FISHER v. UNIVERSITY OF TEXAS
Click here to watch video explanations, read documents, and listen to the lower court arguments for this case.
In 1997, the Texas legislature enacted a law requiring the University of Texas to admit all high school seniors who ranked in the top ten percent of their high school classes. After finding differences between the racial and ethnic makeup of the university's undergraduate population and the state's population, the University of Texas decided to modify its race-neutral admissions policy. The new policy continued to admit all in-state students who graduated in the top ten percent of their high school classes. For the remainder of the in-state freshman class the university would consider race as a factor in admission.
Abigail N. Fisher, a Caucasian female, applied for undergraduate admission to the University of Texas in 2008. Fisher was not in the top ten percent of her class, so she competed for admission with other non-top ten percent in-state applicants. The University of Texas denied Fisher's application.
Fisher filed suit against the university and other related defendants, claiming that the University of Texas' use of race as a consideration in admission decisions was in violation of the equal protection cause of the Fourteenth Amendment and a violation of42 U.S.C. Section 1983. The university argued that its use of race was a narrowly tailored means of pursuing greater diversity. The district court decided in favor of the University of Texas, and the United States Court of Appeals for the Fifth Circuit affirmed the district court's decision. Fisher appealed the appellate court's decision.
Does the Equal Protection Clause of the Fourteenth Amendment permit the consideration of race in undergraduate admissions decisions?
Legal provision: Fourteenth Amendment
Yes, but only under a standard of strict judicial scrutiny. Justice Anthony M. Kennedy delivered the opinion for the 7-1 majority. The Supreme Court held that, in affirming the lower court’s decision, the Court of Appeals did not hold the University’s admission policies to a standard of strict scrutiny, so the judgment was incorrect. Based on previous judicial precedent in cases dealing with minority admissions, the Court has held that such cases are reviewable under the Fourteenth Amendment and that they must be reviewed under a standard of strict scrutiny to determine whether the policies are “precisely tailored to serve a compelling governmental interest.” If the policy does not meet this standard, race may not be considered in the admissions process. The Court held that it was the duty of the reviewing court to “verify” that the University policy in question was necessary to achieve the benefits of diversity and that no race-neutral alternative would provide the same benefits. The Supreme Court held that the lower courts did not conduct a sufficient strict scrutiny examination in this case.
Justice Antonin Scalia wrote a concurring opinion in which he argued that the Constitution prohibits governmental discrimination on the basis of race. However, because this case did not ask the Court to overrule precedent that allowed universities to consider diversity a compelling interest that justified race-based admission policies, he joined the majority’s opinion in full. In his separate concurrence, Justice Clarence Thomas wrote that he joined the majority’s opinion that the lower courts did not sufficiently apply strict scrutiny, but he also argued that the Equal Protection Clause of the Fourteenth Amendment prohibits a state’s use of race as a factor in higher education admissions. He further argued that there is nothing “necessary” about the benefits that flow from racial diversity in higher education, so there in no compelling state interest to promote it.
Justice Ruth Bader Ginsburg wrote a dissenting opinion in which she argued that the University’s admission policy treats race as merely one factor in the overall decision to admit a student, which is permissible under previous judicial precedent. She also argued that the Equal Protection Clause does not require that state universities be blind to the history of overt discrimination and that it is preferable that they explicitly include race as a factor in admission decisions rather than attempt to obfuscate its role.
Justice Elena Kagan did not participate in the discussion or decision of the case.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al.
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 24, 2013]
Justice Kennedy delivered the opinion of the Court.
The University of Texas at Austin considers race as one of various factors in its undergraduate admissions process. Race is not itself assigned a numerical value for each ap-plicant, but the University has committed itself to increasing racial minority enrollment on campus. It refers to this goal as a “critical mass.” Petitioner, who is Caucasian, sued the University after her application was re-jected. She contends that the University’s use of race in the admissions process violated the Equal Protection Clause of the Fourteenth Amendment.
The parties asked the Court to review whether the judgment below was consistent with “this Court’s deci-sions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U. S. 306 (2003) .” Pet. for Cert. i. The Court concludes that the Court of Appeals did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. That decision is vacated, and the case is remanded for further proceedings.I A
Located in Austin, Texas, on the most renowned campus of the Texas state university system, the University is one of the leading institutions of higher education in the Nation. Admission is prized and competitive. In 2008, when petitioner sought admission to the University’s entering class, she was 1 of 29,501 applicants. From this group 12,843 were admitted, and 6,715 accepted and enrolled. Petitioner was denied admission.
In recent years the University has used three different programs to evaluate candidates for admission. The first is the program it used for some years before 1997, when the University considered two factors: a numerical score reflecting an applicant’s test scores and academic perform-ance in high school (Academic Index or AI), and the applicant’s race. In 1996, this system was held unconstitutional by the United States Court of Appeals for the Fifth Circuit. It ruled the University’s consideration of race violated the Equal Protection Clause because it did not further any compelling government interest. Hopwood v. Texas, 78 F. 3d 932, 955 (1996).
The second program was adopted to comply with the Hopwood decision. The University stopped considering race in admissions and substituted instead a new holistic metric of a candidate’s potential contribution to the University, to be used in conjunction with the Academic Index. This “Personal Achievement Index” (PAI) measures a student’s leadership and work experience, awards, extracurricular activities, community service, and other special circumstances that give insight into a student’s background. These included growing up in a single-parent home, speaking a language other than English at home, significant family responsibilities assumed by the applicant, and the general socioeconomic condition of the student’s family. Seeking to address the decline in minority enrollment after Hopwood, the University also expanded its outreach programs.
The Texas State Legislature also responded to the Hop-wood decision. It enacted a measure known as the Top Ten Percent Law, codified at Tex. Educ. Code Ann. §51.803 (West 2009). Also referred to as H. B. 588, the Top Ten Percent Law grants automatic admission to any public state college, including the University, to all students in the top 10% of their class at high schools in Texas that comply with certain standards.
The University’s revised admissions process, coupled with the operation of the Top Ten Percent Law, resulted in a more racially diverse environment at the University. Before the admissions program at issue in this case, in the last year under the post-Hopwood AI/PAI system that did not consider race, the entering class was 4.5% African-American and 16.9% Hispanic. This is in contrast with the 1996 pre-Hopwood and Top Ten Percent regime, when race was explicitly considered, and the University’s entering freshman class was 4.1% African-American and 14.5% Hispanic.
Following this Court’s decisions in Grutter v. Bollinger, supra, and Gratz v. Bollinger, 539 U. S. 244 (2003) , the University adopted a third admissions program, the 2004 program in which the University reverted to explicit consideration of race. This is the program here at issue. In Grutter, the Court upheld the use of race as one of many “plus factors” in an admissions program that considered the overall individual contribution of each candidate. In Gratz, by contrast, the Court held unconstitutional Michigan’s undergraduate admissions program, which automatically awarded points to applicants from certain racial minorities.
The University’s plan to resume race-conscious admissions was given formal expression in June 2004 in an in-ternal document entitled Proposal to Consider Race and Ethnicity in Admissions (Proposal). Supp. App. 1a. The Proposal relied in substantial part on a study of a subset of undergraduate classes containing between 5 and 24 students. It showed that few of these classes had significant enrollment by members of racial minorities. In addition the Proposal relied on what it called “anecdotal” reports from students regarding their “interaction in the classroom.” The Proposal concluded that the University lacked a “critical mass” of minority students and that to remedy the deficiency it was necessary to give explicit consideration to race in the undergraduate admissions program.
To implement the Proposal the University included a student’s race as a component of the PAI score, beginning with applicants in the fall of 2004. The University asks students to classify themselves from among five predefined racial categories on the application. Race is not assigned an explicit numerical value, but it is undisputed that race is a meaningful factor.
Once applications have been scored, they are plotted on a grid with the Academic Index on the x-axis and the Personal Achievement Index on the y-axis. On that grid students are assigned to so-called cells based on their individual scores. All students in the cells falling above a certain line are admitted. All students below the line are not. Each college—such as Liberal Arts or Engineering—admits students separately. So a student is considered initially for her first-choice college, then for her second choice, and finally for general admission as an undeclared major.
Petitioner applied for admission to the University’s 2008 entering class and was rejected. She sued the University and various University officials in the United States District Court for the Western District of Texas. She alleged that the University’s consideration of race in admissions violated the Equal Protection Clause. The parties cross-moved for summary judgment. The District Court granted summary judgment to the University. The United States Court of Appeals for the Fifth Circuit affirmed. It held that Grutter required courts to give substantial deference to the University, both in the definition of the compelling interest in diversity’s benefits and in deciding whether its specific plan was narrowly tailored to achieve its stated goal. Applying that standard, the court upheld the University’s admissions plan. 631 F. 3d 213, 217–218 (2011).
