     Case: 09-50822   Document: 00512699085   Page: 1   Date Filed: 07/15/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                               No. 09-50822                        July 15, 2014
                                                                  Lyle W. Cayce
ABIGAIL NOEL FISHER,                                                   Clerk


                                        Plaintiff – Appellant
v.

UNIVERSITY OF TEXAS AT AUSTIN; DAVID B. PRYOR, Executive Vice
Chancellor for Academic Affairs 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


                Appeal from the United States District Court
                     for the Western District of Texas


                       ON REMAND FROM
            THE SUPREME COURT OF THE UNITED STATES
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                                       No. 09-50822
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
       Abigail Fisher brought this action against the University of Texas at
Austin, 1 alleging that the University’s race-conscious admissions program
violated the Fourteenth Amendment. The district court granted summary
judgment to UT Austin and we affirmed. The Supreme Court vacated and
remanded, holding that this Court and the district court reviewed UT Austin’s
means to the end of a diverse student body with undue deference; that we must
give a more exacting scrutiny to UT Austin’s efforts to achieve diversity. With
the benefit of additional briefing, oral argument, and the ordered exacting
scrutiny, we affirm the district court’s grant of summary judgment.
                                              I
                                              A
       Fisher applied to UT Austin for admission to the entering class of fall
2008. 2 Although a Texas resident, she did not graduate in the top ten percent
of her class. She therefore did not qualify for automatic admission under the
Top Ten Percent Plan, which that year took 81% of the seats available for Texas
residents. 3 Instead, she was considered under the holistic review program, 4


       1  Along with Fisher, Rachel Michalewicz was originally a plaintiff against UT Austin;
Michalewicz is no longer a party to this action.
        2 Defs.’ Cross-Mot. Summ. J., Ex. Tab 7 to App., Ishop Aff. at ¶ 2, Fisher v. Univ. of

Tex. at Austin, 645 F. Supp. 2d 587 (W.D. Tex. 2009) (No. 08-263), ECF No. 96 [hereinafter
Ishop Aff.].
        3 Office of Admissions, Univ. of Tex. at Austin, Implementation and Results of the

Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin: Demographic
Analysis of Entering Freshmen Fall 2008 and Academic Performance of Top 10% and Non-
Top 10% Students Academic Years 2003–2007 (Report 11), at 7 tbl.1a (Oct. 28, 2008)
[hereinafter 2008 Top Ten Percent Report], Defs.’ Cross-Mot. Summ. J., Ex. Tab 8 to App.,
Lavergne Aff., Ex. C, Fisher, 645 F. Supp. 2d 587 (No. 08-263), ECF No. 96, available at
http://www.utexas.edu/student/admissions/research/HB588-Report11.pdf.
        4 Ishop Aff. ¶ 16, ECF No. 96. Additionally, Fisher did not apply for any academic

programs with special application processes, such as the Plan II Honors program or a Fine
Arts program.
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                                       No. 09-50822
which looks past class rank to evaluate each applicant as an individual based
on his or her achievements and experiences, and so became one of 17,131
applicants 5 for the remaining 1,216 seats 6 for Texas residents.
       UT Austin denied Fisher admission.                Kedra B. Ishop, the Associate
Director of Admissions at the time of Fisher’s application, 7 explained that
“[g]iven the lack of space available in the fall freshman class due to the Top
10% Plan, . . . based on [her] high school class rank and test scores,” Fisher
could not “have gained admission through the fall review process.” 8 As Ishop
explained, any applicant who was not offered admission either through the Top
Ten Percent Law or through an exceptionally high Academic Index (“AI”) score
is evaluated through the holistic review process. 9 The AI is calculated based
on an applicant’s standardized test scores, class rank, and high school
coursework. 10 Holistic review considers applicants’ AI scores and Personal
Achievement Index (“PAI”) scores. The PAI is calculated from (i) the weighted
average score received for each of two required essays and (ii) a personal
achievement score based on a holistic review of the entire application, with
slightly more weight being placed on the latter. 11 In calculating the personal



       5 Id. ¶ 13.
       6 2008 Top Ten Percent Report at 9 tbl.2b; id. at 8 tbl.2. 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. Ishop Aff. ¶ 12, ECF No. 96.
       7 Id.
       8 Id. ¶ 18.
       9 Id. ¶ 4.
       10 Id. ¶ 3. The AI score is generated by adding the predicted grade point average

(“PGPA”) and the curriculum-based bonus points (“units plus”). Id. The PGPA is calculated
using an applicant’s SAT or ACT scores and class rank. Id. A units plus bonus of 0.1 points
is added to the PGPA if the applicant took more than UT Austin’s minimum high school
coursework requirements in at least two of three designated subject areas. Id.
       11 Id. ¶ 5. The PAI is calculated as follows: PAI = ((((essay score 1 + essay score 2)/2)

* 3) + ((personal achievement score)*4))/7. Defs.’ Cross-Mot. Summ. J., Ex. Tab 3 to App.,
Lavergne Dep. at 57:11–17, Fisher, 645 F. Supp. 2d 587 (No. 08-263), ECF No. 96 [hereinafter
Lavergne Dep.].
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                                       No. 09-50822
achievement score, the staff member conducts a holistic review of the contents
of the applicant’s entire file, including demonstrated leadership qualities,
extracurricular activities, honors and awards, essays, work experience,
community service, and special circumstances, such as the applicant’s
socioeconomic status, family composition, special family responsibilities, the
socioeconomic status of the applicant’s high school, and race. 12 No numerical
value is ever assigned to any of the components of personal achievement scores,
and because race is a factor considered in the unique context of each applicant’s
entire experience, it may be a beneficial factor for a minority or a non-minority
student. 13
       To admit applicants through this holistic review, the admissions office
generates an initial AI/PAI matrix for each academic program, wherein
applicants are placed into groups that share the same combination of AI and
PAI scores. 14 School liaisons then draw stair-step lines along this matrix,
selecting groups of students on the basis of their combined AI and PAI scores.
This process is repeated until each program admits a sufficient number of
students.
       Fisher’s AI scores were too low for admission to her preferred academic
programs at UT Austin; Fisher had a Liberal Arts AI of 3.1 and a Business AI
of 3.1. 15 And, because nearly all the seats in the undeclared major program in
Liberal Arts were filled with Top Ten Percent students, all holistic review
applicants “were only eligible for Summer Freshman Class or CAP


       12  Defs.’ Cross-Mot. Summ. J., Ex. Tab 1 to App., Bremen Dep. at 16:15–17:13, 18:5–
19:14, 44:1–44:6, Fisher, 645 F. Supp. 2d 587 (No. 08-263), ECF No. 96 [hereinafter Bremen
Dep.]; Ishop Aff. ¶ 5, ECF No. 96; Defs.’ Cross-Mot. Summ. J., Ex. Tab 2 to App., Ishop Dep.
at 22:13–20, Fisher, 645 F. Supp. 2d 587 (No. 08-263), ECF No. 96 [hereinafter Ishop Dep.].
        13 Ishop Aff. ¶ 5, ECF No. 96.
        14 Id. ¶ 14. The AI scores are placed on one axis and the PAI scores are placed on the

other axis. Students are then grouped based on their combination of AI and PAI scores.
        15 Id. ¶ 18.

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                                        No. 09-50822
[Coordinated Admissions Program] admission, unless their AI exceeded 3.5.” 16
Accordingly, even if she had received a perfect PAI score of 6, she could not
have received an offer of admission to the Fall 2008 freshman class. 17 If she
had been a minority the result would have been the same.
                                               B
       This reality together with factual developments since summary
judgment call into question whether Fisher has standing. 18 UT Austin argues
that Fisher lacks standing because (i) she graduated from another university
in May 2012, thus rendering her claims for injunctive and declaratory relief
moot, 19 and (ii) there is no causal relationship between any use of race in the
decision to deny Fisher admission and the $100 application fee—a non-
refundable expense faced by all applicants that puts at issue whether Fisher
suffered monetary injury. 20
       Two competing and axiomatic principles govern the resolution of this
question. First, jurisdiction must exist at every stage of litigation. A litigant
“generally may raise a court’s lack of subject-matter jurisdiction at any time in




       16  Id.
       17  Id. At the preliminary injunction stage, UT Austin suggested that it was unable to
determine whether Fisher (or Michalewicz) would have been admitted without re-running
the entire admissions process. Opp. Mot. Prelim. Injunction at 12, Fisher, 645 F. Supp. 2d
587 (No. 08-263), ECF No. 42. Regardless, it became clear in the summary judgment record
that whether Fisher would have been admitted even if she had a perfect PAI score presented
no genuine issue of fact. She would not have been admitted. The same was true for
Michalewicz, then a co-plaintiff.
        18 Plaintiffs “must show that (1) they have suffered an injury in fact, (2) a causal

connection exists between the injury and challenged conduct, and (3) a favorable decision is
likely to redress the injury.” Adar v. Smith, 639 F.3d 146, 150 (5th Cir. 2011) (en banc) (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)).
        19 Appellees’ Statement Concerning Further Proceedings on Remand at 5.
        20 As we will explain, Fisher’s odds of admission were affected by the Top Ten Percent

Plan, which filled all but around 1,200 seats of the incoming class. Competition drove the
automatic rejection up to a 3.5 AI score.
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                                       No. 09-50822
the same civil action, even initially at the highest appellate instance.” 21 Even
if “defendants failed to challenge jurisdiction at a prior stage of the litigation,
they are not prohibited from raising it later.” 22 Indeed, the “independent
establishment of subject-matter jurisdiction is so important that [even] a party
ostensibly invoking federal jurisdiction may later challenge it as a means of
avoiding adverse results on the merits.” 23
       Second, the “mandate rule,” a corollary of the law of the case doctrine,
“compels compliance on remand with the dictates of a superior court and
forecloses relitigation of issues expressly or impliedly decided by the appellate
court.” 24     The Supreme Court, like all Article III courts, had its own
independent obligation to confirm jurisdiction, and where the lower federal
court “lack[ed] jurisdiction, [the Supreme Court has] jurisdiction on appeal, not
of the merits, but merely for the purpose of correcting the error of the lower
court in entertaining the suit.” 25
       UT Austin’s standing arguments carry force, 26 but in our view the
actions of the Supreme Court do not allow our reconsideration. The Supreme
Court did not address the issue of standing, although it was squarely presented
to it. 27 Rather, it remanded the case for a decision on the merits, having




       21   Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 576 (2004) (citations
omitted).
       22 Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 223 (5th Cir. 2012).
       23 Id. (quoting 13 Charles Alan Wright, et al., Fed. Practice & Procedure § 3522 at
122–23 (3d ed. 2008)).
       24 United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004) (citing United States v. Bell,

988 F.2d 247, 251 (1st Cir. 1993)).
       25 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 95 (1998).
       26 Notably, in her supplemental briefing Fisher argues only that she had suffered an

“injury in fact.” Supp. Br. of Appellant 12–13. Instead of addressing redressability, she
argues only that the question of remedies is a separate inquiry. Id. at 13–14. Regardless of
the district court’s bifurcation of merits and remedies, the redressability of an injury is
integral to the standing inquiry.
       27 See Br. of Resp. 6–20.

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                                       No. 09-50822
reaffirmed Justice Powell’s opinion for the Court in Regents of the University
of California v. Bakke 28 as read by the Court in Grutter v. Bollinger. 29 It
affirmed all of this Court’s decision except its application of strict scrutiny. The
parties have identified no changes in jurisdictional facts occurring since
briefing in the Supreme Court. Fisher’s standing is limited to challenging the
injury she alleges she suffered—the use of race in UT Austin’s admissions
program for the entering freshman class of Fall 2008.
                                              II
       We turn to the question whether we can and should remand this case.
The Supreme Court’s mandate frames its resolution, ordering that “[t]he
judgment of the Court of Appeals is vacated, and the case remanded for further
proceedings consistent with this opinion.” The mandate must be read against
the backdrop of custom that accords courts of appeal discretion to remand to
the district court on receipt of remands to it for proceedings consistent with the
opinion—a customary discretion not displaced but characterized by nigh boiler
plate variations in phrasing of instructions such as “on remand the Court of
Appeals may ‘consider,’” or “for the Court of Appeals to consider in the first
instance.” 30
                                              A
       Fisher argues that the Supreme Court’s remanding language—“fairness
to the litigants and the courts that heard the case requires that it be remanded
so that the admissions process can be considered and judged under a correct
analysis” 31—compels the conclusion that “fairness” must be achieved by having



       28 438 U.S. 265 (1978).
       29 539 U.S. 306 (2003).
       30 See, e.g., Spector v. Norwegian Cruise Line, Ltd., 427 F.3d 285, 286 (5th Cir. 2005);

United States v. Williamson, 47 F.3d 1090 (11th Cir. 1995); FW/PBS, Inc. v. City of Dall.,
896 F.2d 864, 865 (5th Cir. 1990).
       31 Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2421 (2013).

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                                    No. 09-50822
this Court, and not the district court, conduct the inquiry. Fisher relies on the
Supreme Court’s statement that “the Court of Appeals must assess whether
the University has offered sufficient evidence that its admissions program is
narrowly tailored to obtain the educational benefits of diversity.” 32 And Fisher
argues that at summary judgment, all parties conceded that there were no
genuine issues of material fact to be resolved and that the case should be
decided on summary judgment.
      UT Austin opposes this parsing of language, arguing that Fisher fails to
credit (i) the entirety of the Supreme Court’s references which spoke, not just
to the fairness of allowing this Court to correct its error, but also to the fairness
to the district court, which first heard the case and was faulted for the same
error as this Court; and, (ii) that the language used by the Supreme Court is
the common language of remand orders and is often followed by a remand to
the district court.       UT Austin notes that in its remanding language, the
Supreme Court cites Adarand Constructors, Inc. v. Pena, 33 where the court of
appeals remanded to the district court after the Supreme Court vacated the
judgment of the court of appeals for failure to apply strict scrutiny. Finally,
UT Austin argues that the remand language, at best, is ambiguous and, given
the custom of the courts of appeals, should not be read to foreclose the clear
discretion of this Court to remand absent specific, contrary instructions from
the Supreme Court.
      Given the customary practice of the courts of appeals and the less than
clear language of the Supreme Court’s remand, we are not persuaded that the
Supreme Court intended to foreclose our discretion to remand to the district
court. A review of the Supreme Court’s language lends but little support to



      32   Id.
      33   515 U.S. 200 (1995).
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                                         No. 09-50822
each side. Yet, this is telling. Had the Supreme Court intended to control the
discretion of this Court as to whether the district court should first address an
error that the Supreme Court found was made by both courts, there would have
been no uncertainty in the remand language. The question whether we should
remand remains.
                                              B
      There is no clear benefit to remanding this case to the district court. The
suggestion, without more, that discovery may be necessary given the Supreme
Court’s holding regarding proper scrutiny and deference adds nothing.
Admittedly, this case differs from Grutter, in that Grutter went to trial. And
evidence offered by live witnesses is far more likely to surface and resolve fact
issues than summary judgment evidence crafted by advocates. But that too is
far from certain. Indeed, UT Austin’s argument goes no further than “factual
questions or disputes may arise on remand.” 34 Notably, UT Austin does not
argue that a trial will be necessary. Rather its principal target on remand is
standing, with questions that continue to haunt, but are foreclosed by the
Supreme Court’s implicit finding of standing, questions only it can now
address.
      We find that there are no new issues of fact that need be resolved, nor is
there any identified need for additional discovery; that the record is sufficiently
developed; and that the found error is common to both this Court and the
district court. It follows that a remand would likely result in duplication of
effort. We deny UT Austin’s motion for remand, and turn to the merits.




