FISHER v. UNIVERSITY OF TEXAS AT AUSTIN
ABIGAIL NOEL FISHER; RACHEL MULTER MICHALEWICZ, Plaintiffs-Appellants
v.
UNIVERSITY OF TEXAS AT AUSTIN; DAVID B. PRYOR, Executive Vice Chancellor for Academic Affairs in His Official Capacity; BARRY D. BURGDORF, Vice Chancellor and General Counsel in His Official Capacity; WILLIAM POWERS, JR., President of the University of Texas at Austin in His Official Capacity; BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM; R. STEVEN HICKS, as Member of the Board of Regents in His Official Capacity; WILLIAM EUGENE POWELL, as Member of the Board of Regents in His Official Capacity; JAMES R. HUFFINES, as Member of the Board of Regents in His Official Capacity; JANIECE LONGORIA, as Member of the Board of Regents in Her Official Capacity; COLLEEN McHUGH, as Member of the Board of Regents in Her Official Capacity; ROBERT L. STILLWELL, as Member of the Board of Regents in His Official Capacity; JAMES D. DANNENBAUM, as Member of the Board of Regents in His Official Capacity; PAUL FOSTER, as Member of the Board of Regents in His Official Capacity; PRINTICE L. GARY, as Member of the Board of Regents in His Official Capacity; KEDRA ISHOP, Vice Provost and Director of Undergraduate Admissions in Her Official Capacity; FRANCISCO G. CIGARROA, M.D., Interim Chancellor of the University of Texas System in His Official Capacity, Defendants-Appellees.
No. 09-50822.
United States Court of Appeals, Fifth Circuit.
Filed: January 18, 2011.
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
We consider a challenge to the use of race in undergraduate admissions at the University of Texas at Austin. While the University has confined its explicit use of race to the elements of a program approved by the Supreme Court in Grutter v. Bollinger,1 UT's program acts upon a university applicant pool shaped by a legislatively-mandated parallel diversity initiative that guarantees admission to Texas students in the top ten percent of their high school class. The ever-increasing number of minorities gaining admission under this Top Ten Percent Law casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like admissions program, the Law's own legal footing aside. While the Law's ultimate fate is not the fare of this suit, the challenge to the Grutter plan here rests upon the intimate ties and ultimate confluence of the two initiatives. Today we affirm the constitutionality of the University's program as it existed when Appellants applied and were denied admission. Abigail Fisher and Rachel Michalewicz, both Texas residents, were denied undergraduate admission to the University of Texas at Austin for the class entering in Fall 2008. They filed this suit alleging that UT's admissions policies discriminated against them on the basis of race in violation of their right to equal protection under the Fourteenth Amendment and federal civil rights statutes.2 They sought damages as well as injunctive and declaratory relief. Proceeding with separate phases of liability and remedy, the district court, in a thoughtful opinion, found no liability and granted summary judgment to the University. The procedural posture of this case defines the scope of our review. There are no class claims and both students deny intention to reapply to UT.3 It follows that Fisher and Michalewicz lack standing to seek injunctive or forward-looking declaratory relief.4 This principle is rote. To obtain forward-looking equitable remedies, a plaintiff must show she faces imminent threat of future injury.5 Without that threat, these two applicants only have standing to challenge their rejection and to seek money damages for their injury.6 Our focus will be upon the process employed by UT to admit freshmen when Fisher and Michalewicz applied for the class entering Fall 2008, looking to earlier and later years only as they illuminate the rejection of these two applicants.7 Our task is burdened by the reality that we are examining a dynamic program administered by a large university subject to government oversight. Indeed, the first of UT's periodic five-year reviews was to begin in the fall of 2009, a review that must engage an array of variables, including an ever-present question of whether to adjust the percentage of students admitted under the two diversity initiatives. I. GRUTTER V. BOLLINGERWe begin with Grutter v. Bollinger because UT's race-conscious admissions procedures were modeled after the program it approved. In rejecting constitutional challenges to the University of Michigan Law School's admissions program, Grutter held that the Equal Protection Clause did not prohibit a university's "narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."8 Mapping on Grutter, UT evaluates each application using a holistic, multi-factor approach, in which race is but one of many considerations. In granting summary judgment to UT, the district court found that "it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter," and "as long as Grutter remains good law, UT's current admissions program remains constitutional."9 Laying aside the Top Ten Percent Law, that observation is indisputably sound.10
2. Fisher v. Univ. of Tex. at Austin,645 F.Supp.2d 587, 590 (W.D. Tex. 2009) (citing U.S. CONST. amend. XIV, § 1, and 42 U.S.C. §§ 1981, 1983, and 2000d et seq.). 3. Like all Texas residents, Appellants could attend UT Austin as transfer students if they first enrolled in a participating UT system school and met the standards required by the Coordinated Admissions Program, discussed in greater detail below. Instead, Appellants permanently enrolled at other institutions.