Over the dissent of seven judges, the Court of Appeals denied petitioner’s request for rehearing en banc. See 644 F. 3d 301, 303 (CA5 2011) (per curiam). Petitioner sought a writ of certiorari. The writ was granted. 565 U. S. ___ (2012).B
Among the Court’s cases involving racial classifications in education, there are three decisions that directly address the question of considering racial minority status as a positive or favorable factor in a university’s admissions process, with the goal of achieving the educational benefits of a more diverse student body: Bakke, 438 U. S. 265 ; Gratz, supra; and Grutter, 539 U. S. 306 . We take those cases as given for purposes of deciding this case.
We begin with the principal opinion authored by Justice Powell in Bakke, supra. In Bakke, the Court considered a system used by the medical school of the University of California at Davis. From an entering class of 100 students the school had set aside 16 seats for minority applicants. In holding this program impermissible under the Equal Protection Clause Justice Powell’s opinion stated certain basic premises. First, “decisions based on race or ethnic origin by faculties and administrations of state universities are reviewable under the Fourteenth Amend-ment.” Id., at 287 (separate opinion). The principle of equal protection admits no “artificial line of a ‘twoclass theory’ ” that “permits the recognition of special wards entitled to a degree of protection greater than that accorded others.” Id., at 295. It is therefore irrelevant that a system of racial preferences in admissions may seem benign. Any racial classification must meet strict scrutiny, for when government decisions “touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” Id., at 299.
Next, Justice Powell identified one compelling interest that could justify the consideration of race: the interest in the educational benefits that flow from a diverse student body. Redressing past discrimination could not serve as a compelling interest, because a university’s “broad mission [of] education” is incompatible with making the “judicial, legislative, or administrative findings of constitutional or statutory violations” necessary to justify remedial racial classification. Id., at 307–309.
The attainment of a diverse student body, by contrast, serves values beyond race alone, including enhanced class-room dialogue and the lessening of racial isolation and stereotypes. The academic mission of a university is “a special concern of the First Amendment.” Id., at 312. 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.’ ” Sweezy v. New Hampshire, 354 U. S. 234, 263 (1957) (Frankfurter, J., concurring in judgment).
Justice Powell’s central point, however, was that this interest in securing diversity’s benefits, although a permissible objective, is complex. “It 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. The 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.” Bakke, 438 U. S., at 315 (separate opinion).
In Gratz, 539 U. S. 244 , and Grutter, supra, the Court endorsed the precepts stated by Justice Powell. In Grutter, the Court reaffirmed his conclusion that obtaining the educational benefits of “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Id., at 325.
As Gratz and Grutter observed, however, this follows only if a clear precondition is met: The particular admissions process used for this objective is subject to judicial review. Race may not be considered unless the admissions process can withstand strict scrutiny. “Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis.” Gratz, supra, at 275. “To be narrowly tailored, a race-conscious admissions program cannot use a quota system,” Grutter, 539 U. S., at 334, but instead must “remain flexible enough to 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,” id., at 337. Strict scru-tiny requires the university to demonstrate with clarity that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.” Bakke, 438 U. S., at 305 (opinion of Powell, J.) (internal quotation marks omitted).
While these are the cases that most specifically address the central issue in this case, additional guidance may be found in the Court’s broader equal protection jurisprudence which applies in this context. “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people,” Rice v. Cayetano, 528 U. S. 495, 517 (2000) (internal quotation marks omitted), and therefore “are contrary to our traditions and hence constitutionally suspect,” Bolling v. Sharpe, 347 U. S. 497, 499 (1954) . “ ‘[B]ecause racial characteristics so seldom provide a relevant basis for disparate treatment,’ ” Richmond v. J. A. Croson Co., 488 U. S. 469, 505 (1989) (quoting Fullilove v. Klutznick, 448 U. S. 448 –534 (1980) (Stevens, J., dissenting)), “the Equal Protection Clause demands that racial classifications . . . be subjected to the ‘most rigid scrutiny.’ ” Loving v. Virginia, 388 U. S. 1, 11 (1967) .
To implement these canons, judicial review must begin from the position that “any official action that treats a person differently on account of his race or ethnic origin is inherently suspect.” Fullilove, supra, at 523 (Stewart, J., dissenting); McLaughlin v. Florida, 379 U. S. 184, 192 (1964) . Strict scrutiny is a searching examination, and it is the government that bears the burden to prove “ ‘that the reasons for any [racial] classification [are] clearly iden-tified and unquestionably legitimate,’ ” Croson, supra, at 505 (quoting Fullilove, 448 supra, at 533–535 (Stevens, J., dissenting)).II
Grutter made clear that racial “classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” 539 U. S., at 326. And Grutter endorsed Justice Powell’s conclusion in Bakke that “the attainment of a diverse student body . . . is a consti-tutionally permissible goal for an institution of higher education.” 438 U. S., at 311–312 (separate opinion). Thus, under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications.
According to Grutter, a university’s “educational judgment that such diversity is essential to its educational mission is one to which we defer.” 539 U. S., at 328. Grutter concluded that the decision to pursue “the educational benefits that flow from student body diversity,” id., at 330, 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. A court, of course, should ensure that there is a reasoned, principled explanation for the academic decision. On this point, the District Court and Court of Appeals were correct in finding that Grutter calls for de-ference to the University’s conclusion, “ ‘based on its experience and expertise,’ ” 631 F. 3d, at 230 (quoting 645 F. Supp. 2d 587, 603 (WD Tex. 2009)), that a diverse student body would serve its educational goals. There is disagreement about whether Grutter was consistent with the principles of equal protection in approving this compelling interest in diversity. See post, at 1 (Scalia, J., concurring); post, at 4–5 (Thomas, J., concurring); post, at 1–2 (Ginsburg, J., dissenting). But the parties here do not ask the Court to revisit that aspect of Grutter’s holding.
A university is not permitted to define diversity as “some specified percentage of a particular group merely because of its race or ethnic origin.” Bakke, supra, at 307 (opinion of Powell, J.). “That would amount to outright racial balancing, which is patently unconstitutional.” Grutter, supra, at 330. “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’ ” Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 732 (2007) .
Once the University has established that its goal of di-versity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” 539 U. S., at 333 (internal quotation marks omitted). True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that 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.” Id., at 337.
Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. Bakke, supra, at 305. This involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications. Although “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” strict scrutiny does require a court to examine with care, and not defer to, a university’s “serious, good faith consideration of workable race-neutral alternatives.” See Grutter, 539 U. S., at 339–340 (emphasis added). Consideration by the university is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the edu-cational benefits of diversity. If “ ‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’ ” Wygant v. Jackson Bd. of Ed., 476 U. S. 267 , n. 6 (1986) (quoting Greenawalt, Judicial Scrutiny of “Benign” Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578–579 (1975)), then the university may not consider race. A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the univer-sity the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.
Rather than perform this searching examination, however, the Court of Appeals held petitioner could challenge only “whether [the University’s] decision to reintroduce race as a factor in admissions was made in good faith.” 631 F. 3d, at 236. And in considering such a challenge, the court would “presume the University acted in good faith” and place on petitioner the burden of rebutting that presumption. Id., at 231–232. The Court of Appeals held that to “second-guess the merits” of this aspect of the University’s decision was a task it was “ill-equipped to perform” and that it would attempt only to “ensure that [the University’s] decision to adopt a race-conscious admissions policy followed from [a process of] good faith consideration.” Id., at 231. The Court of Appeals thus concluded that “the narrow-tailoring inquiry—like the compelling-interest inquiry—is undertaken with a degree of deference to the Universit[y].” Id., at 232. Because “the efforts of the University have been studied, serious, and of high purpose,” the Court of Appeals held that the use of race in the admissions program fell within “a constitutionally protected zone of discretion.” Id., at 231.
These expressions of the controlling standard are at odds with Grutter’s command that “all racial classifications imposed by government ‘must be analyzed by a reviewing court under strict scrutiny.’ ” 539 U. S., at 326 (quoting Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995) ). In Grutter, the Court approved the plan at issue upon concluding that it was not a quota, was sufficiently flexible, was limited in time, and followed “serious, good faith consideration of workable race-neutral alternatives.” 539 U. S., at 339. As noted above, see supra, at 1, the parties do not challenge, and the Court therefore does not consider, the correctness of that determination.
Grutter did not hold that good faith would forgive an impermissible consideration of race. It must be remembered that “the mere recitation of a ‘benign’ or legitimate purpose for a racial classification is entitled to little or no weight.” Croson, 488 U. S., at 500. Strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without a court giving close analysis to the evidence of how the process works in practice.
The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts. “[T]he analysis and level of scrutiny applied to determine the validity of [a racial] classification do not vary simply because the objective appears acceptable . . . . While the validity and importance of the objective may affect the outcome of the analysis, the analysis itself does not change.” Mississippi Univ. for Women v. Hogan, 458 U. S. 718 , n. 9 (1982).