      34   Defs.’ Mot. to Remand at 4.
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                                     No. 09-50822
                                           III
                                            A
      In remanding, the Supreme Court held that its decision in Grutter
requires that “strict scrutiny must be applied to any admissions program using
racial categories or classifications”; 35 that “racial classifications are
constitutional only if they are narrowly tailored to further compelling
governmental interests.” 36      Bringing forward Justice Kennedy’s dissent in
Grutter, the Supreme Court faulted the district court’s and this Court’s review
of UT Austin’s means to achieve the permissible goal of diversity—whether UT
Austin’s efforts were narrowly tailored to achieve the end of a diverse student
body. Our charge is to give exacting scrutiny to these efforts.
      The Supreme Court has made clear that “a university’s educational
judgment that such diversity is essential to its educational mission is one to
which we defer.” 37 The “decision to pursue the educational benefits that flow
from student body diversity that the University deems integral to its mission
is, in substantial measure, an academic judgment to which some, but not
complete, judicial deference is proper under Grutter.” 38 Accordingly, a court
“should ensure that there is a reasoned, principled explanation for the
academic decision.” 39
      In both Fisher and Grutter, the Supreme Court endorsed Justice Powell’s
conclusion that “attainment of a diverse student body . . . is a constitutionally
permissible goal for an institution of higher education;” 40 that in contrast to



      35 Fisher, 133 S. Ct. at 2419.
      36 Grutter, 539 U.S. at 326.
      37 Fisher, 133 S. Ct. at 2419 (quoting Grutter, 539 U.S. at 328) (internal quotation

marks omitted).
      38 Id. (internal quotation marks and citations omitted).
      39 Id.
      40 Bakke, 438 U.S. at 311.

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“[r]edressing past discrimination, . . . [t]he attainment of a diverse student
body . . . serves values beyond race alone, including enhanced classroom
dialogue and the lessening of racial isolation and stereotypes”; 41 that the
“academic mission of a university is a special concern of the First Amendment
. . . [and part] of the business of a university [is] to provide that atmosphere
which is most conducive to speculation, experiment, and creation, and this in
turn leads to the question of who may be admitted to study.” 42 It signifies that
this compelling interest in “securing diversity’s benefits . . . is not an interest
in simple ethnic diversity, in which a specified percentage of the student body
is in effect guaranteed to be members of selected ethnic groups, with the
remaining percentage an undifferentiated aggregation of students.” 43 Rather,
“diversity that furthers a compelling state interest encompasses a far broader
array of qualifications and characteristics of which racial or ethnic origin is but
a single though important element.” 44              Justice Powell found Harvard’s
admissions program to be particularly commendable. 45 There an applicant’s
race was but one form of diversity that would be weighed against qualities such
as “exceptional personal talents, unique work or service experience, leadership
potential, maturity, demonstrated compassion, a history of overcoming
disadvantage, ability to communicate with the poor, or other qualifications
deemed important.” 46        Bakke envisions a rich pluralism for American
institutions of higher education, one at odds with a one-size-fits-all conception




      41 Fisher, 133 S. Ct. at 2417–18.
      42 Id. at 2418.
      43 Id. (internal quotation marks and citations omitted).
      44 Id.
      45 Id.
      46 Id. at 317.

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of diversity, indexed to the ways in which a diverse student body contributes
to a university’s distinct educational mission, not numerical measures. 47
      Diversity is a composite of the backgrounds, experiences, achievements,
and hardships of students to which race only contributes. “[A] university is
not permitted to define diversity as some specified percentage of a particular
group merely because of its race or ethnic origin” because that “would amount
to outright racial balancing, which is patently unconstitutional.” 48 Instead,
Grutter approved the University of Michigan Law School’s goal of “attaining a
critical mass of under-represented minority students,” and noted that such a
goal “does not transform its program into a quota.” 49
                                            B
      In language from which it has not retreated, the Supreme Court
explained that the educational goal of diversity must be “defined by reference
to the educational benefits that diversity is designed to produce.” 50
Recognizing that universities do more than download facts from professors to
students, the Supreme Court recognized three distinct educational objectives
served by diversity: (i) increased perspectives, meaning that diverse
perspectives improve educational quality by making classroom discussion
“livelier, more spirited, and simply more enlightening and interesting when
the students have the greatest possible variety of backgrounds”; 51 (ii)
professionalism, meaning that “student body diversity . . . better prepares
[students] as professionals,” because the skills students need for the
“increasingly global marketplace can only be developed through exposure to



      47  Justice Powell’s opinion pointed to this accent upon mission at Harvard—one akin
to an aged tradition at Oxford—to shape lives, not just fill heads with facts.
       48 Grutter, 539 U.S. at 330 (citing Bakke, 438 U.S. at 307).
       49 Id. at 335–36.
       50 Id. at 329–30.
       51 Id. at 330.

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widely diverse people, cultures, ideas, and viewpoints”; 52 and, (iii) civic
engagement, meaning that a diverse student body is necessary for fostering
“[e]ffective participation by members of all racial and ethnic groups in the civil
life of our Nation[, which] is essential if the dream of one Nation, indivisible,
is to be realized.” 53 All this the Supreme Court reaffirmed, leaving for this
Court a “further judicial determination that the admissions process meets
strict scrutiny in its implementation”; 54 that is, its means of achieving the goal
of diversity are narrowly tailored.
      A university “must prove that the means chosen by the University to
attain diversity are narrowly tailored to that goal.” 55          And a university
“receives no deference” on this point because it is the courts that must ensure
that the “means chosen to accomplish the [university’s] asserted purpose . . .
be specifically and narrowly framed to accomplish that purpose.” 56 Although
“a court can take account of a university’s experience and expertise in adopting
or rejecting certain admissions processes,” it remains a university’s burden to
demonstrate and the court’s obligation to determine whether the “admissions
processes ensure that each applicant is evaluated as an individual, and not in
a way that makes an applicant’s race or ethnicity the defining feature of his or
her application.” 57
                                          C
      Narrow tailoring requires that the court “verify that it is ‘necessary’ for
a university to use race to achieve the educational benefits of diversity.” 58 Such


      52  Id.
      53  Id. at 332.
      54 Fisher, 133 S. Ct. at 2419–20.
      55 Id. at 2420.
      56 Id. (internal quotation marks and citations omitted).
      57 Id. (quoting Grutter, 539 U.S. at 337) (internal quotation marks and citations

omitted).
      58 Id. (quoting Bakke, 438 U.S. at 305).

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a verification requires a “careful judicial inquiry into whether a university
could achieve sufficient diversity without using racial classifications.” 59 Thus,
the reviewing court must “ultimately be satisfied that no workable race-
neutral alternatives would produce the educational benefits of diversity.” 60 It
follows, therefore, that if “a nonracial approach . . . could promote the
substantial interest about as well and at tolerable expenses, . . . then the
university may not consider race.” 61 And it is the university that bears “the
ultimate burden of demonstrating, before turning to racial classifications, that
available, workable race-neutral alternatives do not suffice.” 62
       The Supreme Court emphasized that strict scrutiny must be balanced.
That is, “[s]trict scrutiny must not be strict in theory, but fatal in fact,” yet it
must also “not be strict in theory but feeble in fact.” 63
                                            IV
                                             A
       Fisher insists that our inquiry into narrow tailoring begin in 2004, the
last year before UT Austin adopted its current race-conscious admissions
program. Looking to that year, Fisher argues that the Top Ten Percent Plan
had achieved a substantial combined Hispanic and African-American
enrollment of approximately 21.5%; 64 and that this is more minority
enrollment than present in Grutter, where a race-conscious plan grew minority
enrollment from approximately 4% to 14%. Because UT Austin was already
enrolling a larger percentage of minorities than the Michigan Law School, the



       59 Id.
       60 Id. (emphasis added).
       61 Id. (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 (1986) (internal

quotation marks omitted)).
       62 Id.
       63 Id. at 2421.
       64 2008 Top Ten Percent Report at 6 tbl.1.

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argument maintains, UT Austin had achieved sufficient diversity to attain the
educational benefits of diversity, a critical mass, before it adopted a race-
conscious admissions policy; that even if sufficient diversity had not been
achieved by 2004, it had been achieved by 2007 when the combined percentage
of Hispanic and African-American enrolled students was 25.5%. Thus, Fisher
argues, the race-conscious admissions policy had a de minimis effect, at most
adding 0.92% African-American enrollment and 2.5% Hispanic enrollment;
that a slight contribution is not a “constitutionally meaningful” impact on
student body diversity and is no more than an exercise in gratuitous racial
engineering.
      This effort to truncate the inquiry clings to a baseline that crops events
Fisher’s claim ignores, as it must.              The true narrative presents with a
completeness both fair and compelled by the Supreme Court’s charge to
ascertain the facts in full without deference, exposing the de minimis argument
as an effort to turn narrow tailoring upside down. We turn to that narrative.
                                               B
      In 1997, following the Hopwood v. Texas 65 decision, UT Austin faced a
nearly intractable problem: achieving diversity—including racial diversity—
essential to its educational mission, while not facially considering race even as
one of many components of that diversity. Forbidden any use of race after
Hopwood, UT Austin turned to the Top Ten Percent Plan, which guarantees
Texas residents graduating in the top ten percent of their high school class
admission to any public university in Texas. Such a mechanical admissions
program could have filled every freshman seat but standing alone it was not a
workable means of achieving the diversity envisioned by Bakke, bypassing as
it did high-performing multi-talented students, minority and non-minority.


      65   78 F.3d 932 (5th Cir. 1996), abrogated by Grutter, 539 U.S. at 322.
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                                     No. 09-50822
With its blindness to all but the single dimension of class rank, the Top Ten
Percent Plan came with significant costs to diversity and academic integrity,
passing over large numbers of highly qualified minority and non-minority
applicants. The difficulties of Texas’s and other states’ percentage plans did
not escape the Court in Grutter, which explained that “even assuming such
plans are race-neutral, they may preclude the university from conducting the
individualized assessments necessary to assemble a student body that is not
just racially diverse, but diverse along all the qualities valued by the
university.” 66
      Nor did these difficulties escape the Texas legislature. Opponents to the
proposed plan noted that such a policy “could actually harm institutions” and
“would not solve the problems created by [Hopwood].” 67 So the legislature
adopted a Top Ten Percent Plan that left a substantial number of seats to a
complementary holistic review process. Foreshadowing Grutter, admission
supplementing the Top Ten Percent Plan included factors such as socio-
economic diversity and family educational achievements but, controlled by
Hopwood, it did not include race.           In short, a holistic process sans race
controlled the gate for the large percent of applicants not entering through the
Top Ten Percent Plan. Over the succeeding years the Top Ten Percent Plan
took an increasing number of seats, a take inherent in its structure and a
centerpiece of narrow tailoring, as we will explain.
                                                C
      We are offered no coherent response to the validity of a potentially
different election by UT Austin: to invert the process and use Grutter’s holistic
review to select 80% or all of its students. Such an exponential increase in the


      66Grutter, 539 U.S. at 340.
      67 Pls.’ Mot. Summ. J., Ex. 27, Fisher, 645 F. Supp. 2d 587 (No. 08-263), ECF No. 94
(HB 588, House Research Organization Digest, Apr. 15, 1997).
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                                       No. 09-50822
use of race under the flag of narrow tailoring is perverse. Grutter blessed an
admissions program, applied to the entire pool of students competing for
admission, which “considers race as one factor among many, in an effort to
assemble a student body that is diverse in ways broader than race.” Affording
no deference, we look for narrow tailoring in UT’s Austin’s use of this
individualized race-conscious holistic review, applied as it is only to a small
fraction of the student body as the rest is consumed by race-neutral efforts.
      Close scrutiny of the data in this record confirms that holistic review—
what little remains after over 80% of the class is admitted on class rank alone—
does not, as claimed, function as an open gate to boost minority headcount for
a racial quota.       Far from it.      The increasingly fierce competition for the
decreasing number of seats available for Texas students outside the top ten
percent results in minority students being under-represented—and white
students being over-represented—in holistic review admissions relative to the
program’s impact on each incoming class. In other words, for each year since
the Top Ten Percent Plan was created through 2008, holistic review
contributed a greater percentage of the incoming class of Texans as a whole
than it did the incoming minority students. Examples illustrate this effect. Of
the incoming class of 2008, the year Fisher applied for admission, holistic
review contributed 19% of the class of Texas students as a whole—but only
12% of the Hispanic students and 16% of the black students, while contributing
24% of the white students. 68 The incoming class of 2005, the year that the
Grutter plan was first introduced, is similar. That year, 31% of the class of
Texas students as a whole was admitted through holistic review (with the
remaining 69% of incoming seats for Texans filled by the Top Ten Percent
Plan)—but only 21% of the Hispanic Texan students in the incoming class were


      68   2008 Top Ten Percent Report at 7 tbl.1a.
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                                       No. 09-50822
admitted through holistic review, and 26% of the incoming black Texan
students, but 35% of the incoming white Texan students. 69 Minorities being
under-represented in holistic review admission relative to the impact of holistic
review on the class as a whole holds true almost without exception for both
blacks and Hispanics for every year from 1996–2008, 70 and can be seen in the
chart attached to this opinion at Appendix 1.
       Given the test score gaps between minority and non-minority applicants,
if holistic review was not designed to evaluate each individual’s contributions
to UT Austin’s diversity, including those that stem from race, holistic
admissions would approach an all-white enterprise. Data for the entering