4. See Defunis v. Odegaard,416 U.S. 312, 319 (1974) (per curiam) (dismissing for lack of standing a suit that challenged a law school admissions policy because the plaintiff would "never again be required to run the gantlet of the Law School's admissions process"). 5. Adarand Constructors, Inc. v. Peña,515 U.S. 200, 201-11 (1995); City of L.A. v. Lyons,461 U.S. 95, 105-10 (1983). 6. See Lyons, 461 U.S. at 105—07.
7. Cf. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 711 n.1 (relying on data from before the district court record closed, even after newer data had become available).
8. Grutter, 539 U.S. at 343.
9. Fisher, 645 F. Supp. 2d at 612—13; see also id. at 613 ("If the Plaintiffs are right, Grutter is wrong." (internal quotation marks omitted)).
10. In practice, the admissions systems of Michigan Law School and UT differ because UT's automatic admission of the top ten percent of Texas high school seniors "largely dominates [its] admissions process." Fisher, 645 F. Supp. 2d at 595. We discuss the impact of the Top Ten Percent Law in greater detail below.
12. See Grutter, 539 U.S. at 325 (citing Bakke, 438 U.S. at 315 (opinion of Powell, J.)).
13. Id. at 314.
14. Id. at 338 (brackets and internal quotation marks omitted).
15. Id. at 316 (internal quotation marks omitted).
16. Id. at 325; see id. at 329—30.
17. Id. at 380 (Rehnquist, C.J., dissenting).
18. Id. at 329—30 (opinion of the Court).
19. Id. at 330 (internal quotation marks omitted).
20. 438 U.S. at 312 (opinion of Powell, J.) (internal quotation marks omitted).
21. Id. at 314.
22. Grutter, 539 U.S. at 330 (internal quotation marks omitted).
23. Id. (internal quotation marks omitted).
24. Id. (internal quotation marks omitted).
25. Id.
26. Id. (internal quotation marks and brackets omitted).
27. Id. at 332.
28. Id.
29. Id. at 332—33. The Court further explained:
[E]ducation [is] pivotal to sustaining our political and cultural heritage with a fundamental role in maintaining the fabric of society. . . . [T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms that "[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective." And, "[n]owhere is the importance of such openness more acute than in the context of higher education."
Id. at 331—32 (final two alterations in original; citations and some internal quotation marks omitted).
30. Id. at 332.
31. Id. at 337.
32. Id. (quoting Bakke, 438 U.S. at 317 (opinion of Powell, J.)).
33. Parents Involved, 551 U.S. at 722; see also Grutter, 539 U.S. at 337 ("The importance of this individualized consideration in the context of a race-conscious admissions program is paramount.").
34. Grutter, 539 U.S. at 338.
35. Id. at 334 (citing Bakke, 438 U.S. at 315—16 (opinion of Powell, J.)).
36. Id. at 322; see Bakke, 438 U.S. at 289 (opinion of Powell, J.).
38. Id.
39. Grutter, 539 U.S. at 342.
40. Id. at 339 (quoting Wygant v. Jackson Bd. of Educ.,476 U.S. 267, 280 n.6 (1986)). 41. Id. at 343.
42. Fisher, 645 F. Supp. 2d at 590.
43. Id. at 596.
44. Marta Tienda et al., Closing the Gap?: Admissions & Enrollment at the Texas Public Flagships Before and After Affirmative Action 52 tbl.5 (Tex. Higher Educ. Opportunity Project Working Paper), available at http://theop.princeton.edu/workingpapers.html. Unlike the current Top Ten Percent Law, UT's earlier policies did not mandate the admission of all top ten percent students. Thus, even though a top ranking at a predominantly minority high school would contribute to a higher AI score, the AI alone could not effectively serve as a proxy for race because, on average, minorities received lower standardized test scores.
45. Regents of the Univ. of Cal. v. Bakke,438 U.S. 265 (1978). Four Justices would have held that universities have broad authority to consider race in admissions in order to "remedy disadvantage cast on minorities by past racial prejudice." Id. at 325 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.). Four other Justices would have held that Title VI of the Civil Rights Act of 1964 bars federally funded universities from making any admissions decisions on the basis of race. Id. at 417—18 (opinion of Stevens, J., joined by Burger, C.J., and Stewart and Rehnquist, JJ.). Justice Powell cast the decisive vote in a separate opinion—not joined in full by any other Justice—that invalidated the racial set-aside in the admissions program then before the Court, but reasoned that it would be constitutional for a university to consider race as one facet of diversity in a flexible review that treated each applicant as an individual. Id. at 316—19 (opinion of Powell, J.). Because none of these positions carried the support of a majority of the Court, it was not completely clear which (if any) of these rationales was controlling. See Grutter, 529 U.S. at 322—25 (2003) (recounting this history and the subsequent confusion among lower courts). 46. Records do reflect that at UT's law school during this time, minority and nonminority applicants were reviewed by separate admissions committees and were subject to different grade and test-score cutoffs. See Hopwood v. Texas,78 F.3d 932, 935—38 (5th Cir. 1996). 47. Univ. of Tex. at Austin, 1998—1999 Statistical Handbook. Minority enrollment was fairly consistent from 1989 until 1993, with some slight decreases in 1994 and 1995. UT publishes its Statistical Handbook annually, and these handbooks are cited throughout the district court record. See Univ. of Tex. at Austin Office of Admissions, Diversity Levels of Undergraduate Classes at The University of Texas at Austin 1996—2002 (2003) (Dist. Ct. Dkt. No. 96, Tab 8, Ex. B), at 5, 6; Univ. of Tex. at Austin, Proposal to Consider Race and Ethnicity in Admissions (2004) (Dist. Ct. Dkt. No. 96, Tab 11, Ex. A), at 30; Univ. of Tex. at Austin Office of Admissions, 2008 Top Ten Percent Report (Dist. Ct. Dkt. No. 94, Ex. 9), at 4 [hereinafter 2008 Top Ten Percent Report]. Handbooks dating back to 1998 are available online at http://www.utexas.edu/academic/ima/stat_handbook/.