The District Court and Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the University’s good faith in its use of racial classifications and affirming the grant of summary judgment on that basis. The Court vacates that judgment, but 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. See Adarand, supra, at 237. Unlike Grutter, which was decided after trial, this case arises from cross-motions for summary judgment. In this case, as in similar cases, in determining whether summary judgment in favor of the University would be appropriate, the Court of Appeals must assess whether the University has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. Whether this record—and not “simple . . . assurances of good intention,” Croson, supra, at 500—is sufficient is a question for the Court of Appeals in the first instance.* * *
Strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’ ” Adarand, supra, at 237; see also Grutter, supra, at 326. But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Bakke, 438 U. S., at 315 (opinion of Powell, J.). The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Kagan took no part in the consideration or decision of this case.
SUPREME COURT OF THE UNITED STATES
ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al.
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 24, 2013]
Justice Ginsburg, dissenting.
The University of Texas at Austin (University) is candid about what it is endeavoring to do: It seeks to achieve student-body diversity through an admissions policy patterned after the Harvard plan referenced as exemplary in Justice Powell’s opinion in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 –317 (1978). The University has steered clear of a quota system like the one struck down in Bakke, which excluded all nonminority candidates from competition for a fixed number of seats. See id., at 272–275, 315, 319–320 (opinion of Powell, J.). See also Gratz v. Bollinger, 539 U. S. 244, 293 (2003) (Souter, J., dissenting) (“Justice Powell’s opinion in [Bakke] rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class.”). And, like so many educational institutions across the Nation, 1 the University has taken care to follow the model approved by the Court in Grutter v. Bollinger, 539 U. S. 306 (2003) . See 645 F. Supp. 2d 587, 609 (WD Tex. 2009) (“[T]he parties agree [that the University’s] policy was based on the [admissions] policy [upheld in Grutter].”).
Petitioner urges that Texas’ Top Ten Percent Law and race-blind holistic review of each application achieve significant diversity, so the University must be content with those alternatives. I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious. See Gratz, 539 U. S., at 303–304, n. 10 (dissenting opinion). As Justice Souter observed, the vaunted alternatives suffer from “the disadvantage of deliberate obfuscation.” Id., at 297–298 (dissenting opinion).
Texas’ percentage plan was adopted with racially segregated neighborhoods and schools front and center stage. See House Research Organization, Bill Analysis, HB 588, pp. 4–5 (Apr. 15, 1997) (“Many regions of the state, school districts, and high schools in Texas are still predominantly composed of people from a single racial or ethnic group. Because of the persistence of this segregation, admitting the top 10 percent of all high schools would provide a diverse population and ensure that a large, well qualified pool of minority students was admitted to Texas universities.”). It is race consciousness, not blindness to race, that drives such plans. 2 As for holistic review, if universities cannot explicitly include race as a factor, many may “resort to camouflage” to “maintain their minority enrollment.” Gratz, 539 U. S., at 304 (Ginsburg, J., dissenting).
I have several times explained why government actors, including state universities, need not be blind to the lingering effects of “an overtly discriminatory past,” the legacy of “centuries of law-sanctioned inequality.” Id., at 298 (dissenting opinion). See also Adarand Constructors, Inc. v. Peña, 515 U. S. 200 –274 (1995) (dissenting opinion). Among constitutionally permissible options, I remain convinced, “those that candidly disclose their consideration of race [are] preferable to those that conceal it.” Gratz, 539 U. S., at 305, n. 11 (dissenting opinion).
Accordingly, I would not return this case for a second look. As the thorough opinions below show, 631 F. 3d 213 (CA5 2011); 645 F. Supp. 2d 587, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus, id., at 608; followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student-body diversity, see 631 F. 3d, at 225–226; and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University’s educational objectives, see id., at 226. 3 Justice Powell’s opinion in Bakke and the Court’s decision in Grutter require no further determinations. See Grutter, 539 U. S., at 333–343; Bakke, 438 U. S., at 315–320.
The Court rightly declines to cast off the equal protection framework settled in Grutter. See ante, at 5. Yet it stops short of reaching the conclusion that framework warrants. Instead, the Court vacates the Court of Appeals’ judgment and remands for the Court of Appeals to “assess whether the University has offered sufficient evidence [to] prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” Ante, at 13. As I see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court’s Bakke and Grutter pathmarkers, merits our approbation. 4* * *
For the reasons stated, I would affirm the judgment of the Court of Appeals.
1 See Brief for Amherst College et al. as Amici Curiae 33–35; Brief for Association of American Law Schools as Amicus Curiae 6; Brief for Association of American Medical Colleges et al. as Amici Curiae 30–32; Brief for Brown University et al. as Amici Curiae 2–3, 13; Brief for Robert Post et al. as Amici Curiae 24–27; Brief for Fordham University et al. as Amici Curiae 5–6; Brief for University of Delaware et al. as Amici Curiae 16–21.
2 The notion that Texas’ Top Ten Percent Law is race neutral calls to mind Professor Thomas Reed Powell’s famous statement: “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.” T. Arnold, The Symbols of Government 101 (1935) (internal quotation marks omitted). Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.
3 As the Court said in Grutter v. Bollinger, 539 U. S. 306, 339 (2003) , “[n]arrow tailoring . . . require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” But, Grutter also explained, it does not “require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunitiesto members of all racial groups.” Ibid. I do not read the Court tosay otherwise. See ante, at 10 (acknowledging that, in determining whether a race-conscious admissions policy satisfies Grutter’s narrow-tailoring requirement, “a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes”).
4 Because the University’s admissions policy, in my view, is constitutional under Grutter, there is no need for the Court in this case “to revisit whether all governmental classifications by race, whether designed to benefit or to burden a historically disadvantaged group, should be subject to the same standard of judicial review.” 539 U. S., at 346, n. (Ginsburg, J., concurring). See also Gratz v. Bollinger, 539 U. S. 244, 301 (2003) (Ginsburg, J., dissenting) (“Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated.”).
SUPREME COURT OF THE UNITED STATES
ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al.
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 24, 2013]
Justice Thomas, concurring.
I join the Court’s opinion because I agree that the Court of Appeals did not apply strict scrutiny to the University of Texas at Austin’s (University) use of racial discrimination in admissions decisions. Ante, at 1. I write separately to explain that I would overrule Grutter v. Bollinger, 539 U. S. 306 (2003) , and hold that a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause.I A
The Fourteenth Amendment provides that no State shall “deny to any person . . . the equal protection of the laws.” The Equal Protection Clause guarantees every person the right to be treated equally by the State, without regard to race. “At the heart of this [guarantee] lies the principle that the government must treat citizens as individuals, and not as members of racial, ethnic, or religious groups.” Missouri v. Jenkins, 515 U. S. 70 –121 (1995) (Thomas, J., concurring). “It is for this reason that we must subject all racial classifications to the strictest of scrutiny.” Id., at 121.
Under strict scrutiny, all racial classifications are categorically prohibited unless they are “ ‘necessary to further a compelling governmental interest’ ” and “narrowly tailored to that end.” Johnson v. California, 543 U. S. 499, 514 (2005) (quoting Grutter, supra, at 327). This most exacting standard “has proven automatically fatal” in almost every case. Jenkins, supra, at 121 (Thomas, J., concurring). And rightly so. “Purchased at the price of immeasurable human suffering, the equal protection principle reflects our Nation’s understanding that [racial] classifications ultimately have a destructive impact on the individual and our society.” Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 240 (1995) (Thomas, J., concurring in part and concurring in judgment). “The Constitution abhors classifications based on race” because “every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.” Grutter, supra, at 353 (Thomas, J., concurring in part and dissenting in part).B 1
The Court first articulated the strict-scrutiny standard in Korematsu v. United States, 323 U. S. 214 (1944) . There, we held that “[p]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can.” Id., at 216. 1 Aside from Grutter, the Court has recognized only two instances in which a “[p]ressing public necessity” may justify racial discrimination by the government. First, in Korematsu, the Court recognized that protecting national security may satisfy this exacting standard. In that case, the Court upheld an evacuation order directed at “all persons of Japanese ancestry” on the grounds that the Nation was at war with Japan and that the order had “a definite and close relationship to the prevention of espionage and sabotage.” 323 U. S., at 217–218. Second, the Court has recognized that the government has a compelling interest in remedying past discrimination for which it is responsible, but we have stressed that a government wishing to use race must provide “a ‘strong basis in evidence for its conclusion that remedial action [is] necessary.’ ” Richmond v. J. A. Croson Co., 488 U. S. 469, 500, 504 (1989) (quoting Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277 (1986) (plurality opinion)).
In contrast to these compelling interests that may, in a narrow set of circumstances, justify racial discrimination, the Court has frequently found other asserted interests insufficient. For example, in Palmore v. Sidoti, 466 U. S. 429 (1984) , the Court flatly rejected a claim that the best interests of a child justified the government’s racial discrimination. In that case, a state court awarded custody to a child’s father because the mother was in a mixed-race marriage. The state court believed the child might be stigmatized by living in a mixed-race household and sought to avoid this perceived problem in its custody determination. We acknowledged the possibility of stigma but nevertheless concluded that “the reality of private biases and the possible injury they might inflict” do not justify racial discrimination. Id., at 433. As we explained, “The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.” Ibid.