       69   Office of Admissions, Univ. of Tex. at Austin, Implementation and Results
of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin:
Demographic Analysis of Entering Freshmen 2006 and Academic Performance
of Top 10% and Non-Top 10% Students Academic Years 1996–2005, at 5 tbl.1a
(Dec. 6, 2007)) [hereinafter 2006 Top Ten Percent Report], Pls.’ Mot. Summ. J., Ex. 25, Fisher,
645     F.     Supp.    2d     587    (No.    08-263),    ECF     No.    94,   available     at
http://www.utexas.edu/student/admissions/research/HB588-Report-VolumeI.pdf.
        70 Later editions of the same reports available as public data show that as the take of

the Top Ten Percent Plan continued to grow, this effect intensified. In 2009, when the holistic
review program was left with only 14.4% of the seats available for Texas residents, only 6.3%
of Hispanic enrolled students were admitted through holistic review and 10.0% of blacks, but
18.8% of whites. Office of Admissions, Univ. of Tex. at Austin, Implementation and Results
of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin:
Demographic Analysis of Entering Freshmen Fall 2009 and Academic Performance of Top
10% and Non-Top 10% Students Academic Years 2004–2008 (Report 12), at 8 tbl.1a
(Oct. 29, 2009) [hereinafter 2009 Top Ten Percent Report], available at
http://www.utexas.edu/student/admissions/research/HB588-Report12.pdf; see also Office of
Admissions, Univ. of Tex. at Austin, Implementation and Results of the Texas Automatic
Admissions Law (HB 588) at the University of Texas at Austin: Demographic Analysis of
Entering Freshmen Fall 2010 and Academic Performance of Top 10% and Non-Top 10%
Students Entering Freshmen 2009 (Report 13) (Dec. 23, 2010) [hereinafter 2010 Top Ten
Percent Report], available at http://www.utexas.edu/student/admissions/research/HB588-
Report13.pdf. The passage of SB 175 allowed UT Austin to reset the take of the automatic
admissions program to a minimum of 75% of the admissions slots, but the effect continued.
William Powers Jr., Univ. of Tex. at Austin, Report to the Governor, the Lieutenant Governor,
and the Speaker of the House of Representatives on the Implementation of SB 175, 81st
Legislature, for the Period Ending Fall 2013, at 29 tbl.4.1 (Dec. 20, 2013) [hereinafter 2013
Powers Report], available at
http://www.utexas.edu/student/admissions/research/SB_175_Report_for_2013.pdf.
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                                      No. 09-50822
Texan class of 2005, the first year of the Grutter plan, show that Hispanic
students admitted through holistic review attained an average SAT score of
1193, African-American students an 1118, and white students a 1295. 71 For
the entering class of 2007, the last class before Fisher applied for admission,
the corresponding data were 1155 for Hispanic students, 1073 for African
American students, and 1275 for white students, this from a universe of
underperforming secondary schools. 72 As we have explained, the impact of the
holistic review program on minority admissions is already narrow, targeting
students of all races that meet both the competitive academic bar of admissions
and have unique qualities that complement the contributions of Top Ten
Percent Plan admittees.
                                            D
       UT Austin did not stop with the Top Ten Percent Plan in its effort to
exhaust racially neutral alternatives to achieving diversity. It also initiated a
number of outreach and scholarship efforts targeting under-represented
demographics, including the over half of Texas high school graduates that are
African-American       or   Hispanic. 73        Programs     included     the   Longhorn


       71  2006 Top Ten Percent Report at 11–14.
       72  2008 Top Ten Percent Report at 12–15.
        73 The Texas public high school graduating class of 2008, the year Fisher graduated

from high school, included 13.4% African-American and 37.5% Hispanic students.
Div.       of      Performance       Reporting,     Tex.     Educ.     Agency,      2008–09
Texas Public School Statistics Pocket Edition, at 3 (December 2009), available at
http://ritter.tea.state.tx.us/perfreport/pocked/2009/pocked0809.pdf. This means that of this
majority-minority cohort of 33,873 African-American and 94,571 Hispanic high school, or
128,444 minority graduates in all, UT admitted 728 African-Americans and 2,621
Hispanics—or 2.6% of the graduating minority seniors of Texas. See id. at 5; see generally
2008 Top Ten Percent Report at 6 tbl.1. As the percentage of Hispanic high school graduates
has continued to increase, over 57.3% of the high school graduating class of 2011, the most
recent year for which the Texas Education Agency has published statistics, are
African-American or Hispanic. Div. of Performance Reporting, Tex. Educ. Agency,
2011–12 Texas Public School Statistics Pocket Edition, at 1, available at
http://www.tea.state.tx.us/WorkArea/linkit.aspx?LinkIdentifier=id&ItemID=2147511872&li
bID=2147511859.
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                                       No. 09-50822
Opportunity Scholarship Program, the Presidential Achievement Scholarship
Program, the First Generation Scholarship, and increased outreach efforts.
Implemented in 1997, the Longhorn Opportunity Scholarship Program offers
scholarships to graduates of certain high schools throughout Texas that had
predominantly low-income student populations and a history of few, if any, UT
Austin matriculates. 74 It guarantees a specific number of scholarships for
applicants who attend these schools, graduate within the top ten percent, and
attend UT Austin. The Presidential Achievement Scholarship program is a
need-based scholarship that is awarded based on the applicant’s family income,
high school characteristics, and academic performance as compared to his or
her peers at that high school. 75 The First Generation Scholarship Program
targets applicants who are the first in their family to attend college. 76 UT
Austin invested substantial amounts of money in these scholarship programs.
Between 1997 and 2007, UT Austin awarded $59 million through these
scholarships. 77    Indeed, in 2007, UT Austin awarded $5.8 million for the
Longhorn Opportunity and Presidential Achievement scholarship programs
alone. 78
       UT Austin also expanded its outreach and recruitment efforts by
increasing its recruitment budget by $500,000, by adding three regional
admissions centers in Dallas, San Antonio, and Harlingen, 79 by engaging in
outreach programs that brought prospective students to UT Austin for day-



       74 Defs.’ Cross-Mot. Summ. J., Ex. Tab 9 to App., Orr Aff. at ¶ 7, Fisher, 645 F. Supp.
2d 587 (No. 08-263), ECF No. 96 [hereinafter Orr Aff.]. Initially, this program targeted 39
high schools, but expanded to 69 high schools by 2009. Id.
       75 Defs.’ Cross-Mot. Summ. J., Ex. Tab 4 to App., Orr Dep. at 15:17–21, Fisher, 645 F.

Supp. 2d 587 (No. 08-263), ECF No. 96 [hereinafter Orr Dep.]; Orr Aff. ¶ 6, ECF No. 96.
       76 Orr Aff. ¶ 8, ECF No. 96.
       77 Id. ¶ 9.
       78 Id. ¶ 9.
       79 Id. ¶ 11.

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                                  No. 09-50822
long or overnight visits, 80 and by hosting multi-day campus conferences for
high school counselors. 81      These regional admissions centers reflect a
substantial investment by UT Austin: the Dallas Admissions center employed
4 new full-time staff, the San Antonio Admissions Center employed 4 new full-
time staff, and the Harlingen Admissions Center employed 5 new full-time
staff. 82 The stated goal of these centers was “to increase [UT Austin’s] visibility
and interaction with prospective students, parents and high school
administrators within the geographic market they existed [sic]. These centers
allowed for increased quality and quantity of counseling, face to face
discussions, and programming within the prospective students’ home city.” 83
Additionally, staff from these regional centers helped organize “over 1,000
College Night/Day events held at High Schools across the state” and “around
1,000 Day Visits to High Schools around the state in an effort to encourage
prospective top 10% students to apply and enroll at [UT Austin].” 84 Relatedly,
the admissions office also held targeted recruiting events for students from the
Dallas, San Antonio, Houston, and Rio Grande Valley areas. These events
included the “Longhorn Lock-in,” wherein students from targeted high schools
would spend the night at UT Austin; the UT Scholars Program, wherein
scholarship recipients from targeted schools would spend the night at UT
Austin; and “Longhorn for a Day,” wherein students from targeted schools
would spend the day at UT Austin. 85 Finally, the admissions office would hold




      80 Id. ¶ 16–19.
      81 Id. ¶ 20.
      82 Id. ¶ 11.
      83 Id.
      84 Id.
      85 Id. ¶ 16–18.

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                                       No. 09-50822
four “Longhorn Saturday Events” on campus, where thousands of prospective
students and their families would come to UT Austin. 86
       In addition to the admissions office’s efforts, UT Austin’s Office of
Student Financial Services increased their outreach efforts by putting together
the Financial Aid Outreach Group to visit high schools to help prospective
students “understand the financial support offered by [UT Austin].” 87 The goal
of this Financial Aid Outreach Group “was to convince low income students
that money should not be a barrier to attending college.” 88
       “Narrow tailoring does not require exhaustion of every race neutral
alternative,” but rather “serious, good faith consideration of workable race-
neutral alternatives that will achieve the diversity the university seeks.” 89 Put
simply, this record shows that UT Austin implemented every race-neutral
effort that its detractors now insist must be exhausted prior to adopting a race-
conscious admissions program—in addition to an automatic admissions plan
not required under Grutter that admits over 80% of the student body with no
facial use of race at all.
                                              E
       Despite UT Austin’s rapid adoption of these race-neutral efforts, in
1997—the first freshman class after Hopwood—the percentage of African-
American admitted students fell from 4.37% to 3.41%, representing a drop
from 501 to 419 students even as the total number of admitted students
increased by 833 students. 90 Similarly, the percentage of Hispanic admitted



       86  Id. ¶ 19.
       87  Id. ¶ 12.
        88 Id.
        89 Grutter, 539 U.S. at 339.
        90 See 2006 Top Ten Percent Report 4 tbl.1. African-American admits comprised 3.34%

of the entering class of 1998; 4.32% of the class of 1999; 4.24% of the class of 2000; 3.49% of
the class of 2001; 3.67% of the class of 2002; and 3.89% of the class of 2003. See id.
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                                       No. 09-50822
students fell from 15.37% to 12.95%. 91 With UT Austin’s facially race-neutral
admissions program and outreach efforts, the percentage of African-American
and Hispanic admitted students eventually recovered to pre-Hopwood levels.
By 2004, African-American admitted students climbed to 4.82% and Hispanic
admitted students climbed to 16.21%. 92 But minority representation then
remained largely stagnant, within a narrow oscillating band, rather than
moving towards a critical mass of minority students. The hard data show that
starting in 1998 and moving toward 2004, African-American students
comprised 3.34%, then 4.32%, then 4.24%, then 3.49%, then 3.67%, then 3.89%,
and finally 4.82% of the admitted pool. 93               Similarly, Hispanic admitted
students represented 13.53%, then 14.27%, then 13.75%, then 14.25%, then
14.43%, then 15.60%, and finally 16.21% of the entering classes for those
respective years. 94
                                              V
                                              A
       Numbers aside, the Top Ten Percent Plan’s dependence upon a distinct
admissions door remained apparent. With each entering class, there was a gap
between the lower standardized test scores of students admitted under the Top
Ten Percent Plan and the higher scores of those admitted under holistic review.
For example, in 2008—the year Fisher applied for admission—81% of the seats
available to Texas residents were taken up by the Top Ten Percent Plan. 95
These Top Ten Percent students had an average standardized test score of



       91 Id. Hispanics represented 13.53% of the entering class of 1998; 14.27% of the class
of 1999; 13.75% of the class of 2000; 14.25% of the class of 2001; 14.43% of the class of 2002;
15.60% of the class of 2003; and 16.21% for 2004. See id.
       92 Id.
       93 Id.
       94 Id.
       95 2008 Top Ten Percent Report at 9 tbl.2.

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                                       No. 09-50822
1219, 66 points lower than the average standardized test score of 1285 attained
by Texas students admitted under holistic review or on the basis of a high AI. 96
A gap persisted not only among students overall and white students, but also
among racial and ethnic minority students. 97 This inheres in the reality that
the strength of the Top Ten Percent Plan is also its weakness, one that with its
single dimension of selection makes it unworkable standing alone.
                                              B
       The sad truth is that the Top Ten Percent Plan gains diversity from a
fundamental weakness in the Texas secondary education system. The de facto
segregation of schools in Texas 98 enables the Top Ten Percent Plan to increase



       96  Id. Data for the preceding years showed a similar test score gap. For the entering
Texas class of 2007, Top Ten Percent students had an average standardized test score of 1225
versus the average standardized test score of 1246 attained by non-Top Ten Percent Texas
students. Similarly, in 2006, Top Ten Percent students had an average standardized test
score of 1220 versus an average standardized test score of 1257 for non-Top Ten Percent
students. For 2005, Top Ten Percent students had an average standardized test score of 1226
versus an average standardized test score of 1277 for non-Top Ten Percent students. Finally,
in 2004, Top Ten Percent students had an average standardized test score of 1221 versus an
average standardized test score of 1258 for non-Top Ten Percent students. Id.
        97 Id. at 9, 13–15. For minority students, difference in average standardized test

scores between admitted Texas Top Ten Percent students and non-Top Ten Percent students
fluctuated in size but remained significant in the pre- and post-Grutter years leading up to
Fisher’s application. Among Hispanic students, the gap was 1100 versus 1189 in 2003; 1110
versus 1189 in 2004; 1122 versus 1193 in 2005; 1105 versus 1154 in 2006; and 1115 versus
1155 in 2007. For African-American students, the gap was 1063 versus 1065 in 2003; 1046
versus 1116 in 2004; 1059 versus 1118 in 2005; 1067 versus 1086 in 2006; and 1078 versus
1073 in 2007. See id. at 14–15. And a comparison of raw SAT scores does not
tell the full story, as SAT scores are scaled. See, e.g., CollegeBoard SAT, 2006
College-Bound       Seniors:   Total   Group    Profile    Report     (2006),     available  at
http://media.collegeboard.com/digitalServices/pdf/research/cb-seniors-2006-national-
report.pdf. Looking at the percentile point gives a better picture. For SAT test-takers in
2006, the 50th percentile combined score was 1020, while a 75th percentile score was 1180,
a mere 160 points higher. Id. at 2. Thus, a score differential of 80 points, for example, which
represents the approximate differential between holistic review and Top Ten Percent
Hispanic admittees, represents students scoring at approximately a 12–13 higher percentile.
        98 For example, only 8.1% of all students in Houston ISD are white. See Houston

Indep. Sch. Dist., 2011–2012 Facts and Figures 1 (2012). Similarly, only 4.6% of students in
the Dallas Independent School District are white. See Dallas Indep. Sch. Dist., Enrollment
Statistics (2012). And in San Antonio ISD, only 1.9% of the students are white. See San
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                                     No. 09-50822
minorities in the mix, while ignoring contributions to diversity beyond race.
We assume, as none here contends otherwise, that this “segregation [is] not
the ‘product . . . of state action but of private choices,’ having no ‘constitutional
implications’” and therefore it is “a question for the political branches to
decide[] the manner—which is to say the process—of its resolution.” 99 In short,
these demographics are directly relevant to the choices made by the political
branches of Texas as they acted against the backdrop of this unchallenged
reality in their effort to achieve a diverse student body. Texas is here an active
lab of experimentation embraced by the Court in Schuette v. BAMN. 100 We
reference here these unchallenged facts of resegregation not in justification of
a racial remedy, but because the racial makeup and relative performance of
Texas high schools bear on the workability of an alternative to any use of race
for 80% of student admissions to UT Austin. The political branches opted for
this facially race-neutral alternative—a narrow tailoring in implementation of
their goal of diversity.
       Fisher’s claim can proceed only if Texas must accept this weakness of the
Top Ten Percent Plan and live with its inability to look beyond class rank and
focus upon individuals. Perversely, to do so would put in place a quota system
pretextually race neutral. While the Top Ten Percent Plan boosts minority
enrollment by skimming from the tops of Texas high schools, it does so against




Antonio Indep. Sch. Dist., Facts and Figures (2012). This de facto school segregation stems
from residential patterns and means that students in the top ten percent of a highly
segregated school likely grew up in the same residential zone. The top 29 graduates from
Jack Yates High School in Houston live in the same predominately African-American
neighborhood of that city’s Third Ward, and thus likely experienced a similar cultural
environment. See Amicus Curiae Br. of the Family of Heman Sweatt (Oct. 31, 2013) at 27.
This pattern repeats itself across the high schools of Texas’s urban areas.
       99 Schuette v. BAMN, 134 S. Ct. 1623, 1642 (2014) (Scalia, J., concurring) (citing

Freeman v. Pitts, 503 U.S. 467, 495–96) (1992)).
       100 134 S. Ct. 1623 (2014).