49. Id. at 944-48.
50. See Tex. Att'y Gen. Letter Op. No. 97-001 (1997).
51. Fisher, 645 F. Supp. 2d at 591.
52. Id. at 591-92.
53. Id. at 592.
54. Diversity Levels of Undergraduate Classes at The University of Texas at Austin 1996-2002 (2003) (Dist. Ct. Dkt. No. 96, Tab 8, Ex. B), at 6.
55. 1998-1999 Statistical Handbook.
56. TEX. EDUC. CODE § 51.803 (1997). The Top Ten Percent Law was amended, during the course of this litigation, to cap the number of students guaranteed admission at UT Austin to 75% of the seats available to Texas residents. Id. § 51.803(a-1) (2010). The cap is effective starting with admissions to the Fall 2011 entering class and is currently scheduled to end with admissions to the Fall 2015 entering class.
57. 2008 Top Ten Percent Report at 6 tbl.1.
58. Id. at 8; see also Fisher, 645 F. Supp. 2d at 593 (reporting statistics for total admitted applicants, both Texas and non-Texas residents).
59. Tienda et al., supra note 44, at 52 tbl.5.
61. Minutes of the Board of Regents of the University of Texas at Austin, Meeting No. 969, Aug. 6-7, 2003 (Dist. Ct. Dkt. No. 94, Ex. 19, Tab A), at 4.
62. Fisher, 645 F. Supp. 2d at 593. Classes with only one student of a given minority were thought to be just as troubling as classes with zero students of that minority because a single minority student is apt to feel isolated or like a spokesperson for his or her race. Id. at 602-603; see also Grutter, 539 U.S. at 319.
63. Lavergne Aff. (Dist. Ct. Dkt. No. 102, Tab B) ¶¶ 4-5.
64. Walker Aff. (Dist. Ct. Dkt. No. 96, Tab 11) ¶ 12.
65. Dist. Ct. Dkt. No. 96, Tab 11, Ex. A [hereinafter 2004 Proposal].
66. Id. at 1 (internal quotation marks omitted); see also Fisher, 645 F. Supp. 2d at 603.
67. 2004 Proposal at 23 (quoted in Fisher, 645 F. Supp. 2d at 602).
68. Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602).
69. Id. (quoted in Fisher, 645 F. Supp. 2d at 602).
70. Fisher, 645 F. Supp. 2d at 594.
71. Id. This particular ranking is somewhat limited in its significance, however, as the results are based on raw tabulations of the number of degrees conferred upon minority students. Large schools, like UT, are more likely to be ranked higher simply because they graduate a greater number of students (both minorities and non-minorities). See Victor M.H. Borden, Top 100 Undergraduate Degree Producers: Interpreting the Data, DIVERSE ISSUES IN HIGHER EDUC., June 12, 2008.
72. Statistical Handbook 2004-2005, at 22 tbl.S13A; Statistical Handbook 2009-2010, at 16 tbl.S12 (data for fall enrollment only). For fall and summer numbers combined, see 2008 Top Ten Percent Report at 6.
73. Admission decisions for domestic non-Texas residents and international applicants are made solely on the basis of their Academic and Personal Achievement Indices.
74. 2008 Top Ten Percent Report at 8 tbl.2, 9 tbl.2b. Table 2 shows 8,984 top ten percent students were admitted in 2008. The UT Associate Director of Admissions reported that 10,200 admissions slots are available for Texas residents, leaving 1,216 slots for non-top ten percent students. Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12.
75. Id. at 7 tbl.1a. In 1998, out of a class that included 6,110 Texas residents, only 2,513 enrolled freshmen were admitted under the Top Ten Percent Law.
76. The district court found that, on "relatively rare" occasions, a holistic review of the entire application may result in the University admitting an applicant to the fall class even though his or her AI or PAI scores fall just shy of the official cutoff. See Fisher, 645 F. Supp. 2d at 599.
77. Fisher, 645 F. Supp. 2d at 596. The precise formulas used to calculate an applicant's Academic Index are derived by regression analysis and vary by intended major. For instance, the formula for prospective engineering majors gives greater weight to math scores, whereas the formula for prospective liberal arts majors gives somewhat greater weight to verbal scores. See 2004 Proposal at 27 & n.5. The differences in these formulas are immaterial to the present case.
