersey

***. The symbolism at play was mind-

boggling. For decades Mandela had

stood for everything white South Afri-

cans most feared; the Springbok jersey

had been the symbol, for even longer, of

everything black South Africans most

hated.

Carlin, at 221-223.

Morne’ du Plessis, a former captain of the Spring-

boks during the “bad old days,”” recalled his reaction

when Mandela arrived at the stadium to thunderous

crowds:

” His father had also been the Springbok captain in the 1940s.

Carlin, at 78-79.

I don’t think [’ll ever experience a mo-

ment like that again. It was a moment

of magic, a moment of wonder. It was

the moment I realized that there was a

chance this country could work.

Carlin, at 221. For Mandela, rugby—more specifically

the World Cup held in South Africa—was the vehicle to

help unify and heal a post-apartheid nation. By wear-

ing the Springbok uniform, he had gone more than

halfway, in effect saying, “We are all South Africans—

white and black alike. We are all on the same team.”

Unlike the cynicism of the French politicians, Man-

dela’s embrace of the Springboks had enormous per-

sonal meaning; he was willing to forgive, both on behalf

of his people, but also on behalf of himself and the years

that he lost on Robben Island. It is also not unim-

portant that Mandela’s embrace of the team occurred

prior to the final—a game in which the Springboks

were massive underdogs.” Jd. at 207. And while South

Africa’s problems and challenges remain, two decades

later, the nation has made remarkable progress from

where it was in the early 1990s.

If South African rugby shows the power of sport,

French soccer warns us of its limits. If we move to pol-

icies that echo UCLA’s admissions in 2006, we risk hav-

ing teams like Les Bleus—with paper-thin diversity

and without the underlying understanding that a mod-

ern nation needs. It is the knitting together of our dif-

” Mandela learned the players’ names and positions as well; the

authenticity of Mandela’s actions may have been influenced, at

least in part, by his own athletic background, as he was an amateur

boxer as a young man. Carlin, at 8.

ferences—and the appreciation and understanding that

comes from the presence of “real” diversity—that al-

lows true growth.

Finally, we turn back from international sport to

our own Nation. Tolerance and diversity are not “con-

servative values” or “liberal values.” They are not

“Democratic values” or “Republican values.” They are

not “black values” or “white values.” They are Ameri-

can values.

And they are values that we respect, whenever we

see them in action, on the basketball court, or anywhere

else in American life. Here’s how President Gerald R.

Ford was eulogized by then-President George W. Bush:

Long before he was known in Washing-

ton, Gerald Ford showed his character

and his leadership. As a star football

player for the University of Michigan,

he came face to face with racial preju-

dice. When Georgia Tech came to Ann

Arbor for a football game, one of Michi-

gan’s best players was an African-

American student named Willis Ward.

Georgia Tech said they would not take

the field if a black man were allowed to

play. Gerald Ford was furious at Geor-

gia Tech for making the demand and at

the University of Michigan for caving in.

He agreed to play only after Willis

Ward personally asked him to. The

stand Gerald Ford took that day was

never forgotten by his friend. And Ger-

ald Ford never forgot that day either.

President George W. Bush, Eulogy for President Ford

(Jan. 2, 2007).

CONCLUSION

We request that this Court honor the values of di-

versity and inclusion and affirm the judgment below.

Respectfully submitted,

Richard D. Batchelder, Jr. Matthew T. Henshon

Samira A. Omerovic HENSHON KLEIN LLP

Ropes & GRAY LLP

Counsel for Amici

NOVEMBER 2015

APPENDIX

Lennie Acuff

Natasha Adair

Jody Adams

Cy Alexander

Carol Alfano

Anthony Alfaro

Dana Altman

Tommy Amaker

Mike Anderson

Anthony Andre’