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                                       No. 09-50822
this backdrop of increasing resegregation in Texas public schools, 101 where
over half of Hispanic students and 40% of black students attend a school with
90%–100% minority enrollment. 102
       Data for the year Fisher graduated high school show that gaps between
the quality of education available to students at integrated high schools and at
majority-minority schools are stark. Their impact upon UT Austin is direct.
The Top Ten Percent Plan draws heavily from the population concentrations
of the three major metropolitan areas of Texas—San Antonio, Houston, and
Dallas/Fort Worth—where over half of Texas residents live and where the
outcomes gaps of segregated urban schools are most pronounced. 103 The San
Antonio metropolitan area demonstrates this effect.                   Boerne Independent
School District (“ISD”) achieved a “recognized status” and five “Gold
Performance Acknowledgments” from the Texas Education Agency. 104 At this



       101  A striking visual depiction of de facto residential segregation, showing one colored
dot per person using 2010 census data, displays nearly monochrome units dividing the major
metropolitan areas of Texas. See Demographics Research Grp., Weldon Ctr. for Public
Serv., Univ. of Va., 2010 Racial Dot Map, CooperCenter.org (July 2013),
http://demographics.coopercenter.org/DotMap/index.html.
        102 Gary Orfield, John Kucsera & Genevieve Siegel-Hawley, Civil Rights Project,

E Pluribus . . . Separation: A Deepening Double Segregation for More Students 46, 50 (2012),
available      at    http://civilrightsproject.ucla.edu/research/k-12-education/integration-and-
diversity/mlk-national/e-pluribus...separation-deepening-double-segregation-for-more-
students/orfield_epluribus_revised_omplete_2012.pdf.
        103 The total Texas population for 2008 was 24,326,974. U.S. Census Bureau, Annual

Estimates of the Resident Population for the United States, Regions, States,
and Puerto Rico: April 1, 2000 to July 1, 2008, tbl.1, available at
http://www.census.gov/popest/data/historical/2000s/vintage_2008/.         Of these, 57.8%, or
14,059,594 people, lived in the Dallas/Fort Worth, Houston, and San Antonio metropolitan
areas. See U.S. Census Bureau, Annual Estimates of the Population of Metropolitan and
Micropolitan Statistical Areas: April 1, 2000 to July 1, 2008, tbl.1, available at
http://www.census.gov/popest/data/historical/2000s/vintage_2008/metro.html (showing that
6,300,006 lived in the Dallas/Fort Worth metropolitan area; 5,728,143 lived in the Houston
metropolitan area; and 2,031,445 lived in the San Antonio metropolitan area in 2008).
        104 2008–09 Academic Indicator System, Boerne ISD, Tex. Educ. Agency, 1 [hereinafter

Boerne ISD Indicator], http://ritter.tea.state.tx.us/perfreport/aeis/2009/district.srch.html
(accessed by searching for the relevant school district on the search engine).
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                                        No. 09-50822
relatively integrated school district, 79.9% of graduating students were white
and 19.2% were black or Hispanic. 105 Over 97% of students graduated high
school. 106 They achieved an average SAT score of 1072, and 61% were deemed
college-ready in both English and Math by the Texas Education Agency. 107 San
Antonio      ISD,    its   neighbor,     a   highly     segregated       and    “academically
unacceptable” district, 108 tells a different story. 86.8% of graduating students
were Hispanic and 8.2% were black, and over 90% were economically
disadvantaged. 109 Only 59.1% of the high school class of 2008 graduated; SAT
test takers achieved an average score of 811; and only 28% of graduates were
college-ready in both English and Math. 110
       A similar tale of two cities played out in the Houston area between
integrated Katy ISD, where 7.8% of graduating students were black, 23.2%
Hispanic, and 59.8% white, 111 and segregated Pasadena ISD, where 6.5% were
black, 64.8% Hispanic, and 24.3% white. 112 At Katy, a “recognized” district
with two “Gold Performance Acknowledgments,” 91.8% of students graduated,
with an average SAT score of 1080 and 60% college readiness in both English
and Math. 113 At Pasadena, only 67.8% graduated; SAT test-takers achieved




       105  Id. § II, at 1.
       106  Id. § I, at 11.
        107 Id. § I, at 12.
        108 2008–09 Academic Indicator System, San Antonio ISD, Tex. Educ. Agency, § II, at

1 [hereinafter San Antonio ISD Indicator], http://ritter.tea.state.tx.us/perfreport/aeis/2009/
district.srch.html (accessed by searching for the relevant school district on the search engine).
        109 Id. § II, at 1.
        110 Id. § I, at 11–12.
        111 2008–09 Academic Indicator System, Katy ISD, Tex. Educ. Agency, § II, at 1

[hereinafter      Katy      ISD Indicator],    http://ritter.tea.state.tx.us/perfreport/aeis/2009/
district.srch.html (accessed by searching for the relevant school district on the search engine).
        112 2008–09 Academic Indicator System, Pasadena ISD, Tex. Educ. Agency, § II, at 1

[hereinafter Pasadena ISD Indicator], http://ritter.tea.state.tx.us/perfreport/aeis/2009/
district.srch.html (accessed by searching for the relevant school district on the search engine).
        113 Katy ISD Indicator, § I, at 11–12.

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                                         No. 09-50822
an average score of 928; and 40% were college-ready in both English and
Math. 114
       The narrative repeats itself in the Dallas/Fort Worth metropolitan area.
For example, Keller ISD, a large and “recognized” school district with four
“Gold Performance Acknowledgements,” 115 is fairly integrated.                       72.3% of
graduating students are white, 12.2% are Hispanic, and 7.3% are African-
American. 116 The high school senior class of 2008 attained a graduation rate
of 88.7% and an average SAT score of 1043, and 53% were college-ready in both
English and Math. 117 The data for nearby Dallas ISD, one of the largest in the
state with 157,174 students and 7,308 high school seniors, 118 shows a highly
segregated school in stark contrast. There, black and Hispanic students make
up 90.9% of the graduating class, and 86.1% of all students are economically
disadvantaged. 119       Only 65.2% graduated high school; SAT test-takers
achieved an average score of 856; and only 29% of graduating seniors were
college-ready in both English and Math. 120
       The top decile of high schools in each of these districts—including large
numbers       of   students       from     highly     segregated,       underfunded,        and
underperforming schools—all qualified for automatic admission to UT Austin.
That these students were able to excel in the face of severe limitations in their
high school education and earn a coveted place in UT Austin’s prestigious



       114  Pasadena ISD Indicator, § I, at 11–12.
       115  2008–09 Academic Indicator System, Keller ISD, Tex. Educ. Agency, § II, at cover
[hereinafter Keller ISD Indicator], http://ritter.tea.state.tx.us/perfreport/aeis/2009/
district.srch.html (accessed by searching for the relevant school district on the search engine).
        116 Id. § II, at 1.
        117 Id. § I, at 11–12.
        118 2008–09 Academic Indicator System, Dallas ISD, Tex. Educ. Agency, § II, at 1

[hereinafter Dallas ISD Indicator], http://ritter.tea.state.tx.us/perfreport/aeis/2009/
district.srch.html (accessed by searching for the relevant school district on the search engine).
        119 Id.
        120 Id. § I, at 11–12.

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                                     No. 09-50822
freshman class is to be commended. That other students are left out—those
who fell outside their high school’s top ten percent but excelled in unique ways
that would enrich the diversity of UT Austin’s educational experience—leaves
a gap in an admissions process seeking to create the multi-dimensional
diversity that Bakke envisions.
                                          C
      UT     Austin’s     holistic    review    program—a        program      nearly
indistinguishable from the University of Michigan Law School’s program in
Grutter—was a necessary and enabling component of the Top Ten Percent Plan
by allowing UT Austin to reach a pool of minority and non-minority students
with records of personal achievement, higher average test scores, or other
unique skills. A variety of perspectives, that is differences in life experiences,
is a distinct and valued element of diversity. Yet a significant number of
students excelling in high-performing schools are passed over by the Top Ten
Percent Plan although they could bring a perspective not captured by
admissions along the sole dimension of class rank. For example, the experience
of being a minority in a majority-white or majority-minority school and
succeeding in that environment offers a rich pool of potential UT Austin
students with demonstrated qualities of leadership and sense of self. Efforts
to draw from this pool do not demean the potential of Top Ten admittees.
Rather it complements their contribution to diversity—mitigating in an
important way the effects of the single dimension process.
      UT Austin persuades that this reach into the applicant pool is not a
further search for numbers but a search for students of unique talents and
backgrounds who can enrich the diversity of the student body in distinct ways
including test scores, predicting higher levels of preparation and better
prospects for admission to UT Austin’s more demanding colleges and
ultimately graduation. It also signifies that this is a draw from a highly
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                                 No. 09-50822
competitive pool, a mix of minority and non-minority students who would
otherwise be absent from a Top Ten Percent pool selected on class rank, a
relative and not an independent measure across the pool of applicants.
                                       VI
      These realities highlight the difficulty of an approach that seeks to couch
the concept of critical mass within numerical terms. The numbers support UT
Austin’s argument that its holistic use of race in pursuit of diversity is not
about quotas or targets, but about its focus upon individuals, an opportunity
denied by the Top Ten Percent Plan. Achieving the critical mass requisite to
diversity goes astray when it drifts to numerical metrics.     UT Austin urges
that it has made clear that looking to numbers, while relevant, has not been
its measure of success; and that its goals are not captured by population ratios.
We find this contention proved, mindful that by 2011, Texas high school
graduates were majority-minority.
      UT Austin urges that its first step in narrow tailoring was the admission
of over 80% of its Texas students though a facially race-neutral process, and
that Fisher’s embrace of the sweep of the Top Ten Percent Plan as a full
achievement of diversity reduces critical mass to a numerical game and little
more than a cover for quotas. Fisher refuses to acknowledge this distinction
between critical mass—the tipping point of diversity—and a quota. And in
seeking to quantify “critical mass” as a rigid numerical goal, Fisher misses the
mark. Fisher is correct that if UT Austin defined its goal of diversity by the
numbers only, the Top Ten Percent Plan could be calibrated to meet that mark.
To do so, however, would deny the role of holistic review as a necessary
complement to Top Ten Percent admissions. We are persuaded that holistic
review is a necessary complement to the Top Ten Percent Plan, enabling it to
operate without reducing itself to a cover for a quota system; that in doing so,


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                                     No. 09-50822
its limited use of race is narrowly tailored to this role—as small a part as
possible for the Plan to succeed.
                                            A
      The Top Ten Percent Plan is dynamic, its take floating year to year with
the number of Texas high school graduates in the top ten percent of their class
that choose to capitalize on their automatic admission to the flagship
university. Its impact on the composition of each incoming class predictably
has grown dramatically, leaving ever fewer holistic review seats available for
the growing demographic of Texas high school graduates. In 1996, when the
Top Ten Percent Plan was introduced, it admitted 42% of the Texas incoming
class; by 2005, when the Grutter plan was introduced, the Plan occupied 69%
of the seats available to Texas residents; by 2008, when Fisher applied for
admission, it had swelled to 81%. 121 The increasing take of the Top Ten
Percent Plan both enhanced its strengths and exacerbated its inherent
weaknesses in composing the UT student body, as the overwhelming majority
of seats was granted to students without the facial use of race but also without
consideration of experiences beyond a single academic dimension. So as the
take of the Top Ten Percent Plan grew, so also did the necessity of a
complementary holistic admissions program to achieve the diversity
envisioned by Bakke.
       A quick glance in the public record of data since 2008 confirms that UT
Austin’s race-conscious holistic review program has a self-limiting nature, one
that complements UT Austin’s periodic review of the program’s necessity to
ensure it is limited in time. For the entering class of 2009, the year after Fisher


      121 In 1996, the Top Ten Percent Plan admitted 41.8% of the incoming class of Texas
students; 36.6% in 1997; 41.1% in 1998; 44.9% in 1999; 47.4% in 2000; 51.3% in 2001; 54.4%
in 2002; 70.4% in 2003; 66.3% in 2004; 68.7% in 2005; 71.4% in 2006; 70.6% in 2007; and
80.9% in 2008. See 2006 Top Ten Percent Report at 5 tbl.1a (data for years 1996–2005); 2008
Top Ten Percent Report at 7 tbl.1a (data for 2006–2008).
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                                       No. 09-50822
applied for admission, the Top Ten Percent Plan’s take of the seats available
for Texas residents swelled to 86% and remained at 85% in 2010. 122
       This trend did not escape the Texas Legislature. Consistent with its
long-standing view of holistic review as a crucial complement to the Top Ten
Percent Plan, Texas passed Senate Bill 175 of the 81st Texas Legislature (SB
175) in 2009. SB 175 modified the Top Ten Percent Plan for UT Austin to
authorize the University “to limit automatic admission to no less than 75% of
its enrollment capacity for first-time resident undergraduate students
beginning with admission for the entering class of 2011 and ending with the
entering class of 2015.” 123 Pursuant to SB 175, UT Austin restricted automatic
admissions to the top 7% for Fall 2014 and Fall 2015 applicants, to the top 8%
for Fall 2011 and Fall 2013 applicants, and to the top 9% for Fall 2012
applicants. 124    All remaining slots continue to be filled through holistic
review. 125 For the entering class of 2011, the first affected by SB 175, 74% of
enrolled Texas residents were automatically admitted (with a higher
percentage of offers of admission), a figure that again was pushed upward by
inherent population forces, to 77% for the entering Texas class of 2013. 126
       In the growing shadow of the Top Ten Percent Plan, there was a cautious,
creeping numerical increase in minority representation following the inclusion
of race and ethnicity in the holistic review program, a testament, UT Austin
says, to its race-conscious holistic review. We must agree. From 2004, the last



       122  See 2010 Top Ten Percent Report at 8 tbl.1a.
       123  William Powers, Jr., Univ. of Tex. at Austin, Report to the Governor, the Lieutenant
Governor, and the Speaker of the House of Representatives on the Implementation of SB 175,
at 4 (Dec. 31, 2011) [hereinafter 2011 Powers Report], available at
https://www.utexas.edu/student/admissions/research/SB_175_Report_for_2011.pdf.
        124 Automatic Admission, Univ. of Tex. at Austin (Sept. 16, 2013, 2:56 PM),

http://bealonghorn.utexas.edu/freshmen/decisions/automatic-admission.
        125 Id.
        126 2013 Powers Report at 29 tbl.4.1.