78. In other words, no applicant is denied admission based purely on AI score without having her file reviewed by at least one admissions reader and her individual circumstances considered.
79. Fisher, 645 F. Supp. 2d at 597.
80. PAI = [(personal achievement score * 4) + (average essay score * 3)] / 7.Id. at 597 n.7.
81. Id. at 591-592, 597.
82. Id. at 597; see Univ. of Tex. at Austin Office of Admissions, Inter-Rater Reliability of Holistic Measures Used in the Freshman Admission Process of the University of Texas at Austin (Feb. 22, 2005) (Dist. Ct. Dkt. No. 94, Ex. 10).
83. Fisher, 645 F. Supp. 2d at 597.
84. Walker Aff. (Dist. Ct. Dkt. No. 96, Tab 11) ¶ 15.
85. Fisher, 645 F. Supp. 2d at 597.
86. See id. at 608.
87. In addition, because of special portfolio, audition, and other requirements, the Top Ten Percent Law does not apply to the School of Architecture, the School of Fine Arts, and certain honors programs.
88. Thus, for example, the School of Business granted automatic admission only to those students who graduated in the top 4% of their high school class and selected a business major as their first choice. Ishop Dep. (Dist. Ct. Dkt. No. 96, Tab 2) at 32.
89. Fisher, 645 F. Supp. 2d at 598, 609.
90. Id. at 597.
91. Id. at 597-598.
92. Id. at 603 (quoting Grutter, 539 U.S. at 319-20). More specifically, as described in the 2004 Proposal, one purpose of UT's race-conscious policy is "`to provide an educational setting that fosters cross-racial understanding, provides enlightened discussion and learning, and prepares students to function in an increasingly diverse workforce and society.'" 2004 Proposal at 25 (quoted in Fisher, 645 F. Supp. 2d at 603). Another is to produce "`future educational, cultural, business, and sociopolitical leaders.'" Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). And because Texas's population is uniquely diverse—"[i]n the near future, Texas will have no majority race"—"`tomorrow's leaders must not only be drawn from a diverse population[,] but must also be able to lead a multicultural workforce and to communicate policy to a diverse electorate.'" Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). As the state's flagship public institution, UT determined that it "`has a compelling educational interest to produce graduates who are capable of fulfilling the future leadership needs of Texas.'" Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602).
93. Fisher, 645 F. Supp. 2d at 603 (quoting Grutter, 539 U.S. at 333).
94. Grutter, 539 U.S. at 328.
95. Id. at 326, 328 (citing Adarand, 515 U.S. at 227); see also Parents Involved, 551 U.S. at 720.
96. Grutter, 539 U.S. at 327; see also id. at 328 ("The Law School's educational judgment. . . is one to which we defer. . . . Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits.").
97. Id. at 328.
98. Id. at 329.
99. Bakke, 438 U.S. at 312 (opinion of Powell, J.).
100. Grutter, 539 U.S. at 328.
101. Id. at 327.
102. Id. at 329 ("[G]ood faith on the part of a university is presumed absent a showing to the contrary." (internal quotation marks omitted) (quoting Bakke, 438 U.S. at 318-19 (opinion of Powell, J.))).
103. Id. at 333-34.
104. Ricci v. DeStefano,129 S.Ct. 2658, 2675 (2009) (some internal quotation marks omitted) (quoting Richmond v. J.A Croson Co.,488 U.S. 469, 500 (1989), in turn quoting Wygant v. Jackson Bd. of Educ.,476 U.S. 267, 277 (1986) (plurality)). 105. Id. at 2664.
106. Id.; see 42 U.S.C. § 2000e-2(k)(1)(A)(i) (codifying Griggs v. Duke Power Co.,401 U.S. 424 (1971)). 107. See 42 U.S.C. § 2000e-2(a)(1).
108. Ricci, 129 S. Ct. at 2664.
109. Id. at 2676.
110. Id.
111. Id. at 2676. We note that these statutory constraints are not present in the context of university admissions programs.
112. 488 U.S. at 500.
113. 476 U.S. at 277.
114. Id. at 277-278.
115. Croson, 488 U.S. at 499.
116. 551 U.S. 701 (2007).
117. See id. at 735 (quoting Grutter, 539 U.S. at 339).
118. Grutter, 539 U.S. at 329-30 (quoting Bakke, 438 U.S. at 308 (opinion of Powell, J.)).
119. Id. at 330 (quoting Freeman v. Pitts,503 U.S. 467, 494 (1992)). 120. Parents Involved, 551 U.S. at 723.
121. Appellants argue that UT's "head-in-the-sand approach"—refusing to identify any specific number, percentage, or range of minority students that would constitute critical mass—is an improper attempt "to short circuit any inquiry into whether it can justify its policy with evidence by arguing that critical mass is a purely subjective concept that cannot be evaluated in numerical terms." Appellants claim that until UT identifies some "finishing line," the use of race has "no logical stopping point" and is therefore "too amorphous a basis for imposing a racially classified remedy." But in both Bakke and Grutter, the controlling opinions expressly approved of policies seeking only some undefined "meaningful number" of minorities, see Grutter, 539 U.S. at 335; Bakke, 438 U.S. at 323 (opinion of Powell, J.), and the Court has firmly "rejected" the argument "that diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite" a ground for race-conscious university admissions policies, Gratz, 539 U.S. at 268 (internal quotation marks omitted). On the contrary, if UT were to identify some numerical target for minority enrollment, that would likely render the policy unconstitutional under Grutter.