Two years later, in Wygant, supra, the Court held that even asserted interests in remedying societal discrimination and in providing role models for minority students could not justify governmentally imposed racial discrimination. In that case, a collective-bargaining agreement between a school board and a teacher’s union favored teachers who were “ ‘Black, American Indian, Oriental, or of Spanish descendancy.’ ” Id., at 270–271, and n. 2 (plurality opinion). We rejected the interest in remedying societal discrimination because it had no logical stopping point. Id., at 276. We similarly rebuffed as inadequate the interest in providing role models to minority students and added that the notion that “black students are better off with black teachers could lead to the very system the Court rejected in Brown v. Board of Education, 347 U. S. 483 (1954) .” Ibid.2
Grutter was a radical departure from our strict-scrutiny precedents. In Grutter, the University of Michigan Law School (Law School) claimed that it had a compelling reason to discriminate based on race. The reason it advanced did not concern protecting national security or remedying its own past discrimination. Instead, the Law School argued that it needed to discriminate in admissions decisions in order to obtain the “educational benefits that flow from a diverse student body.” 539 U. S., at 317. Contrary to the very meaning of strict scrutiny, the Court deferred to the Law School’s determination that this interest was sufficiently compelling to justify racial discrimination. Id., at 325.
I dissented from that part of the Court’s decision. I explained that “only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity’ ” sufficient to satisfy strict scrutiny. Id., at 353. Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (Black, J., concurring) (protecting prisoners from violence might justify narrowly tailored discrimination); J. A. Croson, supra, at 521 (Scalia, J., concurring in judgment) (“At least where state or local action is at issue, only a social emergency rising to the level of imminent danger to life and limb . . . can justify [racial discrimination]”). I adhere to that view today. As should be obvious, there is nothing “pressing” or “necessary” about obtaining whatever educational benefits may flow from racial diversity.II A
The University claims that the District Court found that it has a compelling interest in attaining “a diverse student body and the educational benefits flowing from such diversity.” Brief for Respondents 18. The use of the conjunction, “and,” implies that the University believes its discrimination furthers two distinct interests. The first is an interest in attaining diversity for its own sake. The second is an interest in attaining educational benefits that allegedly flow from diversity.
Attaining diversity for its own sake is a nonstarter. As even Grutter recognized, the pursuit of diversity as an end is nothing more than impermissible “racial balancing.” 539 U. S., at 329–330 (“The Law School’s interest is not simply ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’ That would amount to outright racial balancing, which is patently unconstitutional” (quoting Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 307 (1978) ; citation omitted)); see also id., at 307 (“Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids”). Rather, diversity can only be the means by which the University obtains educational benefits; it cannot be an end pursued for its own sake. Therefore, the educational benefits allegedly produced by diversity must rise to the level of a compelling state interest in order for the program to survive strict scrutiny.
Unfortunately for the University, the educational benefits flowing from student body diversity—assuming they exist—hardly qualify as a compelling state interest. Indeed, the argument that educational benefits justify racial discrimination was advanced in support of racial segregation in the 1950’s, but emphatically rejected by this Court. And just as the alleged educational benefits of segregation were insufficient to justify racial discrimination then, see Brown v. Board of Education, 347 U. S. 483 (1954) , the alleged educational benefits of diversity cannot justify racial discrimination today.1
Our desegregation cases establish that the Constitution prohibits public schools from discriminating based on race, even if discrimination is necessary to the schools’ survival. In Davis v. School Bd. of Prince Edward Cty., decided with Brown, supra, the school board argued that if the Court found segregation unconstitutional, white students would migrate to private schools, funding for public schools would decrease, and public schools would either decline in quality or cease to exist altogether. Brief for Appellees in Davis v. School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 30 (hereinafter Brief for Appellees in Davis) (“Virginians . . . would no longer permit sizeable appropriations for schools on either the State or local level; private segregated schools would be greatly increased in number and the masses of our people, both white and Negro, would suffer terribly. . . . [M]any white parents would withdraw their children from the public schools and, as a result, the program of providing better schools would be abandoned” (internal quotation marks omitted)). The true victims of desegregation, the school board asserted, would be black students, who would be unable to afford private school. See id., at 31 (“[W]ith the demise of segregation, education in Virginia would receive a serious setback. Those who would suffer most would be the Negroes who, by and large, would be economically less able to afford the private school”); Tr. of Oral Arg. in Davis v. School Bd. of Prince Edward Cty., O. T. 1954, No. 3, p. 208 (“What is worst of all, in our opinion, you impair the public school system of Virginia and the victims will be the children of both races, we think the Negro race worse than the white race, because the Negro race needs it more by virtue of these disadvantages under which they have labored. We are up against the proposition: What does the Negro profit if he procures an immediate detailed decree from this Court now and then impairs or mars or destroys the public school system in Prince Edward County”). 2
Unmoved by this sky-is-falling argument, we held that segregation violates the principle of equality enshrined in the Fourteenth Amendment. See Brown, supra, at 495 (“[I]n the field of public education the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal”); see also Allen v. School Bd. of Prince Edward Cty., 249 F. 2d 462, 465 (CA4 1957) (per curiam) (“The fact that the schools might be closed if the order were enforced is no reason for not enforcing it. A person may not be denied enforcement of rights to which he is entitled under the Constitution of the United States because of action taken or threatened in defiance of such rights”). Within a matter of years, the warning became reality: After being ordered to desegregate, Prince Edward County closed its public schools from the summer of 1959 until the fall of 1964. See R. Sarratt, The Ordeal of Desegregation 237 (1966). Despite this fact, the Court never backed down from its rigid enforcement of the Equal Protection Clause’s antidiscrimination principle.
In this case, of course, Texas has not alleged that the University will close if it is prohibited from discriminating based on race. But even if it had, the foregoing cases make clear that even that consequence would not justify its use of racial discrimination. It follows, a fortiori, that the putative educational benefits of student body diversity cannot justify racial discrimination: If a State does not have a compelling interest in the existence of a university, it certainly cannot have a compelling interest in the supposed benefits that might accrue to that university from racial discrimination. See Grutter, 539 U. S., at 361 (opinion of Thomas, J.) (“[A] marginal improvement in legal education cannot justify racial discrimination where the Law School has no compelling interest either in its existence or in its current educational and admissions policies”). If the Court were actually applying strict scrutiny, it would require Texas either to close the University or to stop discriminating against applicants based on their race. The Court has put other schools to that choice, and there is no reason to treat the University differently.2
It is also noteworthy that, in our desegregation cases, we rejected arguments that are virtually identical to those advanced by the University today. The University asserts, for instance, that the diversity obtained through its discriminatory admissions program prepares its students to become leaders in a diverse society. See, e.g., Brief for Respondents 6 (arguing that student body diversity “prepares students to become the next generation of leaders in an increasingly diverse society”). The segregationists likewise defended segregation on the ground that it provided more leadership opportunities for blacks. See, e.g., Brief for Respondents in Sweatt 96 (“[A] very large group of Northern Negroes [comes] South to attend separate colleges, suggesting that the Negro does not secure as well-rounded a college life at a mixed college, and that the separate college offers him positive advantages; that there is a more normal social life for the Negro in a separate college; that there is a greater opportunity for full participation and for the development of leadership; that the Negro is inwardly more ‘secure’ at a college of his own people”); Brief for Appellees in Davis 25–26 (“The Negro child gets an opportunity to participate in segregated schools that I have never seen accorded to him in non-segregated schools. He is important, he holds offices, he is accepted by his fellows, he is on athletic teams, he has a full place there” (internal quotation marks omitted)). This argument was unavailing. It is irrelevant under the Fourteenth Amendment whether segregated or mixed schools produce better leaders. Indeed, no court today would accept the suggestion that segregation is permissible because historically black colleges produced Booker T. Washington, Thurgood Marshall, Martin Luther King, Jr., and other prominent leaders. Likewise, the University’s racial discrimination cannot be justified on the ground that it will produce better leaders.
The University also asserts that student body diversity improves interracial relations. See, e.g., Brief for Respondents 6 (arguing that student body diversity promotes “cross-racial understanding” and breaks down racial and ethnic stereotypes). In this argument, too, the University repeats arguments once marshaled in support of segregation. See, e.g., Brief for Appellees in Davis 17 (“Virginia has established segregation in certain fields as a part of her public policy to prevent violence and reduce resentment. The result, in the view of an overwhelming Virginia majority, has been to improve the relationship between the different races”); id., at 25 (“If segregation be stricken down, the general welfare will be definitely harmed . . . there would be more friction developed” (internal quotation marks omitted)); Brief for Respondents in Sweatt 93 (“Texas has had no serious breaches of the peace in recent years in connection with its schools. The separation of the races has kept the conflicts at a minimum”); id., at 97–98 (“The legislative acts are based not only on the belief that it is the best way to provide education for both races, and the knowledge that separate schools are necessary to keep public support for the public schools, but upon the necessity to maintain the public peace, harmony, and welfare”); Brief for Appellees in Briggs 32 (“The southern Negro, by and large, does not want an end to segregation in itself any more than does the southern white man. The Negro in the South knows that discriminations, and worse, can and would multiply in such event” (internal quotation marks omitted)). We flatly rejected this line of arguments in McLaurin v. Oklahoma State Regents for Higher Ed., 339 U. S. 637 (1950) , where we held that segregation would be unconstitutional even if white students never tolerated blacks. Id., at 641 (“It may be argued that appellant will be in no better position when these restrictions are removed, for he may still be set apart by his fellow students. This we think irrelevant. There is a vast difference—a Constitutional difference—between restrictions imposed by the state which prohibit the intellectual commingling of students, and the refusal of individuals to commingle where the state presents no such bar”). It is, thus, entirely irrelevant whether the University’s racial discrimination increases or decreases tolerance.