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                                        No. 09-50822
facially race-neutral holistic review program year, to 2005, the first year that
race and ethnicity were considered, the percentage of African-American
students admitted to UT Austin climbed from 4.82% to 5.05%. The trend has
continued since, climbing to 5.13% in 2006, 5.41% in 2007, and 5.67% in 2008.
Similarly, the percentage of Hispanic admitted students climbed from 16.21%
in 2004, to 17.88% in 2005, 18.08% in 2006, 19.07% in 2007, and 20.41% in
2008. 127 The modest numbers only validate the targeted role of UT Austin’s
use of Grutter. Nor can they be viewed as a pretext for quota seeking—an
assertion of Fisher’s belied by the reality that over this time frame graduating
Texas high school seniors approached being majority-minority. The small
increases do not exceed critical mass nor imply a quota but instead bring a
distinct dimension of diversity to the Top Ten Percent Plan. To be sure, critical
mass can be used as a cover for quotas and proportionality goals, but it is not
inevitable; UT Austin persuades that viewed objectively, under its structure,
its efforts in holistic review have not been simply to expand the numbers but
rather the diversity of individual contributions.
      Turning in the opposite direction from her claim of racial quotas, Fisher
faults UT Austin’s holistic use of race for its de minimis contribution to
diversity. UT Austin replies that this turns narrow tailoring upside down. We
agree. Holistic review allows selection of an overwhelming number of students
by facially neutral measures and for the remainder race is only a factor of
factors. Fisher’s focus on the numbers of minorities admitted through the
holistic gate relative to those admitted through the Top Ten Percent Plan is
flawed, ignoring its role as a necessary complement to the Plan. The apt
question is its contribution to the richness of diversity as envisioned by Bakke
against the backdrop of the Top Ten Percent Plan. That is its palliative role


      127   2008 Top Ten Percent Report at 6 tbl.1.
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                                 No. 09-50822
claimed by UT Austin. So viewed, holistic review’s low production of numbers
is its strength, not its weakness.
      In sum, Fisher points to the numbers and nothing more in arguing that
race-conscious admissions were no longer necessary because a “critical mass”
of minority students had been achieved by the time Fisher applied for
admission—a head count by skin color or surname that is not the diversity
envisioned by Bakke and a measure it rejected. In 2007, Fisher emphasizes,
there were 5.8% African-American and 19.7% Hispanic enrolled students,
which exceeds pre-Hopwood levels and the minority enrollment at the
University of Michigan Law School examined in Grutter. But an examination
that looks exclusively at the percentage of minority students fails before it
begins. Indeed, as Grutter teaches, an emphasis on numbers in a mechanical
admissions process is the most pernicious of discriminatory acts because it
looks to race alone, treating minority students as fungible commodities that
represent a single minority viewpoint. Critical mass, the tipping point of
diversity, has no fixed upper bound of universal application, nor is it the
minimum threshold at which minority students do not feel isolated or like
spokespersons for their race. Grutter defines critical mass by reference to a
broader view of diversity rather than by the achievement of a certain quota of
minority students. Here, UT Austin has demonstrated a permissible goal of
achieving the educational benefits of diversity within that university’s distinct
mission, not seeking a percentage of minority students that reaches some
arbitrary size.
      Implicitly conceding the need for holistic review, Fisher offers
socioeconomic disadvantage as a race-neutral alternative in holistic review.
UT Austin points to widely accepted scholarly work concluding that “there are
almost six times as many white students as black students who both come from
[socio-economically disadvantaged] families and have test scores that are
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                                    No. 09-50822
above the threshold for gaining admission at an academically selective college
or university.” 128   At bottom, the argument is that minority students are
disadvantaged by class, not race; the socioeconomic inquiry is a neutral proxy
for race. Bakke accepts that skin color matters—it disadvantages and ought
not be relevant but it is. We are ill-equipped to sort out race, class, and
socioeconomic structures, and Bakke did not undertake to do so. To the point,
we are ill-equipped to disentangle them and conclude that skin color is no
longer an index of prejudice; that we would will it does not make it so.
      We are satisfied that UT Austin has demonstrated that race-conscious
holistic review is necessary to make the Top Ten Percent Plan workable by
patching the holes that a mechanical admissions program leaves in its ability
to achieve the rich diversity that contributes to its academic mission—as
described by Bakke and Grutter.
                                           B
      Over the history of holistic review, its intake of students has declined,
minority and non-minority, and changed the profile of the students it admits—
the growing number of applicants and increasing take of the Top Ten Percent
Plan raises the competitive bar each year, before race is ever considered, for
the decreasing number of seats filled by holistic review. Those admitted are
those that otherwise would be missed in the diversity mix— for example, those
with special talents beyond class rank and identifiable at the admission gate,
and minorities with the experience of attending an integrated school with
better educational resources.
      The data also show that white students are awarded the overwhelming
majority of the highly competitive holistic review seats. As we have explained



      128 Supp. Br. of Appellee at 30 (citing William G. Bowen & Derek Bok, The Shape of
the River 51 (1998)).
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                                     No. 09-50822
and as shown in Appendix 2, the increasing take of the Top Ten Percent Plan
is inherently self-limiting. UT Austin has demonstrated that it is on a path
that each year reduces the role of race.           After the Top Ten Percent Plan
swallowed 81% of the seats available for Texas students in 2008, for example,
white Texan students admitted through holistic review occupied an additional
12% of the overall seats. Only 2.4% and 0.9% of the incoming class of Texas
high school graduates were Hispanic and black students admitted through
holistic review.      That is, admission via the holistic review program—
overwhelmingly and disproportionally of white students—is highly competitive
for minorities and non-minorities alike. These data persuade us of the force of
UT Austin’s argument that a limited use of race is necessary to target
minorities with unique talents and higher test scores to add the diversity
envisioned by Bakke to the student body.
      Numbers are not controlling but they are relevant to UT Austin’s
claimed need for holistic review as a necessary component of its admission
program.     In 2005, the first class that included race and ethnicity in holistic
review, 176 (29%) of 617 total African-American admitted students were
admitted via holistic review. 129 Following years were similar, with 32% of
admitted African-Americans in 2006, 35% in 2007, and 20% in 2008. 130
Likewise, significant percentages of Hispanic admitted students were
admitted through the holistic review program, making up 24% of the admitted
Hispanic pool in 2005, 26% in 2006, 25% in 2007, and 15% in 2008. 131 These
numbers directly support UT Austin’s contention that holistic use of race plays
a necessary role in enabling it to achieve diversity while admitting upwards of



      129 See 2008 Top Ten Percent Report at 8 tbl.2 (providing the percentage of students
admitted through the Top Ten Percent Plan by racial and ethnic background).
      130 Id.
      131 Id.

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                                  No. 09-50822
80% of its Texas students by facially neutral standards, drawing as it does from
a pool not measured solely by class rank in largely segregated schools.
                                        C
      Recall the 3.5 AI threshold that excluded Fisher. Holistic review for the
colleges to which Fisher applied only admitted applicants—minority or non-
minority—with a minimum AI score of 3.5. This effectively added to the mix a
pool of applicants from which those colleges could admit students with higher
test scores and a higher predicted level of performance, despite being outside
the top ten percent of their class, as part of a greater mosaic of talents. Insofar
as some dispersion of minority students among many classes and programs is
important to realizing the educational benefits of diversity, race-conscious
holistic review is a necessary complement to the Top Ten Percent Plan by
giving high-scoring minority students a better chance of gaining admission to
UT Austin’s competitive academic departments. Fisher’s proffered solution is
for UT Austin’s more competitive academic programs to lower their gates. But
this misperceives the source of the AI threshold for admission into the
competitive colleges: These programs fill 75% of their seats from the pool of
students automatically admitted under the Top Ten Percent Plan. The large
number of holistic review candidates competing for the quarter of the
remaining seats dictates the high AI threshold that all applicants—minority
or non-minority—must meet to qualify for admission. Fisher also points to
weak dispersal across classes as evidence of UT Austin’s pursuit of numbers.
It is precisely the opposite. We repeat, holistic review’s search is for diversity,
as envisioned by Bakke, one benefit of which is its attendant mitigation of the
clustering tendencies of the Top Ten Percent Plan.
      Fisher responds that, even if necessary, UT Austin could never narrowly
tailor a program that achieves classroom diversity.         In particular, Fisher
suggests that it is impossible to obtain classroom-level diversity without some
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                                    No. 09-50822
sort of fixed curriculum or lower school- or major-level standards.                This
argument again misses the mark by defining diversity only by numbers. UT
Austin does not suggest that the end point of this exercise is a specific measure
of diversity in every class or every major. Instead, such measures are relevant
but not determinative signals of a want of the array of skills needed for
diversity. In other words, diversity in the student body surely produces a
degree of intra-classroom and intra-major diversity, with the “important and
laudable” benefit recognized in Grutter of “classroom discussion [being] livelier,
more spirited, and simply more enlightening and interesting when the
students have the greatest possible variety of backgrounds.” 132 When the
holistic review program was modified to be race-conscious, 90% of classes had
one or zero African-American students, 46% had one or zero Asian-American
students, and 43% had one or zero Hispanic students. 133 This represented a
decreasing degree of minority classroom dispersion since the adoption of the
Top Ten Percent Plan.         This does not mean that there will be some set
percentage of African-American nuclear physics majors. But this does mean
that UT Austin’s effort to ensure that African-American students with a broad
array of skills are in the mix is both permissible and necessary.
                                          VII
      Interlacing the Top Ten Percent Plan, with its dependence upon
segregated schools to produce minority enrollment, with a plan that did not
consider race until it had a universe of applicants clearing a high hurdle of
demonstrated scholastic performance strongly supports UT Austin’s assertion
that its packaging of the two was necessary in its pursuit of diversity.           This
hurdle is a product of a growing number of applicants competing for an ever-


      132Grutter, 539 U.S. at 330 (quotation marks and citation omitted).
      133See Defs.’ Cross-Mot. Summ. J., Ex. Tab 11 to App., Walker Aff. at ¶ 11, Fisher,
645 F. Supp. 2d 587 (No. 08-263), ECF No. 96.
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                                         No. 09-50822
shrinking number of holistic review seats, creating one of the most competitive
admissions processes in the country. And when race enters it is deployed in the
holistic manner of Grutter as a factor of a factor. Even then the minority
student that receives some boost for her race will have survived a fierce
competition. These minorities are in a real sense, along with the non-minorities
of this universe, overlooked in a facially neutral Top Ten Percent Plan that
considers only class rank. While outside the Top Ten Percent Plan’s reach, they
represent both high scholastic potential and high achievement in majority-
white schools. We are persuaded that their absence would directly blunt
efforts for a student body with a rich diversity of talents and experiences.
      “Context matters when reviewing race-based governmental action under
the Equal Protection Clause,” 134 and UT Austin’s admissions program is a
unique creature.          “[S]trict scrutiny must take relevant differences into
account”—[i]ndeed, as [the Court has] explained, that is its fundamental
purpose.” 135 The precise context of UT Austin’s admissions demonstrates that
Fisher’s charge is belied by this record. Her argument refuses to accept the
admission of over 80% of its Texas students without facial consideration of race
as any part of narrow tailoring, and critically refuses to accept that the process
adopted for the remaining 20% is essential. It rests on the untenable premise
that a Grutter plan for 100% of the admissions is to be preferred. UT Austin’s
efforts to achieve diversity without facial consideration of race, its narrow
tailoring of its admission process, in one of the country’s largest states, offers
no template for others.




      134   Grutter, 539 U.S. at 327 (citing Gomillion v. Lightfoot, 364 U.S. 339, 343–44 (1960)).
      135   Id. (internal quotation marks and citations omitted).
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                                  No. 09-50822
                                       VIII
      In sum, it is suggested that while holistic review may be a necessary and
ameliorating complement to the Top Ten Percent Plan, UT Austin has not
shown that its holistic review need include any reference to race, this because
the Plan produces sufficient numbers of minorities for critical mass. This
contention views minorities as a group, abjuring the focus upon individuals—
each person’s unique potential. Race is relevant to minority and non-minority,
notably when candidates have flourished as a minority in their school—
whether they are white or black. Grutter reaffirmed that “[j]ust as growing up
in a particular region or having particular professional experiences is likely to
affect an individual’s views, so too is one’s own, unique experience of being a
racial minority in a society, like our own, in which race still matters.” We are
persuaded that to deny UT Austin its limited use of race in its search for
holistic diversity would hobble the richness of the educational experience in
contradiction of the plain teachings of Bakke and Grutter. The need for such
skill sets to complement the draws from majority-white and majority-minority
schools flows directly from an understanding of what the Court has made plain
diversity is not. To conclude otherwise is to narrow its focus to a tally of skin
colors produced in defiance of Justice Kennedy’s opinion for the Court which
eschewed the narrow metric of numbers and turned the focus upon individuals.
This powerful charge does not deny the relevance of race. We find force in the
argument that race here is a necessary part, albeit one of many parts, of the
decisional matrix where being white in a minority-majority school can set one
apart just as being a minority in a majority-white school—not a proffer of
societal discrimination in justification for use of race, but a search for students
with a range of skills, experiences, and performances—one that will be
impaired by turning a blind eye to the differing opportunities offered by the
schools from whence they came.
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                                  No. 09-50822
      It is settled that instruments of state may pursue facially neutral policies
calculated to promote equality of opportunity among students to whom the
public schools of Texas assign quite different starting places in the annual race
for seats in its flagship university. It is equally settled that universities may
use race as part of a holistic admissions program where it cannot otherwise
achieve diversity. This interest is compelled by the reality that university
education is more the shaping of lives than the filling of heads with facts—the
classic assertion of the humanities.     Yet the backdrop of our efforts here
includes the reality that accepting as permissible policies whose purpose is to
achieve a desired racial effect taxes the line between quotas and holistic use of
race towards a critical mass. We have hewed this line here, persuaded by UT
Austin from this record of its necessary use of race in a holistic process and the
want of workable alternatives that would not require even greater use of race,
faithful to the content given to it by the Supreme Court. To reject the UT
Austin plan is to confound developing principles of neutral affirmative action,
looking away from Bakke and Grutter, leaving them in uniform but without
command—due only a courtesy salute in passing.
      For these reasons, we AFFIRM.