122. Grutter, 539 U.S. at 336 (citation, internal quotation marks, and brackets omitted).
123. Id. at 335 (quoting Sheet Metal Workers v. EEOC,478 U.S. 421, 495 (1986)). 124. Cf. Grutter, 539 U.S. at 391-92 (Kennedy, J., dissenting).
125. Fisher, 645 F. Supp. 2d at 607 n.11.
126. Id. at 606.
127. Grutter, 539 U.S. at 337 (quoting Bakke, 438 U.S. at 317 (opinion of Powell, J.)).
128. Id. at 338; see Fisher, 645 F. Supp. 2d at 597.
129. Grutter, 539 U.S. at 336 (quoting Bakke, 438 U.S. at 323 (opinion of Powell, J.)).
130. Id. at 333.
131. Id. at 338.
132. 2004 Proposal at 23 (quoted in Fisher, 645 F. Supp. 2d at 602).
133. Id. at 24-25 (quoted in Fisher, 645 F. Supp. 2d at 602).
134. Id. at 14.
135. See, e.g., Mark C. Long et al., Policy Transparency and College Enrollment: Did the Texas Top Ten Percent Law Broaden Access to the Public Flagships?, 627 ANNALS AM. ACAD. POL. & SOC. SCI. 82 (2010); Kim M. Lloyd et al., Minority College Aspirations, Expectations and Applications Under the Texas Top 10% Law, 86 SOC. FORCES 1105 (2008).
136. Grutter, 539 U.S. at 339.
137. See id. at 339-340.
138. TEX. EDUC. CODE § 51.803 (1997). The precise impact UT's other race-neutral alternatives (such as scholarship and outreach programs) have had on minority enrollment is not clear, but their effect would not appear to be great enough to bear on the constitutionality of the University's race-conscious admissions policy.
139. Fisher, 645 F. Supp. 2d at 594; see also Marta Tienda & Teresa A. Sullivan, The Promise and Peril of the Texas Uniform Admissions Law 164-65 & tbl.1, in THE NEXT TWENTY-FIVE YEARS? AFFIRMATIVE ACTION AND HIGHER EDUCATION IN THE UNITED STATES AND SOUTH AFRICA 155 (David L. Featherman et al. eds., 2010).
140. See Grutter, 539 U.S. at 339 (quoting Wygant, 476 U.S. at 280 n.6 (1986)).
141. The United States has since filed an amicus brief in the present case, urging us to uphold UT's current admissions program.
142. Grutter, 539 U.S. at 340 (internal citation omitted).
143. Id.
144. 2008 Top Ten Report at 8 tbl.2; Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12.
145. In reality, the Grutter plan operates on even fewer applications, as many non-top ten percent students are admitted based purely on their class rank and standardized test scores, without any reference to their PAI, leaving only 841 seats in 2008 that were evaluated under the Grutter plan. See Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12.
146. 2008 Top Ten Report at 7 tbl.1a; see supra note 74 and accompanying text. We also note that since it began, the Top Ten Percent Law has had an increasing impact on admissions decisions. In 1998, top ten percent candidates comprised just 41% of Texans in the freshman class. In 2004, 66% of Texan freshmen were top ten percent students, and in 2008, top ten percent students made up 81% of the Texas freshmen seats. While the legislative 75% cap on top ten percent enrollment may help alleviate some of the concerns with this plan, the fact remains that the Top Ten Percent Law operates today very differently than it did when first implemented.
147. See Univ. of Tex. at Austin Office of Info. Mgmt., Statistical Handbook 2009-2010, at 32 tbl.S27 (2010) (reporting UT enrollment by college, grade level, ethnicity, and gender); Lisa Dickson, Major Choices: Race and Gender Differences in College Major Choice, 627 ANNALS AM. ACAD. POL. & SOC. SCI. 108, 108 (2010) (analyzing UT data and finding that "significant differences by gender, race, and ethnicity persist in initial college major choice even after controlling for the [SAT] score of the student and the high school class rank of the student").
148. Statistical Handbook 2009-2010, at 31-32 tbl.S27.
149. For example, instead of admitting a minority top ten percent student from a low-performing school, UT might admit a minority student with an interest in business who is just as academically qualified (and perhaps more so), but falls outside the top ten percent of his high school class because he attends a more competitive high school. This example also demonstrates how the Top Ten Percent Law hurts academic selectivity: UT must admit a top ten percent student from a low-performing high school before admitting a more qualified minority student who ranks just below the top ten percent at a highly competitive high school. This effect, in turn, further widens the "credentials gap" between minority and non-minority students at the University, which risks driving away matriculating minority students from difficult majors like business or the sciences.