Finally, while the University admits that racial discrimination in admissions is not ideal, it asserts that it is a temporary necessity because of the enduring race consciousness of our society. See Brief for Respondents 53–54 (“Certainly all aspire for a colorblind society in which race does not matter . . . . But in Texas, as in America, ‘our highest aspirations are yet unfulfilled’ ”). Yet again, the University echoes the hollow justifications advanced by the segregationists. See, e.g., Brief for State of Kansas on Reargument in Brown v. Board of Education, O. T. 1953, No. 1, p. 56 (“We grant that segregation may not be the ethical or political ideal. At the same time we recognize that practical considerations may prevent realization of the ideal”); Brief for Respondents in Sweatt 94 (“The racial consciousness and feeling which exists today in the minds of many people may be regrettable and unjustified. Yet they are a reality which must be dealt with by the State if it is to preserve harmony and peace and at the same time furnish equal education to both groups”); id., at 96 (“ ‘[T]he mores of racial relationships are such as to rule out, for the present at least, any possibility of admitting white persons and Negroes to the same institutions’ ”); Brief for Appellees in Briggs 26–27 (“[I]t would be unwise in administrative practice . . . to mix the two races in the same schools at the present time and under present conditions”); Brief for Appellees on Reargument in Briggs v. Elliott, O. T. 1953, No. 2, p. 79 (“It is not ‘racism’ to be cognizant of the fact that mankind has struggled with race problems and racial tensions for upwards of sixty centuries”). But these arguments too were unavailing. The Fourteenth Amendment views racial bigotry as an evil to be stamped out, not as an excuse for perpetual racial tinkering by the State. See DeFunis v. Odegaard, 416 U. S. 312, 342 (1974) (Douglas, J., dissenting) (“The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized”). The University’s arguments to this effect are similarly insufficient to justify discrimination. 33
The University’s arguments today are no more persuasive than they were 60 years ago. Nevertheless, despite rejecting identical arguments in Brown, the Court in Grutter deferred to the University’s determination that the diversity obtained by racial discrimination would yield educational benefits. There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits. See Grutter, 539 U. S., at 365–366 (opinion of Thomas, J.) (“Contained within today’s majority opinion is the seed of a new constitutional justification for a concept I thought long and rightly rejected—racial segregation”). Educational benefits are a far cry from the truly compelling state interests that we previously required to justify use of racial classifications.B
My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Tr. of Oral Arg. in Brown v. Board of Education, O. T. 1952, No. 8, p. 7; see also Juris. Statement in Davis v. School Bd. of Prince Edward Cty., O. T. 1952, No. 191, p. 8 (“[W]e take the unqualified position that the Fourteenth Amendment has totally stripped the state of power to make race and color the basis for governmental action”); Brief for Appellants in Brown v. Board of Education, O. T. 1952, No. 8, p. 5 (“The Fourteenth Amendment precludes a state from imposing distinctions or classifications based upon race and color alone”); Brief for Appellants in Nos. 1, 2, and 4, and for Respondents in No. 10 on Reargument in Brown v. Board of Education, O. T. 1953, p. 65 (“That the Constitution is color blind is our dedicated belief”). The Constitution does not pander to faddish theories about whether race mixing is in the public interest. The Equal Protection Clause strips States of all authority to use race as a factor in providing education. All applicants must be treated equally under the law, and no benefit in the eye of the beholder can justify racial discrimination.
This principle is neither new nor difficult to understand. In 1868, decades before Plessy, the Iowa Supreme Court held that schools may not discriminate against applicants based on their skin color. In Clark v. Board of Directors, 24 Iowa 266 (1868), a school denied admission to a student because she was black, and “public sentiment [was] opposed to the intermingling of white and colored children in the same schools.” Id., at 269. The Iowa Supreme Court rejected that flimsy justification, holding that “all the youths are equal before the law, and there is no discretion vested in the board . . . or elsewhere, to interfere with or disturb that equality.” Id., at 277. “For the courts to sustain a board of school directors . . . in limiting the rights and privileges of persons by reason of their [race], would be to sanction a plain violation of the spirit of our laws not only, but would tend to perpetuate the national differences of our people and stimulate a constant strife, if not a war of races.” Id., at 276. This simple, yet fundamental, truth was lost on the Court in Plessy and Grutter.
I would overrule Grutter and hold that the University’s admissions program violates the Equal Protection Clause because the University has not put forward a compelling interest that could possibly justify racial discrimination.III
While I find the theory advanced by the University to justify racial discrimination facially inadequate, I also believe that its use of race has little to do with the alleged educational benefits of diversity. I suspect that the University’s program is instead based on the benighted notion that it is possible to tell when discrimination helps, rather than hurts, racial minorities. See post, at 3 (Ginsburg, J., dissenting) (“[G]overnment actors, including state universities, need not be blind to the lingering effects of ‘an overtly discriminatory past,’ the legacy of ‘centuries of law-sanctioned inequality’ ”). But “[h]istory should teach greater humility.” Metro Broadcasting, Inc. v. FCC, 497 U. S. 547, 609 (1990) (O’Connor, J., dissenting). The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities.A
Slaveholders argued that slavery was a “positive good” that civilized blacks and elevated them in every dimension of life. See, e.g., Calhoun, Speech in the U. S. Senate, 1837, in P. Finkelman, Defending Slavery 54, 58–59 (2003) (“Never before has the black race of Central Africa, from the dawn of history to the present day, attained a condition so civilized and so improved, not only physically, but morally and intellectually. . . . [T]he relation now existing in the slaveholding States between the two [races], is, instead of an evil, a good—a positive good”); Harper, Memoir on Slavery, in The Ideology of Slavery 78, 115–116 (D. Faust ed. 1981) (“Slavery, as it is said in an eloquent article published in a Southern periodical work . . . ‘has done more to elevate a degraded race in the scale of humanity; to tame the savage; to civilize the barbarous; to soften the ferocious; to enlighten the ignorant, and to spread the blessings of [C]hristianity among the heathen, than all the missionaries that philanthropy and religion have ever sent forth’ ”); Hammond, The Mudsill Speech, 1858, in Defending Slavery, supra, at 80, 87 (“They are elevated from the condition in which God first created them, by being made our slaves”).
A century later, segregationists similarly asserted that segregation was not only benign, but good for black students. They argued, for example, that separate schools protected black children from racist white students and teachers. See, e.g., Brief for Appellees in Briggs 33–34 (“ ‘I have repeatedly seen wise and loving colored parents take infinite pains to force their little children into schools where the white children, white teachers, and white parents despised and resented the dark child, made mock of it, neglected or bullied it, and literally rendered its life a living hell. Such parents want their child to “fight” this thing out,—but, dear God, at what a cost! . . . We shall get a finer, better balance of spirit; an infinitely more capable and rounded personality by putting children in schools where they are wanted, and where they are happy and inspired, than in thrusting them into hells where they are ridiculed and hated’ ” (quoting DuBois, Does the Negro Need Separate Schools? 4 J. of Negro Educ. 328, 330–331 (1935))); Tr. of Oral Arg. in Bolling v. Sharpe, O. T. 1952, No. 413, p. 56 (“There was behind these [a]cts a kindly feeling [and] an intention to help these people who had been in bondage. And there was and there still is an intention by the Congress to see that these children shall be educated in a healthful atmosphere, in a wholesome atmosphere, in a place where they are wanted, in a place where they will not be looked upon with hostility, in a place where there will be a receptive atmosphere for learning for both races without the hostility that undoubtedly Congress thought might creep into these situations”). And they even appealed to the fact that many blacks agreed that separate schools were in the “best interests” of both races. See, e.g., Brief for Appellees in Davis 24–25 (“ ‘It has been my experience, in working with the people of Virginia, including both white and Negro, that the customs and the habits and the traditions of Virginia citizens are such that they believe for the best interests of both the white and the Negro that the separate school is best’ ”).
Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign. “ ‘[B]enign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” See Metro Broadcasting, 497 U. S., at 610 (O’Connor, J., dissenting). It is for this reason that the Court has repeatedly held that strict scrutiny applies to all racial classifications, regardless of whether the government has benevolent motives. See, e.g., Johnson, 543 U. S., at 505 (“We have insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications”); Adarand, 515 U. S., at 227 (“[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”); J. A. Croson, 488 U. S., at 500 (“Racial classifications are suspect, and that means that simple legislative assurances of good intention cannot suffice”). The University’s professed good intentions cannot excuse its outright racial discrimination any more than such intentions justified the now denounced arguments of slaveholders and segregationists.B
While it does not, for constitutional purposes, matter whether the University’s racial discrimination is benign, I note that racial engineering does in fact have insidious consequences. There can be no doubt that the University’s discrimination injures white and Asian applicants who are denied admission because of their race. But I believe the injury to those admitted under the University’s discriminatory admissions program is even more harmful.
Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates. In the University’s entering class of 2009, for example, among the students admitted outside the Top Ten Percent plan, blacks scored at the 52d percentile of 2009 SAT takers nationwide, while Asians scored at the 93d percentile. Brief for Richard Sander et al. as Amici Curiae 3–4, and n. 4. Blacks had a mean GPA of 2.57 and a mean SAT score of 1524; Hispanics had a mean GPA of 2.83 and a mean SAT score of 1794; whites had a mean GPA of 3.04 and a mean SAT score of 1914; and Asians had a mean GPA of 3.07 and a mean SAT score of 1991. 4 Ibid.
Tellingly, neither the University nor any of the 73 amici briefs in support of racial discrimination has presented a shred of evidence that black and Hispanic students are able to close this substantial gap during their time at the University. Cf. Thernstrom & Thernstrom, Reflections on the Shape of the River, 46 UCLA L. Rev. 1583, 1605–1608 (1999) (discussing the failure of defenders of racial discrimination in admissions to consider the fact that its “beneficiaries” are underperforming in the classroom). “It is a fact that in virtually all selective schools . . . where racial preferences in admission is practiced, the majority of [black] students end up in the lower quarter of their class.” S. Cole & E. Barber, Increasing Faculty Diversity: The Occupational Choices of High-Achieving Minority Students 124 (2003). There is no reason to believe this is not the case at the University. The University and its dozens of amici are deafeningly silent on this point.
Furthermore, the University’s discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally. Instead, the University’s discrimination has a pervasive shifting effect. See T. Sowell, Affirmative Action Around the World 145–146 (2004). The University admits minorities who otherwise would have attended less selective colleges where they would have been more evenly matched. But, as a result of the mismatching, many blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete. Setting aside the damage wreaked upon the self-confidence of these overmatched students, there is no evidence that they learn more at the University than they would have learned at other schools for which they were better prepared. Indeed, they may learn less.
The Court of Appeals believed that the University needed to enroll more blacks and Hispanics because they remained “clustered in certain programs.” 631 F. 3d 213, 240 (CA5 2011) (“[N]early a quarter of the undergraduate students in [the University’s] College of Social Work are Hispanic, and more than 10% are [black]. In the College of Education, 22.4% of students are Hispanic and 10.1% are [black]”). But racial discrimination may be the cause of, not the solution to, this clustering. There is some evidence that students admitted as a result of racial discrimination are more likely to abandon their initial aspirations to become scientists and engineers than are students with similar qualifications who attend less selective schools. See, e.g., Elliott, Strenta, Adair, Matier, & Scott, The Role of Ethnicity in Choosing and Leaving Science in Highly Selective Institutions, 37 Research in Higher Educ. 681, 699–701 (1996). 5 These students may well drift towards less competitive majors because the mismatch caused by racial discrimination in admissions makes it difficult for them to compete in more rigorous majors.
Moreover, the University’s discrimination “stamp[s] [blacks and Hispanics] with a badge of inferiority.” Adarand, 515 U. S., at 241 (opinion of Thomas, J.). It taints the accomplishments of all those who are admitted as a result of racial discrimination. Cf. J. McWhorter, Losing the Race: Self-Sabotage in Black America 248 (2000) (“I was never able to be as proud of getting into Stanford as my classmates could be. . . . [H]ow much of an achievement can I truly say it was to have been a good enough black person to be admitted, while my colleagues had been considered good enough people to be admitted”). And, it taints the accomplishments of all those who are the same race as those admitted as a result of racial discrimination. In this case, for example, most blacks and Hispanics attending the University were admitted without discrimination under the Top Ten Percent plan, but no one can distinguish those students from the ones whose race played a role in their admission. “When blacks [and Hispanics] take positions in the highest places of government, industry, or academia, it is an open question . . . whether their skin color played a part in their advancement.” See Grutter, 539 U. S., at 373 (opinion of Thomas, J.). “The question itself is the stigma—because either racial discrimination did play a role, in which case the person may be deemed ‘otherwise unqualified,’ or it did not, in which case asking the question itself unfairly marks those . . . who would succeed without discrimination.” Ibid. Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping.* * *
For the foregoing reasons, I would overrule Grutter. However, because the Court correctly concludes that the Court of Appeals did not apply strict scrutiny, I join its opinion.
1 The standard of “pressing public necessity” is more frequently called a “compelling governmental interest.” I use the terms interchangeably.
2 Similar arguments were advanced unsuccessfully in other cases as well. See, e.g., Brief for Respondents in Sweatt v. Painter, O. T. 1949, No. 44, pp. 94–95 (hereinafter Brief for Respondents in Sweatt) (“[I]f the power to separate the students were terminated, . . . it would be as a bonanza to the private white schools of the State, and it would mean the migration out of the schools and the turning away from the public schools of the influence and support of a large number of children and of the parents of those children . . . who are the largest contributors to the cause of public education, and whose financial support is necessary for the continued progress of public education. . . . Should the State be required to mix the public schools, there is no question but that a very large group of students would transfer, or be moved by their parents, to private schools with a resultant deterioration of the public schools” (internal quotation marks omitted)); Brief for Appellees in Briggs v. Elliott, O. T. 1952, No. 101, p. 27 (hereinafter Brief for Appellees in Briggs) (“[I]t would be impossible to have sufficient acceptance of the idea of mixed groups attending the same schools to have public education on that basis at all . . . . [I]t would eliminate the public schools in most, if not all, of the communities in the State”).
3 While the arguments advanced by the University in defense of discrimination are the same as those advanced by the segregationists, one obvious difference is that the segregationists argued that it was segregation that was necessary to obtain the alleged benefits, whereas the University argues that diversity is the key. Today, the segre-gationists’ arguments would never be given serious considera-tion. But see M. Plocienniczak, Pennsylvania School Experiments with ‘Segregation,’ CNN (Jan. 27, 2011), http://www.cnn.com/2011/US/01/27/pennsylvania.segregation/index.html?_s=PM:US (as visited June 21, 2013, and available in Clerk of Court’s case file). We should be equally hostile to the University’s repackaged version of the same arguments in support of its favored form of racial discrimination.
4 The lowest possible score on the SAT is 600, and the highest possible score is 2400.
5 The success of historically black colleges at producing graduates who go on to earn graduate degrees in science and engineering is well documented. See, e.g., National Science Foundation, J. Burrelli & A. Rapoport, InfoBrief, Role of HBCUs as Baccalaureate-Origin Institutions of Black S&E Doctorate Recipients 6 (2008) (Table 2) (showing that, from 1997–2006, Howard University had more black students who went on to earn science and engineering doctorates than any other undergraduate institution, and that 7 other historically black colleges ranked in the top 10); American Association of Medical Colleges, Diversity in Medical Education: Facts & Figures 86 (2012) (Table 19) (showing that, in 2011, Xavier University had more black students who went on to earn medical degrees than any other undergraduate institution and that Howard University was second).
SUPREME COURT OF THE UNITED STATES
ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY OF TEXAS AT AUSTIN et al.
on writ of certiorari to the united states court of appeals for the fifth circuit
[June 24, 2013]
Justice Scalia, concurring.
I adhere to the view I expressed in Grutter v. Bollinger: “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” 539 U. S. 306, 349 (2003) (opinion concurring in part and dissenting in part). The petitioner in this case did not ask us to overrule Grutter’s holding that a “compelling interest” in the educational benefits of diversity can justify racial preferences in university admissions. Tr. of Oral Arg. 8–9. I therefore join the Court’s opinion in full.
ORAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER
Bert W. Rein: Mr. Chief Justice, and may it please the Court--
Chief Justice John G. Roberts: Well, I get to say that this is Case Number 11-345, Fisher against the University of Texas at Austin.
And you get to say--
Bert W. Rein: Mr. Chief Justice, General Suter trained me too well.
Mr. Chief Justice, and members of the Court, and may it please the Court:
The central issue here is whether the University of Texas at Austin can carry its burden approving that its use of race as an admissions-plus factor in the consequent denial of equal treatment, which is the central mandate of the Equal Protection Clause, to Abigail Fisher met the two tests of strict scrutiny which are applicable.
Justice Ruth Bader Ginsburg: Mr. Rein, before we get to that, because the Court is supposed to raise it on its own: The question of standing.