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                                     No. 09-50822
                                     Appendix 1 136




      136 Data for 1996–2005 comes from the 2006 Top Ten Percent Report at 15–24 tbl.7a–
7j. Data for 2006 comes from the 2007 Top Ten Percent Report. See Office of Admissions,
Univ. of Tex. at Austin, Implementation and Results of the Texas Automatic Admissions Law
(HB 588) at the University of Texas at Austin: Demographic Analysis of Entering Freshmen
Fall 2007 and Academic Performance of Top 10% and Non-Top 10% Students Academic Years
2002–2006      (Report    10),  at    20   tbl.7e   (Oct.    28,   2007),   available   at
http://www.utexas.edu/student/admissions/research/HB588-Report10.pdf. Data for 2007
comes from the 2008 Top Ten Percent Report at 16 tbl.7. Data for 2008 comes from the 2009
Top Ten Percent Report at 15 tbl.7.
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                                No. 09-50822
                                Appendix 2 137




  137   See supra note 136.
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                                  No. 09-50822
EMILIO M. GARZA, Circuit Judge, dissenting:
      In vacating our previous opinion, Fisher v. Univ. of Tex. at Austin, 631
F.3d 213 (5th Cir. 2011), the Supreme Court clarified the strict scrutiny
standard as it applies to cases involving racial classifications in higher
education admissions: Now, reviewing courts cannot defer to a state actor’s
argument that its consideration of race is narrowly tailored to achieve its
diversity goals. Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411, 2420 (2013).
Although the University has articulated its diversity goal as a “critical mass,”
surprisingly, it has failed to define this term in any objective manner.
Accordingly, it is impossible to determine whether the University’s use of racial
classifications in its admissions process is narrowly tailored to its stated goal—
essentially, its ends remain unknown.
      By holding that the University’s use of racial classifications is narrowly
tailored, the majority continues to defer impermissibly to the University’s
claims. This deference is squarely at odds with the central lesson of Fisher. A
proper strict scrutiny analysis, affording the University “no deference” on its
narrow tailoring claims, compels the conclusion that the University’s race-
conscious admissions process does not survive strict scrutiny.
                                        I
      As a preliminary matter, Fisher has standing to pursue this appeal, but
not because, as the majority contends, the Supreme Court’s opinion does “not
allow our reconsideration [of the issue of standing].” Ante, at 6.
      Federal courts have an affirmative duty to verify jurisdiction before
proceeding to the merits. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94–95 (1998). Although standing was actively contested before the Supreme




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                                       No. 09-50822

Court, and although the Court’s opinion is silent about the issue, 1 the Supreme
Court has specifically warned against inferring jurisdictional holdings from its
opinions not explicitly addressing that subject. See Steel Co., 523 U.S. at 91.
Accordingly, the issue of standing remains open, and this court is obliged to
address it. Id. at 94–95.
      In our previous opinion, we held that Fisher had standing to “challenge
[her] rejection and to seek money damages for [her] injury.” Fisher, 631 F.3d
at 217. Only one relevant fact has changed since then—in 2012, Fisher
graduated from Louisiana State University. The University contends that by
graduating, “her forward-looking request for relief became moot” because she
could no longer seek reconsideration of her undergraduate application. Fisher’s
graduation does not alter our previous standing analysis because, as she
correctly observes, that determination did not depend on a claim for forward-
looking injunctive relief. Id. We held that Fisher had standing to seek nominal
monetary damages, and we should reach the same conclusion now.
      The University relies on Texas v. Lesage, 528 U.S. 18 (1999) (per curiam),
for the proposition that Fisher lacks standing because she would not have been
admitted regardless of her race. But even if Lesage is a standing case (which is
a debatable premise—the case seems to address statutory liability under §
1983), it does not affect the outcome here. Lesage stands for the proposition
that a plaintiff challenging governmental use of racial classifications cannot
prevail if “it is undisputed that the government would have made the same
decision regardless” of such use. Id. at 21 (emphasis added). The University
asserts that Fisher would not have been admitted even if she had a “perfect”
PAI score. The majority agrees. Ante, at 5 (“If [Fisher] had been a minority the
result would have been the same.”). While Fisher would have been denied


      1 As is Justice Scalia’s concurrence, Fisher, 133 S. Ct. at 2422, Justice Thomas’s
concurrence, id. at 2422–32, and Justice Ginsburg’s dissent, id. at 2432–34.
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admission during the 2008 admissions cycle even if she had a top PAI score,
this is not the relevant inquiry. Rather, as Fisher explains, the proper question
is whether she would have fallen above the admissions cut-off line if that line
had been drawn on a race-neutral distribution of all applicants’ scores. This
record does not indicate whether Fisher would have been admitted if race were
removed from the admissions process altogether. At the least, this is a complex
question that is far from “undisputed.” See Lesage, 528 U.S. at 21. Even the
University acknowledges that the answer to this question is practically
unknowable: It concedes that re-engineering the 2008 admissions process by
retroactively removing consideration of race is virtually impossible since race
has an immeasurable, yet potentially material, impact on the placement of the
final admissions cut-off lines for all programs. In sum, the record does not show
that   Fisher’s    rejection   under    a   race-neutral     admissions      process    is
“undisputed,” and remanding to the district court could not alter the record in
this regard.
       The University further challenges Fisher’s standing on redressability
grounds. The University’s theory is that even if Fisher had been admitted
through the race-conscious admissions program, and had not suffered the
injury of rejection, she still would have paid the non-refundable application fee.
Thus, says the University, because the application fee has no causal link to her
injury, any judicial relief would fail to provide redress. This argument
misconstrues the nature of Fisher’s alleged injury—it is not her rejection, but
the denial of equal protection of the laws during the admissions decision
process. Fisher correctly explains that the application fee represents nominal
damages for the alleged constitutional harm stemming from the University’s
improper use of racial classifications. 2 Because this harm would have befallen


       See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 308 n.11 (1986) (“[N]ominal
       2

damages, and not damages based on some undefinable ‘value’ of infringed rights, are the
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Fisher whether or not she was ultimately admitted to the University, the non-
refundable nature of the application fee is irrelevant. 3
                                            II
       Having confirmed our jurisdiction, our task is to apply strict scrutiny
without any deference to the University’s claims. Because Fisher effected a
change in the law of strict scrutiny, and corrected our understanding of that
test as applied in Grutter v. Bollinger, 539 U.S. 306 (2003), I first review the
current principles governing this “searching examination.” Fisher, 133 S. Ct.
at 2420.
       The Equal Protection Clause of the Fourteenth Amendment provides
that no State shall “deny to any person within its jurisdiction the equal
protection of the laws.” U.S. CONST. amend. XIV. It is canonical that the
Constitution treats distinctions between citizens based on their race or ethnic
origin as suspect, see, e.g., Bolling v. Sharpe, 347 U.S. 497, 499 (1954), and that
the Equal Protection Clause “demands that racial classifications . . . be
subjected to the most rigid scrutiny,” Loving v. Virginia, 388 U.S. 1, 11 (1967).
Thus, strict scrutiny begins from the fundamental proposition that “any official
action that treats a person differently on account of his race or ethnic origin is
inherently suspect.” Fullilove v. Klutznick, 448 U.S. 488, 523 (1980) (Stewart,
J., dissenting). This is “because racial characteristics so seldom provide a
relevant basis for disparate treatment.” Richmond v. J.A. Croson Co., 488 U.S.
469, 505 (1989). “Distinctions between citizens solely because of their ancestry


appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable
injury.”); Devbrow v. Kalu, 705 F.3d 765, 769 (7th Cir. 2013) (“[N]ominal damages are
available as a remedy . . . [for an abstract injury].”).

       3 The University’s argument that Arizonans for Official English v. Arizona, 520 U.S.
43 (1997) governs Fisher’s nominal monetary damages claim is without merit. Fisher does
not rely solely on a “general prayer for relief” to save a case otherwise falling outside an
Article III case or controversy from dismissal. Id. at 71. Fisher’s original complaint
specifically requested monetary damages.
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are by their very nature odious to a free people.” Fisher, 133 S. Ct. at 2418
(quoting Rice v. Cayetano, 528 U.S. 495, 517 (2000)).
       When a state university makes race-conscious admissions decisions,
those decisions are governed by the Equal Protection Clause, even though they
may appear well-intended. See Regents of the Univ. of Cal. v. Bakke, 438 U.S.
265, 297 (1978) (opinion of Powell, J.). Simply put, the Constitution does not
treat race-conscious admissions programs differently because their stated aim
is to help, not to harm.
       Under strict scrutiny, a university’s use of racial classifications is
constitutional only if necessary and narrowly tailored to further a compelling
governmental interest. See Grutter, 539 U.S. at 326. It is well-established that
there is a compelling governmental interest in obtaining the educational
benefits of a diverse student body. See Bakke, 438 U.S. at 311–12 (holding that
the “attainment of a diverse student body” is a “constitutionally permissible
goal for an institution of higher education”). Grutter and Gratz v. Bollinger,
539 U.S. 244 (2003), confirmed this. See Fisher, 133 S. Ct at 2418. 4 “The
diversity that furthers a compelling [governmental] interest encompasses a far
broader array of qualifications and characteristics of which racial or ethnic
origin is but a single though important element.” Bakke, 438 U.S. at 515. Thus,
diversity cannot be defined by a “specified percentage of a particular group,”
id. at 307, because such a definition would be “patently unconstitutional racial
balancing,” Grutter, 539 U.S. at 330. In applying strict scrutiny, it is proper
for courts to defer to a university’s decision to pursue the compelling
governmental interest of diversity based on its “educational judgment that



       4 These principles are not challenged in this case. See infra note 8. However, I continue
to believe that Grutter’s discussion of the “educational benefits of diversity,” drawing directly
from the principles established in Bakke, “remains suspended at the highest levels of
hypothesis and speculation,” Fisher, 631 F.3d at 255 (Garza, J., specially concurring).
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such diversity is essential to its educational mission.” Id. at 328. But, deference
to the University is appropriate on this point, and this point alone. Fisher, 133
S. Ct. at 2421.
      Once a university has decided to pursue this compelling governmental
interest, it must prove that the means chosen “to attain diversity are narrowly
tailored to that goal.” Fisher, 133 S. Ct. at 2420. In this, the strict scrutiny test
takes the familiar form of a “means-to-ends” analysis: The compelling
governmental interest is the ends, and the government program or law—here,
the University’s race-conscious admissions program—is the means. Strict
scrutiny places the burden of proving narrow tailoring firmly with the
government. See Johnson v. California, 543 U.S. 499, 505 (2005). And,
furthermore, narrow tailoring must be established “with clarity.” Fisher, 133
S. Ct. at 2418.
      Before this case, the Supreme Court had issued only three major
decisions addressing affirmative action in higher education admissions: Bakke,
Gratz, and Grutter. In Fisher, the Court made clear that this line of cases does
not stand apart from “broader equal protection jurisprudence.” Id. at 2418.
Rather, “the analysis and level of scrutiny applied to determine the validity of
[a racial classification] do not vary simply because the objective appears
acceptable . . . .” Id. at 2421 (quoting Miss. Univ. for Women v. Hogan, 458 U.S.
718, 724 n.9 (1982)).
      In Fisher, the Supreme Court modified the narrow tailoring calculus
applied in higher education affirmative action cases. While the overarching
principles from Bakke, Gratz, and Grutter—that a university can have a
compelling interest in attaining the educational benefits of diversity, and that
its admissions program must be narrowly tailored to serve this interest—were
taken “as given,” id. at 2417–18, the Fisher Court altered the application of
those principles in a critical way. Now, courts must give “no deference,” to a

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state actor’s assertion that its chosen “means . . . to attain diversity are
narrowly tailored to that goal.” Id. at 2420. In so doing, the Fisher Court
embraced Justice Kennedy’s position on “deference” from Grutter. 5 Thus, under
the current principles governing review of race-conscious admissions
programs, providing any deference to a state actor’s claim that its use of race
is narrowly tailored is “antithetical to strict scrutiny, not consistent with it.”
Grutter, 539 U.S. at 394 (Kennedy, J., dissenting).
       Because the higher-education affirmative action cases do not stand apart
from “broader equal protection jurisprudence,” Fisher, 133 S. Ct. at 2418, strict
scrutiny must be applied with the same analytical rigor deployed in those other
contexts. Put simply, there is no special form of strict scrutiny unique to higher
education admissions decisions. Accordingly, we must now evaluate narrow
tailoring by ensuring that “the means chosen ‘fit’ the [compelling governmental
interest] so closely that there is little or no possibility that the motive for the
classification was illegitimate racial prejudice or stereotype.” Croson, 488 U.S.
at 493. 6 Narrow tailoring further requires that “the reviewing court verify that
it is necessary for a university to use race to achieve the educational benefits



       5  See Grutter, 539 U.S. at 388 (Kennedy, J., dissenting) (“[T]he majority proceeds to
nullify . . . rigorous judicial review, with strict scrutiny as the controlling standard . . . . The
Court confuses deference to a university’s definition of its educational objective with
deference to the implementation of this goal.”). I agree with the majority that Fisher
represents a decisive shift in the law. See ante, at 10 (“Bringing forward Justice Kennedy’s
dissent in Grutter, the Supreme Court faulted the district court’s and this Court’s review of
UT Austin’s means to achieve the permissible goal of diversity . . . .”); see also Erwin
Chemerinsky, The Court Affects Each of Us, 16 Green Bag 2d 361, 364 (2013) (“[Fisher] adopts
a tougher, less sympathetic tone when it comes to affirmative action programs. For example,
in Grutter, the Court spoke of the need to defer to the judgment of colleges and universities.
In Fisher, the Court said that such deference was appropriate only as to the importance of
diversity; there is no deference given as to whether race is necessary to achieve it.”).

       6 We need not determine whether the “strong basis in evidence” test from Croson
applies in this case. See Croson, 488 U.S. at 510. Even without this test, the University fails
to carry its strict scrutiny burden of proving that its race-conscious admissions policy is
necessary to further its diversity interest.
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of diversity.” Fisher, 133 S. Ct. at 2420 (internal citations and quotations
omitted). To do so, we must carefully inquire into whether the University
“could achieve sufficient diversity without using racial classifications.” Id.
Establishing narrow tailoring does not require the University to show that it
exhausted every possible race-neutral option, but it must meet its “ultimate
burden of demonstrating, before turning to racial classifications, that
available, workable race-neutral alternatives do not suffice.” Id.
       Of course, all of the above must be underscored by the principle that
using racial classifications is permissible only as a “last resort to achieve a
compelling interest.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No.
1, 551 U.S. 701, 790 (2007) (Kennedy, J., concurring). 7
                                            III
       Here, the University has framed its goal as obtaining a “critical mass” of
campus diversity. To uphold the use of race under strict scrutiny, courts must
find narrow tailoring through a close “fit” between this goal and the admissions
program’s consideration of race. 8 Accordingly, the controlling question becomes
the definition of “critical mass”—the University’s stated goal. In order for us to
determine whether its use of racial classifications in the admissions program
is narrowly tailored to its goal, the University must explain its goal, and do so
“with clarity.” Fisher, 133 S. Ct. at 2418. On this record, it has not done so.


       7 Notwithstanding the majority’s brief discussion of Schuette v. Coalition to Defend
Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means
Necessary (BAMN), 134 S. Ct. 1623 (2014), ante at 25, that case “is not about the
constitutionality, or the merits, of race-conscious admissions policies in higher education,”
and does not impact the analysis in today’s case. Schuette, 134 S. Ct. at 1630.

       8 The University’s decision to pursue the educational benefits of diversity, as
established in Bakke, is not challenged in this case. See Fisher, 133 S. Ct. at 2419 (“[T]he
parties here do not ask the Court to revisit that aspect of Grutter’s holding.”). Our only
concern is whether the University’s means—its race-conscious holistic admissions program—
are narrowly tailored to its diversity objective.