150. The Top Ten Percent Law may produce diversity beyond varying hometowns, including differences in socioeconomic status and rural/urban/suburban upbringing. However, under the Top Ten Percent Law, the University does not have the opportunity to select for a wide range of diverse experiences (such as travel abroad, extra-curricular involvement, or work experience), so the Top Ten Percent Law bluntly operates as an attempt to create diversity through reliance on perceived group characteristics and segregated communities.
151. 2004 Proposal at 25 & tbl.8.
152. Gratz, 539 U.S. at 304 n.10 (Ginsburg, J., dissenting).
153. In an effort to ameliorate this effect, a special provision of the Top Ten Percent Law provides that "a high school magnet program, academy, or other special program" may be considered "an independent high school with its own graduating class separate from the graduating class of other students attending the high school," effectively allowing the school to certify two separate groups of Top Ten Percent Law students. See TEX. EDUC. CODE § 51.8045.
154. See 2008 Top Ten Percent Report at 12 tbl.6 (showing the average SAT range for top ten percent and non-top ten percent students); id. at 13-15 tbls.6a—6d (displaying SAT ranges based on race and top ten percent status).
155. To reach its target class size, UT offers fall admission to 10,200 Texas applicants. Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12. For the class entering Fall 2008, after UT offered admission to top ten percent students, there were 1,216 admissions spots remaining. (The district court noted there were 841 places, but that number included the admission of so-called "Group A" applicants who have extremely high AI scores but are not in the top ten percent of their class. See id.) There were a total of 27,712 applicants for the fall class of 2008. Statistical Handbook 2009-2010, at 25 tbl.S21. Neither the record nor any public information released by the University disclose what portion of that total applicant pool were Texas residents, but if we assume that proportion of applicants from Texas matches the 90% of admissions slots reserved for Texas applicants, one can estimate that there were 24,940 Texas applicants. Subtracting the 8,984 students admitted under the Top Ten Percent Law yields an estimate of 15,956 applicants for 1,216 seats, or an acceptance rate of approximately 7.6%. By comparison, the overall acceptance rate at Ivy League schools for the class entering Fall 2008 ranged from 8% (Harvard) to 21% (Cornell). See The Rankings: Best National Universities, U.S. NEWS & WORLD REP., Sept. 2009, at 84-85.
156. Appellants here do not challenge the constitutionality of the Top Ten Percent Law. In fact, they endorse it as a race-neutral alternative to the Grutter plan. A court considering the constitutionality of the Law would examine whether Texas enacted the Law (and corresponding admissions policies) because of its effects on identifiable racial groups or in spite of those effects. See Pers. Adm'r of Mass. v. Feeney,442 U.S. 256 (1979); cf. Brief of Social Scientists Glenn C. Loury et al. as Amici Curiae in Support of Respondents, Grutter v. Bollinger,539 U.S. 306 (2003), available at 2003 WL 402129, at *2, *9—*10 (noting that "it is not clear that [percentage] plans are actually race-neutral" and that some amici counsel in Grutter "have signaled interest in moving on after this case to challenge these aspects of the Texas program"). 157. Fisher, 645 F. Supp. 2d at 593.
158. Grutter, 539 U.S. at 384 tbls.1-2 (Rehnquist, C.J., dissenting).
159. 2008 Top Ten Percent Report at 6 tbl.1.
160. 518 U.S. 515, 523 (1996) (internal quotation marks omitted). 161. See, e.g., 2004 Proposal at 24 ("[R]estoration to pre-Hopwood levels is not sufficient.").
162. Id. at 25 & tbl.8.
163. Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602).
164. Grutter, 539 U.S. at 318.
165. Id.
166. Id. at 330.
167. Parents Involved, 551 U.S. at 723.
168. Id. at 712, 716.
169. Id. at 735. Even current labels of "Hispanic," "African-American," or "Asian" may lump very different ethnic groups into a single category.
170. Fisher, 645 F. Supp. 2d at 609.
171. Parents Involved, 551 U.S. at 735.
172. Id. at 733.
173. Id. at 790 (opinion of Kennedy, J.).
174. 2008 Top Ten Percent Report at 7 tbl.1a.
175. See David K. Wiggins & Patrick B. Miller, THE UNLEVEL PLAYING FIELD: A DOCUMENTARY HISTORY OF THE AFRICAN AMERICAN EXPERIENCE IN SPORT 443 (2003) (quoting Roy Wilkins, who wrote in the 1930s that black athletes "carry more interracial education than all the erudite philosophy ever written on race" (internal quotation marks omitted)).
1. See Grutter, 539 U.S. at 328 (recognizing racial diversity "in the context of higher education" as compelling); Freeman v. Pitts,503 U.S. 467, 494 (1992) (remedying the effects of past intentional discrimination a compelling governmental interest); Korematsu v. United States,323 U.S. 214, 216 (1944) ("[P]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can."). In Fullilove v. Klutznick,448 U.S. 448 (1980), the Court upheld a federal law that set aside public works monies for minority-owned businesses. Although Fullilove has not been expressly overruled, it is unlikely that its holding survives the Court's later Equal Protection decisions. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 9.3.5, at 738, 742—43 (3d ed. 2006). Korematsu's authority is likewise suspect. 2. The Court's discussion of race as a "plus" factor takes place in the context of strict scrutiny's narrow tailoring inquiry. Whether race should be considered at all is a separate, more fundamental, matter. See infra Section III.