The injury -- if the injury is rejection by the University of Texas, and the answer is no matter what, this person would not have been accepted, then how is the injury caused by the affirmative action program?
Bert W. Rein: --Well, Justice Ginsburg, the first injury that was before the court was the use of a system which denied equal treatment.
It was a Constitutional injury, and part of the damage claim was premised directly on the Constitutional issue.
Justice Sonia Sotomayor: How do you get past Texas v. Lesage with that injury, which says that mere use of race is not cognizable injury sufficient for standing?
Bert W. Rein: Lesage was litigated on its merits, and the question was whether Lesage could carry his case when -- on summary judgment when it was apparent that his complaint, which was that he was denied access to the graduate program at the University of Texas, was not sustainable.
As I said -- and there are several factors in this case that are quite different.
First, there is a Constitutional injury as such, and the Court has recognized it.
Second, the fact premise, she could not have been allowed in under any circumstance, was never tested below, wasn't raised below.
It comes up in a footnote in--
Justice Sonia Sotomayor: Can I go to another side?
Bert W. Rein: --Correct.
Justice Sonia Sotomayor: She disclaimed the desire after her application to go to the school at all.
She was permitted to apply for the summer program and get in automatically, and she didn't, correct?
Bert W. Rein: No, that's not correct, Your Honor.
She -- she was not automatically admitted.
She was considered for the summer program and rejected.
You are talking about the CAP program, where she could have attended a different university in the Texas system, and had she been able to achieve--
Justice Sonia Sotomayor: But she's graduated.
Bert W. Rein: --She has graduated.
Justice Sonia Sotomayor: Injunctive relief, she's not going to get.
So what measure of damages will she get or will she be entitled to?
Bert W. Rein: Well, that issue, of course, is bifurcated, and we've reserved the ability to--
Justice Sonia Sotomayor: But you have to claim an injury, so what's the injury--
Bert W. Rein: --Well--
Justice Sonia Sotomayor: --that you're claiming that would sustain a claim of damages?
Bert W. Rein: --the denial of her right to equal treatment is a constitutional injury in and of itself, and we had claimed certain damages on that.
We -- we started the case before it was clear whether she would or wouldn't be admitted.
Justice Sonia Sotomayor: You still haven't answered how Lesage gets away from that--
Bert W. Rein: Well, if there's--
Justice Sonia Sotomayor: --but if there's a -- give me another--
Bert W. Rein: --Well, I think--
Justice Sonia Sotomayor: --damages question.
Bert W. Rein: --On the -- if we then, on remand, were to assert damages contingent upon the fact that she should have been admitted to UT and was not admitted, we would then have to prove that but for the use of race she would be admitted.
That's the thrust of Lesage.
Whether we can prove it or can't prove it is something you can't tell on this record.
It's merely asserted.
And I would point out that Texas said below, there was no way to determine that issue without--
Justice Sonia Sotomayor: What damages--
Justice Antonin Scalia: We've had cases involving alleged discrimination in state -- state contracting, and we haven't required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise, have we?
Bert W. Rein: --No, sir.
Justice Antonin Scalia: It's -- it's been enough that there was a denial of equal protection.
Bert W. Rein: That is our correct, and that is our first premise.
And I would say that the same issue was raised in Bakke.
And in Bakke, the contention was he couldn't have gotten into the medical school; therefore, he has no case.
The Court said, in footnote 14 to Justice Powell's opinion, that's a matter of merits; it is not a matter of standing.
I think in Parents Involved, the same type of contention was made with respect to the Louisville class plaintiffs whose son had been admitted to the school of his choice, and the Court said damages are enough to sustain standing.
There is a live damages claim here, and I don't think there is a question of standing.
Justice Antonin Scalia: Her claim is not necessarily that she would have been -- would have been admitted, but that she was denied a fair chance in the admission lottery.
Just as when a person is denied participation in the contracting lottery, he has suffered an injury.
Bert W. Rein: Yes, Justice Scalia, I agree with that.
Justice Stephen G. Breyer: If you are going to the merits, I want to know whether you want us to -- or are asking us to overrule Grutter.
Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed.
And so, are you?
And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?
Bert W. Rein: Justice Breyer, we have said very carefully we were not trying to change the Court's disposition of the issue in Grutter, could there be a legitimate, a compelling interest in moving -- in using race to establish a diverse class.
What -- the problem that we've encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass--
Justice Stephen G. Breyer: So your question is whether -- your point is, does your case satisfy Grutter?
Is that what you're arguing?
Bert W. Rein: --We litigated it on that basis, yes.
Justice Stephen G. Breyer: Well, how do you want to argue it right now in the next ten minutes?
I'm interested because I have a very short time to get my question out, and I need to know how you are going to argue it.
Bert W. Rein: Well, Justice Breyer, our argument is we can satisfy Grutter if it's properly read.
What we've seen--
Justice Ruth Bader Ginsburg: May I ask you on that specifically, let's take away the 10 percent solution.
Suppose the only plan were the one that is before the Court now, no 10 percent.
This is the exclusive way that the University is attempting to increase minority enrollment.
Then, if we had no 10 percent solution, under Grutter would this plan be acceptable?
Bert W. Rein: --Well, I think that there would be flaws under Grutter even if you assumed away something that can't be assumed away because it is a matter of Texas law, that is, there is a top 10 percent program, and that--
Justice Ruth Bader Ginsburg: Well, then the question is can you have both?
But it seems to me that this program is certainly no more aggressive than the one in Grutter; it's more -- in fact, more modest.
Bert W. Rein: --Well, I don't agree with that, and let me explain why.
In order to satisfy Grutter, you first have to say that you are not just using race gratuitously, but it is in the interest of producing a critical mass of otherwise underrepresented students.
And so to be within Grutter framework, the first question is, absent the use of race, would we be generating a critical mass?
To answer that question, you start -- you've got to examine in context the so-called soft factors that are in Grutter.
You know, are -- is there an isolation on campus?
Do members of minority feel that they cannot speak out?
Justice Sonia Sotomayor: --The one social studies that this University did said that minority students overwhelmingly, even with the numbers they have now, are feeling isolated.
So what do -- why isn't that even under your test?
We can go back to whether substantial evidence is adequate, is necessary, or not.
Why does their test fail?
Bert W. Rein: Well, the survey was -- a random survey.
It's not reported in any systematic way.
They evidently interviewed students.
And it was all about classroom isolation.
It wasn't about--
Justice Antonin Scalia: Was it done before or after they announced the decision to reinstitute racial quotas?
Bert W. Rein: --It was done after President Faulkner had made the declaration they were going to do it.
It was done before--
Justice Antonin Scalia: Which came almost immediately after our decision on Grutter.
Bert W. Rein: --On the -- I believe, on the same day.
Justice Antonin Scalia: And by the way, do you think that Grutter -- this goes to Justice Breyer's question -- do you think that Grutter held that there is no more affirmative action in higher education after 2028?
Bert W. Rein: No, I don't.
Justice Antonin Scalia: Was that the holding of Grutter?
Justice Stephen G. Breyer: I agree it might, but I want to get to the question, see what I'm trying to pinpoint, because we have such a limited time.
And to me, the one thing I want to pinpoint, since you're arguing on that this satisfies Grutter if properly understood, as you say that.
In looking up, we have a two-court rule.
And two courts have found, it seems to me.
That here there is a certain -- there is no quota.
It is individualized.
It is time limited.
It was adopted after the consideration of race-neutral means.
Each applicant receives individual consideration, and race did not become the predominant factor.
So I take those as a given.
And then I want to know what precisely it is that Grutter required in your opinion that makes this different from Grutter, in that it was not satisfied here?
The ones I listed two courts say are the same.
So maybe there's some others.
Bert W. Rein: I'm not sure we agree with those courts in their method of analysis.
Justice Stephen G. Breyer: But we have a rule that if two courts say it, we're very reluctant, on something connected with facts, to overturn it.
So -- so that's why I mention that.
Bert W. Rein: And -- particularly in the case of considering alternatives that have worked about as well, I think that's a legal question this Court is free to act on.
Justice Antonin Scalia: There are facts and there are facts, aren't there?
Bert W. Rein: So if I might try to answer your question, there was no effort in this case to establish even a working target for critical mass.
They simply ignored it.
They just used words and they said we've got to do more.
So they never answered the predicate question which Grutter asks: Absent the use of race, can we generate a critical mass?
So -- I mean, that's a flaw we think is in Grutter.
We think it's necessary for this Court to restate that principle.
Now, whether that--
Justice Antonin Scalia: That -- that's a normal fact that we accede to two-court holdings on: Whether there is or is not a critical mass?
Bert W. Rein: --No.
Justice Antonin Scalia: It's a weird kind of a fact.
Bert W. Rein: --And I'm -- I'm not saying--
Justice Antonin Scalia: It's an estimation, isn't it?
Bert W. Rein: --Justice Scalia, that is correct.
And in addition, the courts didn't find whether a critical mass--
Justice Sonia Sotomayor: So could you tell me what a critical mass was?