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      The majority entirely overlooks the University’s failure to define its
“critical mass” objective for the purposes of assessing narrow tailoring. This is
the crux of this case—absent a meaningful explanation of its desired ends, the
University cannot prove narrow tailoring under its strict scrutiny burden.
Indeed, the majority repeatedly invokes the term “critical mass” without even
questioning its definition. See, e.g., ante, at 23 (“But minority representation
then remained largely stagnant, within a narrow oscillating band, rather than
moving towards a critical mass of minority students.”); id. at 30 (“Achieving
the critical mass requisite to diversity goes astray when it drifts to numerical
metrics.”); id. (“Fisher refuses to acknowledge this distinction between critical
mass—the tipping point of diversity—and a quota.”); id. at 34 (“Critical mass,
the tipping point of diversity, has no fixed upper bound of universal
application, nor is it the minimum threshold at which minority students do not
feel isolated or like spokespersons for their race.”). Under Fisher, it is not
enough for a court to simply state, as does the majority, that it is not deferring
to the University’s narrow tailoring arguments. See, e.g., id., at 17 (“Affording
no deference, we look for narrow tailoring . . . .”). Rather, the reviewing court’s
actual analysis must demonstrate that “no deference” has been afforded.
Fisher, 133 S. Ct. at 2420. Here, the majority’s failure to make a meaningful
inquiry into the nature of “critical mass” constitutes precisely such deference.
      Certainly, as explained below, I agree that “critical mass” does not
require a precise numerical definition. See infra note 11. But, to meet its
narrow tailoring burden, the University must explain its goal to us in some
meaningful way. We cannot undertake a rigorous ends-to-means narrow
tailoring analysis when the University will not define the ends. We cannot tell
whether the admissions program closely “fits” the University’s goal when it
fails to objectively articulate its goal. Nor can we determine whether
considering race is necessary for the University to achieve “critical mass,” or

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whether there are effective race-neutral alternatives, when it has not described
what “critical mass” requires. 9
        At best, the University’s attempted articulations of “critical mass”
before this court are subjective, circular, or tautological. See infra Part III.A.
The University explains only that its “concept of critical mass is defined by
reference to the educational benefits that diversity is designed to produce.”
And, in attempting to address when it is likely to achieve critical mass, the
University explains only that it will “cease its consideration of race when it
determines . . . that the educational benefits of diversity can be achieved at UT
through a race-neutral policy . . . .” These articulations are insufficient. Under
the rigors of strict scrutiny, the judiciary must “verify that it is necessary for a
university to use race to achieve the educational benefits of diversity.” Fisher,
133 S. Ct. at 2420 (internal quotations omitted). It is not possible to perform
this function when the University’s objective is unknown, unmeasurable, or
unclear.
       The exacting scrutiny required by the Supreme Court’s “broader equal
protection jurisprudence” is entirely absent from today’s opinion, which holds
that the University has proven narrow tailoring even though it has failed to
meaningfully articulate its diversity goals.


       9   There is some dispute about whether the University’s definition of “critical mass” is
even before us as part of our narrow tailoring analysis. The University claims that this issue
is outside the scope of the Supreme Court’s remand because it is relevant only to its
compelling interest in diversity. This contention misunderstands the way in which “critical
mass” matters to this case. Here, “critical mass” represents the goal the University purports
to seek. The University uses this term as a representation of its ends. Fisher clearly
establishes that reviewing courts must defer to the University’s decision to pursue such ends.
133 S. Ct. at 2419. But, it equally establishes that we cannot defer to the University’s claim
that “the means chosen . . . to attain diversity are narrowly tailored to that goal.” Id. at 2420.
To conduct our own independent assessment of narrow tailoring—the judicial role under
strict scrutiny—we must have a clear and definite understanding of the goal the University
actually seeks. Accordingly, we must question the University’s explanation of “critical mass”
to fulfill the task remanded to us by the Supreme Court.

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                                             A
       The University’s failure to define meaningfully its “critical mass”
objective is manifest in its various strict scrutiny arguments. The University
claims that its use of racial classifications is necessary and narrowly tailored
because (1) quantitative metrics reflect an inadequate minority presence; (2)
qualitative diversity is lacking; (3) certain selective colleges are insufficiently
diverse; (4) its periodic review demonstrates that its goals have not yet been
achieved; and (5) its use of racial classifications is almost identical to that
approved in Grutter. 10 Each of these arguments falls short—either overlooking
a more narrowly tailored alternative or eliding any articulation of how this
specific use of racial classification advances the University’s objective.
                                             1
       First, while not defining its “critical mass” goal with reference to specific
quantitative objectives, the University claims that quantitative metrics are
relevant in measuring its progress. The University “based its critical mass
determination on several data points, including hard data on minority
admissions, enrollment, and racial isolation” and found that its use of racial
classifications “does increase minority enrollment.” 11 Accepting that such
metrics bear some relevance to the University’s progress, this is insufficient to
satisfy strict scrutiny. The University does not explain how admitting a very


       10 On remand, the University does not specifically delineate these arguments as such.
Rather, it submits that these various considerations are sufficient to establish narrow
tailoring. In any event, whether taken together or evaluated individually, none of these
arguments establishes that the University’s use of racial classifications in its admissions
decisions is narrowly tailored.

       11 I agree with the majority’s rejection of Fisher’s arguments that the University had
achieved “critical mass” in 2004, and that “critical mass” can be defined with reference to
numbers alone. Fisher effectively asks us to ratify racial quotas, which we cannot, and will
not, do. See Bakke, 438 U.S. at 317–18 (disapproving quota systems and approving the use of
race or ethnic background as a “plus” factor).

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small number of minority applicants under the race-conscious admissions plan
is necessary to advancing its diversity goal.
       It is undeniable that the University admits only a small number of
minority students under race-conscious holistic review. See Fisher, 631 F.3d at
262–63 (Garza, J., specially concurring). In 2008, the sole year at issue in this
case, less than 20% of the class was evaluated under the race-conscious holistic
review process. Even if we assume that all minority students who were
admitted and enrolled in that year through the race-conscious holistic review
process gained admission because of their race, this number is strikingly
small—only 216 African-American and Hispanic students in an entering class
of 6,322. 12 The University fails to explain how this small group contributes to
its “critical mass” objective. “Racial classifications are simply too pernicious to
permit any but the most exact connection between justification and [racial]
classification.” Adarand, 515 U.S. at 236 (emphasis added). But here, the
University has not established a clear and definite connection between its
chosen means and its desired ends of “critical mass.”
       To be clear, I agree that a race-conscious admissions plan need not have
a “dramatic or lopsided impact” on minority enrollment numbers to survive
strict scrutiny, as the University reads Fisher’s arguments to suggest. But
neither can the University prove the necessity of its racial classification
without meaningfully explaining how a small, marginal increase in minority
admissions is necessary to achieving its diversity goals. Thus, neither the small


       12  Notwithstanding the University’s contention that 2008 witnessed an
“unprecedented surge” in Top Ten Percent Law admissions, this is the only relevant year for
purposes of our narrow tailoring analysis. Moreover, I continue to find the majority’s use of
data for both enrolled and admitted students to be misguided and potentially confusing. See
ante, at 35–37. In my view, the proper metric is enrolled students because we are assessing
whether the University’s means are narrowly tailored to its goal of attaining “the educational
benefits of diversity” on campus. See Fisher, 631 F.3d at 260 n.18 (Garza, J., specially
concurring).

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(and decreasing) percentage of minority holistic-review admittees, nor
minorities’ “under-representation” in holistic review admissions relative to
whites, taken alone, demonstrates narrow tailoring. See ante, at 17–18 &
Appendix 1 (explaining that white students comprise a larger percentage of
holistic review admittees than of the incoming class as a whole). 13
      Under the Equal Protection Clause, diversity cannot be assessed by
strictly quantitative metrics, and, to the extent that numbers could be relevant
in assessing “critical mass,” the University leaves this relevance entirely
unexplained.
                                            2
      The University advances a second understanding of “critical mass,”
which I will refer to as “qualitative.” Under this theory, the University says its
goal is not boosting minority enrollment numbers alone, but rather promoting
the quality of minority enrollment—in short, diversity within diversity. The
University submits that its race-conscious holistic review allows it to select for
“other types of diversity” beyond race alone, and to identify the most “talented,
academically promising, and well-rounded” minority students. According to
the University, these are crucial “change agents” who debunk stereotypes but
who may fall outside the top 10% of their high school classes.
      As a preliminary matter, these stated ends are too imprecise to permit
the requisite strict scrutiny analysis. The University has not provided any
concrete targets for admitting more minority students possessing these unique
qualitative-diversity characteristics—that is, the “other types of diversity”
beyond race alone. At what point would this qualitative diversity target be




      13For example, for the incoming class that enrolled in 2008, white students comprised
65% of all students admitted through holistic review, but only 52% of the entire incoming
class.
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achieved? Because its ends are unknown to us, the University cannot meet its
strict scrutiny burden.
       But, even accepting the University’s broad and generic qualitative
diversity ends, we cannot conclude that the race-conscious policy is
constitutionally “necessary.” The University has not shown that qualitative
diversity is absent among the minority students admitted under the race-
neutral Top Ten Percent Law, Tex. Educ. Code Ann. § 51.803 (West 2009). That
is, the University does not evaluate the diversity present in this group before
deploying racial classifications to fill the remaining seats. The University does
not assess whether Top Ten Percent Law admittees exhibit sufficient diversity
within diversity, whether the requisite “change agents” are among them, and
whether these admittees are able, collectively or individually, to combat
pernicious stereotypes. There is no such evaluation despite the fact that Top
Ten Percent Law admittees also submit applications with essays, and are even
assigned PAI scores for purposes of admission to individual schools. 14
Evaluating the composition of these admittees—80% of the class in 2008—
before deploying racial classifications in the holistic admissions program might
well reveal that racial classifications are not necessary to achieve the
University’s qualitative diversity goals. See Fisher, 133 S. Ct. at 2420; see also
Parents Involved, 551 U.S. at 790 (explaining that racial classifications must
be a “last resort to achieve a compelling interest” in order to survive strict
scrutiny) (Kennedy, J., concurring).
       In effect, the University asks this Court to assume that minorities
admitted under the Top Ten Percent Law do not demonstrate “diversity within


       14 Dr. Kedra Ishop, Associate Director of Admissions, explained that all applicant files
are assigned an AI and PAI, and that the AI and PAI of a Top Ten Percent Law applicant can
still determine the program to which she is admitted, if her class rank is not high enough for
automatic admission to a competitive first-choice program such as the School of Business.

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diversity”—that they are somehow more homogenous, less dynamic, and more
undesirably stereotypical than those admitted under holistic review. Thus, the
University claims, absent its race-conscious holistic admissions program, it
would lose the minority students necessary to achieving a qualitative critical
mass. But it offers no evidence in the record to prove this, and we must
therefore refuse to make this assumption.
       Regrettably, the majority firmly adopts this assumption—that minority
students from majority-minority Texas high schools are inherently limited in
their ability to contribute to the University’s vision of a diverse student body. 15
The majority reasons that race-conscious holistic review is a “necessary
complement,” ante, at 30, to the Top Ten Percent Law, which, on its own, would
admit insufficient “students of unique talents and backgrounds who can enrich
the diversity of the student body in distinct ways,” id., at 29. The majority’s
discussion of numerous “resegregated” Texas school districts is premised on
the dangerous assumption that students from those districts (at least those in
the top ten percent of each class) do not possess the qualities necessary for the
University of Texas to establish a meaningful campus diversity. See id., at 24–
26. In this, it has embraced the very ill that the Equal Protection Clause seeks
to banish. See Croson, 488 U.S. at 505 (“[R]acial characteristics so seldom
provide a relevant basis for disparate treatment.”); Fullilove, 448 U.S. at 523
(“[A]ny official action that treats a person differently on account of his race or
ethnic origin is inherently suspect.”) (Stewart, J., dissenting); Cayetano, 528


       15 See ante, at 26 (discussing the “outcome gaps” of “segregated urban schools”); id. at
26 (classifying schools according to their racial and ethnic compositions). Additionally, the
majority’s sua sponte survey of Texas school districts’ data on racial composition, test scores,
and educational outcomes, id. at 26–28, ventures far beyond the summary judgment record.
Under strict scrutiny, the government bears the burden of establishing compliance with the
Constitution. See Johnson, 543 U.S. at 505. More specifically, the Supreme Court’s opinion
has mandated that we decide whether “this record . . . is sufficient” to demonstrate narrow
tailoring. Fisher, 133 S. Ct. at 2421 (emphasis added).

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U.S. at 517 (“Distinctions between citizens solely because of their ancestry are
by their very nature odious to a free people . . . .”).
       Moreover, the only fact from which the majority draws this alarming
conclusion is the mere reality that these districts serve majority-minority
communities. Ante, at 24–25 (“The de facto segregation of schools in Texas
enables the Top Ten Percent Law to increase minorities in the mix, while
ignoring contributions to diversity beyond race.”). 16                   By accepting the
University’s standing presumption that minority students admitted under the
Top Ten Percent Law do not possess the characteristics necessary to achieve a
campus environment defined by “qualitative diversity,” the majority engages
in the very stereotyping that the Equal Protection Clause abhors. 17
       The record does not indicate that the University evaluates students
admitted under the Top Ten Percent Law, checking for indicia of qualitative
diversity—diversity within diversity—before determining that race should be
considered in the holistic review process to fill the remaining seats in the class.
If the Top Ten Percent Law admittees were a sufficiently qualitatively diverse
population, which they may well be so far as I can tell, then using race in
holistic review to promote further diversity might not be necessary for the
University to achieve its goal, and an up-front assessment of these admittees,



       16 The majority’s reductionist assumption about the experiences of minority students
admitted under the Top Ten Percent Law is startling: “The top 29 graduates from Jack Yates
High School in Houston live in the same predominately African-American neighborhood of
that city’s Third Ward, and thus likely experienced a similar cultural environment.” Ante, at
24 n.98.