3. Although I do not believe the government's use of race in university admissions can ever serve a compelling interest, assuming that it can, there is no reason why a well-designed point system could not account for an applicant's race, among other variables, and yet still provide meaningful, individualized consideration. See Ayres & Foster, 85 TEX. L. REV. at 566—70; see also Gratz, 539 U.S. at 295 (Souter, J., dissenting) ("[I]t is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell's plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its `holistic review'; the distinction does not imply that applicants to the undergraduate college are denied individualized consideration . . . ." (citation omitted)).
4. See, e.g., Larry Alexander & Maimon Schwarzschild, Grutter or Otherwise: Racial Preferences and Higher Education, 21 CONST. COMMENT. 3 (2004); CHEMERINSKY, CONSTITUTIONAL LAW 744.
5. For example, a race-conscious admissions policy that added just one, three, or five members of a preferred minority group to an enrolling class of 6,700 would fail to be narrowly tailored. Such a program would have an intolerably high cost for little return. See infra Section II.
6. See also id. at 528 n.42 (citing, inter alia, WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 31—39 (1998)) (observing that the degree of racial preferences can be measured by examining the number of but-for admits and the qualification differentials between but-for admits and nonpreferred applicants who would have been admitted in the absence of affirmative action).
7. In addition to the two essays that UT requires as part of each application packet, the University considers several of the factors described above in determining an applicant's personal achievement score. See Fisher v. Univ. of Tex. at Austin,645 F.Supp.2d 587, 597 (W.D. Tex. 2009) ("The third [Personal Achievement Index] element is the personal achievement score, which is based on an evaluation of the file in its entirety by senior members of the admissions staff. The evaluators conduct a holistic review considering the applicant's demonstrated leadership qualities, extracurricular activities, awards and honors, work experience, service to the school or community, and special circumstances."). 8. See Robert C. Post, The Supreme Court, 2002 Term—Forward: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 59—60 (2003) ("Although Grutter casts itself as merely endorsing Justice Powell's opinion in Bakke, Grutter's analysis of diversity actually differs quite dramatically from Powell's. Powell conceptualized diversity as a value intrinsic to the educational process itself. He regarded diversity as essential to `the quality of higher education,' because education was a practice of enlightenment, `of speculation, experiment, and creation,' that thrived on the `robust exchange of ideas; characteristically provoked by confrontation between persons of distinct life experiences. . .. [Grutter] instead conceives of education as instrumental for the achievement of extrinsic social goods like professionalism, citizenship, or leadership. . . . Grutter's justifications for diversity thus potentially reach far more widely than do Powell's."); see also Ayres & Foster, 85 TEX. L. REV. at 578 n.215 (citing commentary).
9. Justice Powell's opinion in Bakke conspicuously avoided claiming a categorical educational benefit of diversity, asserting only the potential for such benefits. See 438 U.S. at 314 (opinion of Powell, J.).
10. Every measure of social benefit or harm would be subjective and, at worst, capable of manipulation through framing biases.
11. See Alexander & Schwarzschild, 21 CONST. COMMENT. at 5 n.9 (criticizing the Court's undue reliance on amicus briefs from corporate employers).
12. For example, life experiences differ significantly if a Hispanic student's ethnicity originates in Mexico as opposed to Spain, or, for that matter, any of various Central and South American countries. Likewise, an African-American student whose roots come from Nigeria would be distinct in culture and ethnicity from a student whose ancestry originated in Egypt or Haiti. This same principle applies for students from non-preferred racial classes. For example, second-generation students from English, Irish, Scottish, or Australian ancestry would come with very different cultural experiences, and yet all of these students would be grouped together as "White" in racial classification systems like the one used at the University of Texas.
13. See Lani Guinier, The Supreme Court, 2002 Term—Comment: Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 174-76 (2003).
14. This is not to criticize universities, like the University of Texas, for implementing policies that seek to increase minority representation, not merely for its educational benefits on campus, but also for the secondary benefits that such increases in minority enrollment can have in the workplace and in society generally. A university degree confers professional and leadership opportunities unavailable otherwise, and ensuring that all segments of society have meaningful access to public institutions of higher education "represents a paramount government objective." Grutter, 539 U.S. at 331-32 (citing Brief of United States as Amicus Curiae 13). I do not question this goal, but rather the constitutionality of using race to attain it.
15. As a result, UT's policy suffers from all the same defects as the Law School policy evaluated in Grutter and discussed previously in this opinion. See supra Section I.
16. See Bakke, 438 U.S. at 316 (opinion of Powell, J.) (noting the "necessity of including more than a token number of black students"). See also Patricia Gurin et al., Diversity and Higher Education: Theory and Impact on Educational Outcomes, 72 HARV. EDUC. REV. 330, 360-61 (2002) (enrolling "significant numbers of students of various groups" is necessary to enable students to "perceive differences both within groups and between groups"); Kathryn R.L. Rand & Steven Andrew Light, Teaching Race Without a Critical Mass: Reflections on Affirmative Action and the Diversity Rationale, 54 J. LEGAL. EDUC. 316, 332-34 (2004) (noting that under a cost-benefit analysis it may be more difficult to justify an affirmative action program when a university is unable to enroll a critical mass of minority applicants).