Jana Ashley

Karen Aston

Scott Ballard

Karen Barefoot

Rod Barnes

Janet Berry

David Bike

Ed Bilik

Chris Boettcher

Joan Bonvicini

Robert Booher

Mark Boyle

Todd Anthony Bozeman

Anthony Bozzella

Tracey Braden

Mike Brey

Charles Brock

William Brown

Al Bruehl

Douglas Bruno

Michael Buonaguro

Bob Burchard

James F. Burson

Buffie Burson

Jason Burton

Kevin J. Byrne

Nikki Caldwell

Robert B. Campbell

Jackie Carson

Jamion Christian

Mark Christner

Dale Clayton

Sherri Coale

Bill Coen

Jon Coffman

Cheryl Cole

Bobby L. Collins

Rick Cooper

Paul Cormier

Bill Courtney

Kerry Cremeans

Mick Cronin

Scott Cross

Tricia Cullop

Pat Cunningham

Fristy Curry

Kristina Danella

Matt Daniel

June Daugherty

Barry Davis

Johnny Dawkins

Laquanda Dawkins

Mike DeGeorge

Kathy Delaney-Smith

Donna Devlin

Tracy Dildy

Jamie Dixon

Steve Donahue

Matthew Donohue

Seott Drew

Jim Ducey

Matthew Ducharme

Chancellor Dugan

Lin Dunn

BJ Dunne

Mike Durbin

Mark Edwards

Angel Elderkin

Brian Ellerbe

Jessie Evans

Rob Evans

Bill Evans

Joseph Farroba

Dennis Felton

Jose Fernandez

Stephanie Flamini

Jim Flanery

Lisa Fortier

Terry Fowler

Juli Fulks

Tim Fusina

Fran Garmon

Scott Garson

Larry M. Gipson

Randy Gipson

Brian Good

Mark Gottfried

Michael Grant

JD Gravina

Seth Greenberg

Karen Haag

Nathan Hager

William Hahn

Frank Haith

J. Leonard Hamilton

Dave Hammer

Jim Haney

Ray Harper

Joe Harrington

LJ. Harrington

Sam Harris

Booker Harris

Shann Hart

Dan Hays

Nicci Hays

Mitch Henderson

Paul Hewitt

Linda Hill-Macdonald

Melissa Hodgdon

Jorja Hoehn

Chris Holtmann

Jennifer Hoover

Ben Howland

Shannon Howley

Larry Hunter

Ronald Hunter

Bobby Hurley

John Hurley

Jill Hutchison

Jamaal Jackson

Darry] Jacobs

Michael D. Jarvis Sr.

Rob Jeter

Erik Johnson

Sydney Johnson

Trent Johnson

James Jones

Jeffrey A. Jones

Michael Jones

Edward Joyner Jr.

Steve Joyner Jr.

Sarah Jurewicz

Daniel J. Kaspar

Kerry Keating

Ernie Kent

Allison Kern

Carolyn Kieger

Rob Krimmel

Lon Kruger

Robbie Laing

Greg Lansing

Jim Larranaga

Anthony Latina

David Leitao

Lance Loya

Russell Loyd

Bobby Lutz

Dr. Claudie J. Mackey

Mark Macon

Maureen Magarity

Daniel R. Manning

Patricia Manning

Sandra Marbut

Matt Margenthaler

Ryan Marks

Phil Martelli

Francisco Martin

Rollie Massimino

Jody May

Ryan McAdams

Ray McCallum

Caroline McCombs

Mike McConathy

Robert L. McCullum

Greg McDermott

Timothy McDonald

Melissa McFerrin

Ritchie McKay

Marvin Menzies

Danny Miles

Eldon Miller

Faith Mimnaugh

Reggie Minton

Page Moir

Mike Montgomery

Chris Mooney

John Moore

Steve Moore

Barbara Morgan

Don Nelson

Ron Newton

David Niland

Nate Oats

Danielle O’Banion

Stephanie Oliver

Daron Pa «

Andy Partee

Joe Pasternack

Joshua Pastner

Katie Pate

Bruce Pearl

Harry Perretta

Jack Perri

Michael Perry

Vann Pettaway

Dave Pilipovich

Summer Quesenberry

Dan Raymond

Kyle Rechlicz

Jennifer Reimer

Michael D. Rhoades

David J. Richman

William Robinson

Susan Robinson Fruchti

Lorenzo Romar

Tom Rose

Monté Ross

Aaron Roussel!

Sheila A. Roux

William Francis Ryan Jr.

Yvonne Sanchez

Jeff Santarsiero

Travis Schwab

Jake Scott

Bill Self

Alan Seretti

Carrie Seymour

Casey Shoup

Pat Skerry

Al Skinner

Kevin Small

Shaka Smart

Audra Smith

David Smith

Orlando G.G. Smith

Mary Beth Spirk

Trisha Stafford-Odom

Elizabeth Stanley

Harry Statham

Gary Stewart

Nate Stewart

Lisa Stockton

Adam Stockwell

Dedrique Taylor

Christy Thomaskutty

Jace Thompson

John M. Thompson

John Thompson III

Kelly Thompson

John Thurston

Wayne Tinkle

Arline Trader

Nicole Trawick

Jonathan Tsipis

Mark Turgeon

Charli Turner Thorne

Brian Vraney

Will Wade

Ken Wagner

Kendal Wallace

Dymetrius Ware

Cliff Warren

Melvin Watkins

James Wearden

Joi Williams

Robert Williams

Willis Wilson

Jay Wright

Ernie Zeigler

The individual amici listed on the cover page and in this ap-

pendix are participating in their individual capacity and not

on behalf of any affiliated college or university.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.