       17 This stereotyping is not limited to minority students admitted under the Top Ten
Percent Law. The majority further assumes that minority students admitted under holistic
review, based on their “experience of being a minority in a majority-white . . . school,” likely
“demonstra[te] qualities of leadership and sense of self.” Ante, at 29. These conclusions are
nonetheless stereotypes disallowed by the Fourteenth Amendment. And in any event, this
record, by which we are bound, does not indicate that any minority students admitted under
holistic review come from majority-white schools. See supra note 15.
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before turning to race, could be a more narrowly-tailored option. And, in any
event, the University offers no method for this court to determine when, if ever,
its goal (which remains undefined) for qualitative diversity will be reached.
Accordingly, the University has failed to carry its strict scrutiny burden of
proving that its race-conscious admissions policy is necessary to achieving its
diversity objective of a “qualitative” critical mass.
                                               3
      In earlier stages of this case, the University framed its diversity goal as
achieving “classroom diversity.” The University suggested that classroom
diversity and the distribution of minority students among colleges and majors
were meaningful metrics in determining whether “critical mass” had been
attained. And, indeed, the Supreme Court has recognized that increased
diversity of perspectives in the classroom provides for a “livelier, more spirited,
and simply more enlightening and interesting” experience. Grutter, 539 U.S.
at 330 (quoting Bakke, 438, U.S. at 307). However, the University has
distanced itself from this previously asserted goal, now claiming it “has never
pursued classroom diversity as a discrete interest or endpoint,” but merely as
“one of many factors” to be considered in evaluating diversity. Given the
University’s failure to press the classroom diversity argument in its briefing
on remand, the issue is almost certainly waived. See United States v. Griffith,
522 F.3d 607, 610 (5th Cir. 2008) (“It is a well-worn principle that the failure
to raise an issue on appeal constitutes waiver of that argument.”).
      Notwithstanding this waiver, the majority addresses the issue of
classroom     diversity,    contending        that      the   University’s   race-conscious
admissions policy is necessary to give “high-scoring minority students a better
chance   of   gaining      admission     to    UT       Austin’s     competitive   academic
departments.” Ante, at 37. Perhaps, based on the structure of the University’s
admissions process, it is possible that the use of race as a factor in calculating

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an applicant’s PAI score incrementally increases the odds that a minority
applicant will be admitted to a competitive college within the University. 18 But
hypothetical considerations are not enough to meet a state actor’s burden
under strict scrutiny. See United States v. Virginia, 518 U.S. 515, 533 (1996)
(“The justification must be genuine, not hypothesized or invented post hoc in
response to litigation.”). Rather, assuming that the University’s diversity goal
is establishing classroom diversity, it is the University that bears the burden
of proving that the use of race in calculating the PAI scores is necessary to
furthering this goal. But instead of explaining how race enhances minority
students’ prospects of admission to a competitive college or major, the
University admissions officers’ deposition testimony specifically indicates that
race could not be a decisive factor in any applicant’s admission, 19 and that it is
impossible to determine whether race was in fact decisive for any particular


       18  The record describes the admissions process as follows: First, the admissions staff
read all applicants’ files, including those of Top Ten Percent Law applicants, and assign each
an AI and PAI score. Applicants with exceptionally high class rank or AI scores are
automatically admitted to certain first-choice schools or majors and, thus, also to the
University. Next, for applicants not automatically admitted to their first choice, the staff
generate a matrix for each school with each cell on the matrix representing an intersection
of AI and PAI scores. Working with liaisons from each school, the staff plot the remaining
applicants’ scores on matrices according to the applicants’ first-choice majors. Based on the
number of applicants in each matrix cell and the available seats in the class for each school,
the admissions staff and liaisons draw “cut-off lines” across the matrices. Applicants not
selected for admission to their first-choice school “cascade” onto the matrix for their second-
choice school, where they are added to the cells along with applicants who were above the
cut-off line during the previous review round. The cut-off lines are readjusted to accommodate
the additional students, and those remaining above the adjusted cut-off lines are accepted to
that school. Applicants not admitted to either their first- or second-choice school then
“cascade” into the Liberal Arts Undecided matrix, which serves as the default third-choice
major. Again, the admissions staff perform the line-drawing exercise (cognizant that
remaining Top Ten Percent Law applicants must be admitted as Liberal Arts majors, thus
reducing the number of available spaces), and a final determination is made for all
applicants.

       19 When asked whether any one factor in the PAI calculation could be determinative
for an applicant’s admission, Dr. Bruce Walker, Vice Provost and Director of Admissions,
stated “no.”

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applicant’s admission decision. 20 Absent any record evidence of the potential
for race to be a decisive factor, the University cannot establish, as the majority
claims, that its racial classifications could actually give any minority applicant
“a better chance” of admission to a competitive college. Ante, at 37.
        In short, the University has obscured its use of race to the point that
even its own officers cannot explain the impact of race on admission to
competitive colleges. 21 If race is indeed without a discernable impact, the
University cannot carry its burden of proving that race-conscious holistic
review is necessary to achieving classroom diversity (or, for that matter, any
kind of diversity). Because the role played by race in the admissions decision
is essentially unknowable, I cannot find that these racial classifications are
necessary or narrowly tailored to achieving the University’s interest in
diversity.
                                              4
       The University further claims that its race-conscious admissions
program is narrowly tailored because, with the help of a rigorous periodic
review system, it will “cease its consideration of race when it determines . . .
that the educational benefits of diversity can be achieved at [the University]



       20Dr. Kedra Ishop was asked whether she could give an “example where race would
have some impact on an applicant’s personal achievement score?” Her answer: “In order to–
it’s impossible to say–to give you an example of a particular student because it’s all
contextual.”

       21 And race is entirely invisible at the moment of drawing the final admission cut-off
lines, for students not automatically admitted to their first-choice program by virtue of an
exceptionally high class rank or AI score. The University’s admissions staff and liaisons from
each school admit students to the various schools and majors based solely on the combination
of applicants’ AI and PAI scores. While race is considered in determining PAI scores, once
the scores are assigned and applicants are plotted on the matrices for the various schools,
admissions officers treat applicants as points on a grid. In other words, the University
officials have no way of knowing whether they are selecting applicants whose race
incrementally boosted their PAI score, much less whether any particular applicant will help
the University improve classroom diversity.
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through a race-neutral policy ‘at reasonable cost’ to its other educational
objectives.” The University seeks to assure us that periodic review of its
admissions policy considers enrollment data, “evidence of racial isolation and
the racial climate on campus,” and “other data including the educational
benefits of diversity experienced in the classroom.” In simple language, the
University asserts that it knows critical mass when it sees it.
      On one level, the University’s review process captures the essence of the
holistic diversity interest established in Bakke, validated in Grutter, and left
intact by Fisher. See Ante at 12 (“Diversity is a composite of the backgrounds,
experiences, achievements, and hardships of students to which race only
contributes.”). In fact, the Grutter Court discussed the important role that such
reviews can play in determining whether racial classifications have continuing
necessity under strict scrutiny. Grutter, 539 U.S. at 342.
      Nonetheless, there are two distinct flaws with the University’s
assurances that its own, internal, periodic review is sufficient to safeguard
against any unconstitutional use of race. First, strict scrutiny does not allow
the judiciary to delegate wholesale to state actors the task of determining
whether a race-conscious admissions policy continues to be necessary. This is
the very point made by the Fisher Court, in vacating our previous opinion for
deferring to the University’s narrow-tailoring claims. Fisher, 133 S. Ct. at
2420–21.
      Second, while the University correctly considers a range of factors in its
assessment of the necessity of its use of race, see Bakke, 438 U.S. at 315
(describing diversity as a “broader array of qualifications and characteristics”
of which race is only one), it has still not explained to us how this consideration
takes place. In describing its periodic review process, the University never
explains how the various factors are measured, the weight afforded to each,


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and what combination thereof would yield a “critical mass” of diversity
sufficient to cease use of racial classifications.
        In light of this, I cannot determine that the race-conscious admissions
program is narrowly tailored to the University’s goal. The University, in effect,
defines critical mass as a nebulous amalgam of factors—enrollment data,
racial isolation, racial climate, and “the educational benefits of diversity”—that
its internal periodic review is calibrated to detect. But, without more, the
University fails to prove narrow tailoring with clarity. Fisher, 133 S. Ct. at
2418.        Such a bare submission, in essence, begs for the deference that is
irreconcilable with “meaningful” judicial review. Id. at 2421.
                                              5
        Lastly, the University submits that its race-conscious admissions policy
necessarily satisfies narrow tailoring because it is closely modeled on the
admissions program upheld by the Supreme Court in Grutter. Similarly, the
majority implies that the race-conscious admissions policy’s similarity to
Grutter is, itself, a meaningful factor in our strict scrutiny analysis. 22 This
claim is unpersuasive.
        Fisher confirms that we are obligated to consider the particular
challenged race-conscious program on its own terms and ask whether the
University        “could   achieve   sufficient    diversity     without     using     racial
classifications.” 133 S. Ct. at 2420. Strict scrutiny is not a hypothetical
undertaking, but rather “imposes on the university the ultimate burden of
demonstrating, before turning to racial classifications, that available,
workable race-neutral alternatives do not suffice.” Id.




         See ante, at 16 (describing the University’s use of race with direct reference to the
        22

program approved in Grutter); id. at 29 (“UT Austin’s holistic review program—a program
nearly indistinguishable from the University of Michigan Law School’s program in Grutter .
. . .”).
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       Certain aspects of the University’s admissions policy do parallel the
features of the plan upheld in Grutter—race is only a sub-factor within a
holistic, individualized review process, and the University’s goal is framed in
terms of “critical mass.” But the University, under mandate by the Texas
Legislature’s Top Ten Percent Law, admits the majority of its entering class
through a separate, race-neutral scheme. 23 This inevitably impacts the narrow
tailoring calculus presently under consideration. That is, while the
University’s race-conscious admissions policy is conceptually derived from the
University of Michigan Law School’s approach, the two are quite distinct in
practice: The University’s holistic review coexists with a separate process that
admits a large population of students, a circumstance not contemplated in
Grutter. 24
       Similarity to Grutter is not a narrow-tailoring talisman that insulates
the University’s policy from strict scrutiny. The University’s burden is to prove
that its own use of racial classifications is necessary and narrowly tailored for
achieving its own diversity objectives.




       23    The majority implies that the University’s implementation of the Top Ten Percent
Law was discretionary. See ante, at 15 (“UT Austin turned to the Top Ten Percent Plan
 . . . .” (emphasis added)); id. at 16 (“We are offered no coherent response to the validity of a
potentially different election by UT Austin: to invert the process and use Grutter’s holistic
review to select 80% or all of its students.” (emphasis added)). There was no such choice; the
University was mandated by the law to admit any graduate in the top ten percent of his or
her high school class. And, as explained below, the Top Ten Percent Law is not challenged in
this appeal.

        24 Additionally, I observe that the admissions program here and that in Grutter do not

seem to use race in the same way. Even accepting that the University uses race as a “factor
of a factor of a factor,” here, the University incorporates race into the PAI before individual
admissions decisions are made on the matrices, at which point race is invisible. See supra
note 21. By contrast, in Grutter, each law school applicant’s file, including his or her racial
classification, was considered during a holistic, full-file review. See 539 U.S. at 334–36.

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                                          B
      Ultimately, the record is devoid of any specifically articulated connection
between the University’s diversity goal of “critical mass” and its race-conscious
admissions process. The University has not shown how it determines the
existence, or lack, of a “critical mass” of diversity in its student population.
Rather, the University only frames its goal as “obtaining the educational
benefits of diversity.” This is entirely circular reasoning that cannot satisfy
the rigorous means-to-ends analysis required under strict scrutiny. Fisher, 133
S. Ct. at 2421.
      To be clear, my concern is not with the University’s use of the term
“critical mass” itself. Even if the University were to adopt another rhetorical
construct to explain its diversity objectives, it faces the same underlying
problem—it does not offer a clear and definite articulation of its goal sufficient
for a reviewing court to verify narrow tailoring. The University’s failure to
meet its strict scrutiny burden is a function of its undefined ends, not its choice
to label those ends as “critical mass.”
                                          IV
      The majority concludes that the University’s race-conscious admissions
program is narrowly tailored because the University has exhausted all
workable alternatives. Ante, at 41.       Much of today’s opinion explores the
historical “narrative” of the University’s admissions process, including many
race-neutral recruitment programs intended to bolster minority enrollment.
Id. at 15. And, indeed, the University’s many efforts to achieve a diverse
campus learning environment without resorting to racial classifications are
commendable. But, framing this history as something akin to a process of
elimination, the majority finds that the University’s race-conscious admissions
program must be necessary and narrowly tailored to the University’s diversity
objectives. This is insufficient to satisfy strict scrutiny.

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      Certainly, the University’s past experiences with race-neutral initiatives
are relevant to the inquiry because the University must establish that “no
workable race-neutral alternatives would produce the educational benefits of
diversity,” and because the University’s “experience and expertise” provide
some context to inform judicial review. Fisher, 133 S. Ct. at 2420. However,
we cannot conclude that the University’s current race-conscious admissions
program—the only matter before this court—is narrowly tailored to achieve
the educational benefits of diversity because the University has failed to define
what it means by “critical mass.” In other words, the University’s long history
of purportedly unsuccessful alternatives is meaningless if we cannot discern
the contours of the success it now seeks.
      Additionally, the majority’s sustained focus on the Top Ten Percent Law
is misplaced. While the Law is indeed central to this case, here, as in our
previous consideration of this appeal, “[n]o party challenged, in the district
court or in this court, the validity or the wisdom of the Top Ten Percent Law.”
Fisher, 631 F.3d at 247 (King, J., specially concurring). Nevertheless, the
majority forcefully indicts the Law for frustrating the University’s efforts to
achieve well-rounded diversity. In the majority’s view, the Law’s shortcomings
make a holistic review program more necessary.              Ante, at 30 (“We are
persuaded that holistic review is a necessary complement to the Top Ten
Percent Plan, enabling it to operate without reducing itself to a cover for a
quota system . . . .”). At most, the Law’s mechanical operation—admitting
students based on the sole metric of high school class rank—might suggest that
some form of holistic review is advisable to supplement the admissions process.
But this issue is not before us at all. Our task is to determine whether the
University’s injection of race into its admissions process survives strict
scrutiny.


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       The Top Ten Percent Law matters only insofar as it causes the
University to admit a large number of minority students separate and apart
from the holistic review process. That is, the Law creates a separate
admissions channel for many minority students, which then calls into question
the necessity of using race as a factor in the holistic review process for filling
the remaining seats. Whether, in light of the Top Ten Percent Law, race-
conscious holistic review is more or less necessary is an open question, and it
is the University that bears the burden of explaining how the Law impacts its
achievement of its diversity goal. Here, it has failed to do so, under any theory
of “critical mass” it has proffered. 25
                                       *       *        *
       The material facts of this case have remained unchanged since the
district court’s grant of summary judgment, but the governing law has changed
markedly. Fisher established that strict scrutiny in the higher education
affirmative action setting is no different than strict scrutiny in other equal
protection contexts—the state actor receives no deference in proving that its
chosen race-conscious means are narrowly tailored to its ends. The majority
fails to give Fisher its proper weight. Today’s opinion sidesteps the new strict
scrutiny standard and continues to defer to the University’s claims that its use
of racial classifications is narrowly tailored to its diversity goal. Because the


       25 There are additional elements of the majority’s discussion of the Top Ten Percent
Law that I cannot join. First, to bolster the “necessity” of race-conscious holistic review, the
majority explains that holistic-review admittees have higher standardized test scores. Ante,
at 24 & nn. 96–97. However, no testimony or record evidence establishes whether the gap in
SAT scores between Top Ten Percent and Non-Top Ten Percent admittees is statistically
significant. And as the University’s president explained in 2000, “top 10 percent high school
students make much higher grades in college than non-top 10 percent students,” and
“[s]trong academic performance in high school is an even better predictor of success in college
than standardized test scores.” At best, the academic superiority of holistic review admittees
as a group is highly contested. Second, legislative changes to the Top Ten Percent Law after
2008, the relevant year for our purposes, are not germane to our analysis. See ante, at 32
(discussing S.B. 175).
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University has not defined its diversity goal in any meaningful way—instead,
reflexively reciting the term “critical mass”—it is altogether impossible to
determine whether its use of racial classifications is narrowly tailored.
      This is not to say, however, that it is impossible for a public university
to define its diversity ends adequately for a court to verify narrow tailoring
with the requisite exacting scrutiny. After all, “[s]trict scrutiny must not be
strict in theory but fatal in fact.” Fisher, 133 S. Ct. at 2421 (internal quotations
omitted). It may even be possible for a university to do so while seeking a
“critical mass.” What matters now, after Fisher, is that a state actor’s diversity
goals must be sufficiently clear and definite such that a reviewing court can
assess, without deference, whether its particular use of racial classifications is
necessary and narrowly tailored to those goals. On this record, the University
has not “offered sufficient evidence that would prove that its admissions
program is narrowly tailored to obtain the educational benefits of diversity.”
Fisher, 133 S. Ct. at 2421. Accordingly, I would reverse and render judgment
for Fisher.
      I respectfully dissent.




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