17. These statistics represent all classes at UT with five or more students, including large lecture courses. For classes with five to 24 students—the most likely to foster the vibrant discussion described in Grutter and Bakke—the figures are more revealing. In 2002, UT offered 3,616 classes with five to 24 students. Of these, 90% had one or zero African-American students and 43% had one or zero Hispanic students. See Proposal to Consider Race and Ethnicity in Admissions, June 25, 2004 at 26, Table 8.
18. Today's decision, like the district court's, alternates between using statistics from admitted and enrolled students. If realizing the educational benefits of diversity is the University's asserted interest, only the data for enrolled students is relevant to our review.
19. In the discussion that follows, I use the number of enrolled Texas residents (6,322) as a baseline rather than the aggregate enrollment for first-time freshman (6,715). There are two reasons for this. First, this case asks us to decide the necessity of UT's race-conscious admissions policy in light of Texas's Top Ten Percent law. I find this question is evaluated most effectively by comparing enrollment data for Texas residents, which include precise figures for Top 10% and Non-Top 10% enrollees. Second, as the majority opinion recognizes, ante at 44 n.155, the record does not include data showing what portion of the total applicant pool were Texas residents and what portion came from out-of-state. This is problematic. We know, for example, that the 2008 entering freshman class included 375 African-American and 1,338 Hispanic students, and that 363 and 1,322 of these students, respectively, were Texas residents. See 2008 Top Ten Percent Report at 6-7. So, although we know that the 2008 enrolling freshman class included 12 African-American and 16 Hispanic students from out-of-state, we cannot intelligently discuss the potential impact of UT's race-conscious policy on this data set without also having total application and admissions information available for non-Texas residents. This does not affect my conclusions—the number of non-Texas African-American and Hispanic students enrolled in the freshman class is statistically insignificant.
20. In this section, I often refer to a raw number followed by a percentage listed in parentheses. E.g., "305 (4.8%)." This percentage figure (__%) is calculated by dividing number of students cited by 6,322, the number of enrolled Texas residents in the 2008 freshman class.
21. In assessing whether the University's use of race is narrowly tailored, today's majority opinion finds that Top Ten Percent is not a race-neutral alternative that serves the University's asserted interest "about as well" as its Grutter-like plan. See ante at 39—46. My concurrence should not be read to approve or reject the constitutionality of percentage plans like Top Ten Percent. That issue remains open. I write separately to underscore the minimal effect that the University's use of race has had on critical mass in light of Top Ten Percent, and why the University's use of race would not, therefore, be narrowly tailored applying traditional strict scrutiny principles before Grutter. I recognize that Grutter appears to swallow this concern.
22. See Alexander & Schwarzschild, 21 CONST. COMMENT. at 6 & n.10 ("There is broad scholarly support for this proposition. See, e.g., NAOMI ZACK, PHILOSOPHY OF SCIENCE AND RACE 58—62 (2002); JOSEPH L. GRAVES, JR., THE EMPEROR'S NEW CLOTHES: BIOLOGICAL THEORIES OF RACE AT THE MILLENNIUM (2001); Joshua M. Glasgow, On the New Biology of Race, 100 J. PHIL. 456 (2003).").
23. See Alexander & Schwarzschild, 21 CONST. COMMENT. at 6—7 ("[W]hen the government classifies people racially and ethnically, and then makes valuable entitlements such as admission to a university turn on those classifications, . . . that very fact encourages people to think that `races' are real categories, not bogus ones, and that one's race is an exceedingly important rather than a superficial fact about oneself and others. In other words, it encourages people to pay close attention to race and to think in racial terms.").
24. Professor Cohen succinctly describes some of the effects of racial and ethnic preferences in higher education:
1. preference divides the society in which it is awarded;
2. it establishes a precedent in excusing admitted racial discrimination to achieve political objectives;
3. it corrupts the universities in which it is practiced, sacrificing intellectual values and creating pressures to discriminate by race in grading and graduation;
4. . . .
5. it obscures the real social problem of why so many minority students are not competitive academically;
6. it obliges a choice of some few ethnic groups, which are to be favored above all others;
7. . . .
8. it removes incentives for academic excellence and encourages separatism among racial and ethnic minorities;
9. it mismatches students and institutions, increasing the likelihood of failure for many minority students; and
10. it injures race relations over the long haul.
CARL COHEN & JAMES P. STERBA, AFFIRMATIVE ACTION & RACIAL PREFERENCE 109 (2003).
25. For example, in the School of Architecture, the School of Fine Arts, and certain honors programs, where aptitude is essential, the University requires special portfolio, audition, and other requirements. See ante at 23 n.87. In these and other impacted programs where student demand outstrips available space, the University recognizes and uses merit as the decisive consideration in admission. I do not see why excellence and merit warrant less consideration in the University's other disciplines.