I'm looking at the number of blacks in the University of Texas system.
Pre-Grutter, when the State was indisputably still segregating, it was 4 percent.
Today, under the post-Grutter system, it's 6 percent.
The 2 percent increase is enough for you, even though the State population is at 12 percent?
Somehow, they've reached a critical mass with just the 2 percent increase?
Bert W. Rein: --Well, we don't believe that demographics are the key to underrepresentation of critical mass.
Justice Sonia Sotomayor: No -- putting aside -- I don't -- I'm not going to quarrel with you that if demographics alone were being used, I would be somewhat concerned.
But you can't seriously suggest that demographics aren't a factor to be looked at in combination with how isolated or not isolated your student body is actually reporting itself to feel?
Bert W. Rein: Well, I think if you start to split out subgroups of minorities, you mistake I think what I think is the proper thrust of Grutter, or at least ought to be.
Justice Sonia Sotomayor: It might be -- it might be insulting to some to be thrown into a pot.
Justice Antonin Scalia: Why -- why don't you seriously suggest that?
Why don't you seriously suggest that demographic -- that the demographic makeup of the State has nothing to do with whether somebody feels isolated, that if you're in a State that is only 1 percent black that doesn't mean that you're not isolated so long as there's 1 percent in the class?
Bert W. Rein: Certainly -- racial balance--
Justice Antonin Scalia: I wish you would take that position, because it seems to me right.
Bert W. Rein: --Justice Scalia, racial balancing is not a permissible interest, and we are constantly -- this Court has constantly held not a permissible interest.
And that is something we certainly agree with.
Trying to respond to Justice Sotomayor and in the framework of Grutter, what you're looking at is, do you -- does this person, member of a so-called underrepresented minority -- it's a concept we don't necessarily accept, but it's Texas's concept -- are they isolated?
Are they unable to speak out?
And I think we've always said if you have a very large number, as Texas did in 2004 when they ostensibly made the decision to reinstitute race, they had a 21 percent admission percentage of what they called the underrepresented minorities.
They also had about an 18 percent admission ratio of Asian-Americans.
So on campus, you're talking about -- about 40 percent of the class being minorities.
Justice Stephen G. Breyer: But the test is -- the test is, in your opinion -- I have to write this in the opinion, you say -- the proper test of critical mass is is the minority isolated, unable to speak out.
That's the test.
And it wasn't in Grutter or was in Grutter?
And in your opinion, it was in Grutter.
Bert W. Rein: Yes.
It said expressly in Grutter--
Justice Stephen G. Breyer: Isolated.
And the reason it was satisfied there and not here is?
Bert W. Rein: --In Grutter, the Court assumed that the very small number of admissions, minority admissions, looked at as the whole -- and it was looked at as a whole, only as a whole in Grutter -- would have yielded about 3 or 4 percent minority admission in a class of 350, which means about 12 to 15 students--
Justice Sonia Sotomayor: So what are you telling us is the standard of critical mass?
At what point does a district court or a university know that it doesn't have to do any more to equalize the desegregation that has happened in that particular State over decades, that it's now going to be stuck at a fixed number and it has to change its rules.
What's that fixed number?
Bert W. Rein: --We -- it's not our burden to establish the number.
It was the burden of the University of Texas to determine whether--
Justice Sonia Sotomayor: Well, they told -- they told the district court.
They took a study of students.
They analyzed the composition of their classes, and they determined in their educational judgment that greater diversity, just as we said in Grutter, is a goal of their educational program, and one that includes diversifying classes.
So what more proof do you require?
Bert W. Rein: --Well, if you are allowed to state all the grounds that need to be proved, you will always prove them, in all fairness, Justice Sotomayor.
The question is, they have--
Justice Sonia Sotomayor: Well, but given it was in the evidence, what more do you think they needed?
I think I hear all you saying in your brief is the number's fixed now, they got enough, no more is necessary.
Bert W. Rein: --What we're saying in the brief was they were generating in fact a very substantial number of minority presence on campus.
Justice Sonia Sotomayor: That's enough now.
Bert W. Rein: And--
Justice Sonia Sotomayor: That's what you're saying.
Bert W. Rein: --No.
And that immediately thrust upon them the responsibility, if they wanted to -- you know, essentially move away from equal treatment, they had to establish we have a purpose, we are trying to generate a critical mass of minorities that otherwise could not be achieved.
Justice Sonia Sotomayor: Tell me -- tell me what about their use of race did not fit the narrow tailoring, not the necessity prong as you've defined it, but the narrow tailoring that Grutter required?
How is race used by them in a way that violated the terms of Grutter?
Bert W. Rein: And for this purpose--
Justice Sonia Sotomayor: Assuming that the need is there.
I know you're challenging the need.
Bert W. Rein: --Put -- put aside whether this was necessary and whether it was an appropriate last resort in a quest for diversity and critical mass, because Grutter's not without limits.
But I'll put that aside and let me come directly to your question.
First of all, if you think about narrow tailoring, you can't tailor to the unknown.
If you have no range of evaluation, if you have no understanding of what critical mass means, you can't tailor to it.
Justice Sonia Sotomayor: So you have to set a quota for critical mass?
Bert W. Rein: No.
There's a huge difference, and it's an important one that is not well put out by the University of Texas.
Having a range, a view as to what would be an appropriate level of comfort, critical mass, as defined in Grutter, allows you to evaluate where you are--
Justice Sonia Sotomayor: So we won't call it a quota; we'll call it a goal, something Grutter said you shouldn't have.
Bert W. Rein: --Well, Justice Sotomayor, I think it's very important to distinguish between the operative use of that range, in other words, that's where we are, and we're going to use race until we get there every year in consideration of each application, which was a problem.
Justice Sonia Sotomayor: Boy, it sounds awfully like a quota to me that Grutter said you should not be doing, that you shouldn't be setting goals, that you shouldn't be setting quotas; you should be setting an individualized assessment of the applicants.
Tell me how this system doesn't do that.
Bert W. Rein: This system doesn't -- I mean, it's not narrowly tailored because it doesn't fit.
There are certain forms of Grutter that it follows.
Justice Samuel Alito: Mr. Rein, do you understand what the University of Texas thinks is the definition of a critical mass?
Because I don't.
Bert W. Rein: --Well, it simply reiterated the language of Grutter.
They have no definition.
They can't fit--
Justice Ruth Bader Ginsburg: Mr. Rein, it seems to me that in your talking about critical mass, you are relying entirely on the 10 percent is enough.
They don't -- they got minorities through the 10 percent, so they don't need any more.
And I tried to get you rigidly to focus on -- forget the 10 percent plan.
This is the entire plan.
Bert W. Rein: --Well, let me tell you that if you look outside the Top 10, at the so-called AI/PAI admits only -- forget the Top 10 for a minute, they were generating approximately 15 percent minority admissions outside the Top 10, which is in -- above what the target was in Grutter.
So this is not Grutter on its facts.
It's vastly different.
This is a--
Justice Ruth Bader Ginsburg: Because of the 10 percent.
Bert W. Rein: --No, it was -- I'm talking about only the non-Top 10 percent admissions.
15 percent of those were so-called underrepresented minorities.
This is without the Top 10.
Now, the Top 10 is also a major generator of admissions for underrepresented minorities.
Justice Anthony Kennedy: And -- and this was before the adoption of the plan.
Bert W. Rein: That is correct.
Chief Justice John G. Roberts: Well, I'm sorry.
Now I'm confused.
I thought the 15 percent figure was the one that was arrived at with the 10 percent plan.
Bert W. Rein: No.
With the 10 percent plan, it's much higher.
In 2004, it was 21 percent for just Hispanics and African Americans, and these are the categories they used.
If you add in Asians, it was over 38 percent.
But I'm isolating -- in response to Justice Ginsburg, I'm isolating to the non-top 10 admissions.
Those are over 15 percent in that year, and they average very close to that over time.
So the -- the total generation of minority presence is a combination of the two in fact, but the AI/PAI system -- which was adopted in response to Hopwood.
It was -- as Texas says, it was the first thing they tried to accommodate to their loss of the ability to use race directly, which came up in Hopwood.
So that was their first response, to look at a more balanced admission program between Academic Index and Personal Achievement Index.
So it is not a system which just excludes minorities.
Justice Anthony Kennedy: Could you comment on this, and then I hope we can get back to Justice Alito's question.
You argue that the University's race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities.
And I had trouble with that reading the brief.
I said, well, if it's so few, then what's the problem.
Bert W. Rein: Well, it's a question--
Justice Anthony Kennedy: Then -- let's assume--
Bert W. Rein: --Excuse me, Justice Kennedy.
Justice Anthony Kennedy: --that it resulted in the admission of many minorities.
Then you'd come back and say, oh, well, this is -- this shows that we were probably wrongly excluded.
Bert W. Rein: Well--
Justice Anthony Kennedy: --I see an inconsistency here.
Bert W. Rein: --Well--
Justice Anthony Kennedy: Is it -- are you saying that you shouldn't impose this hurt or this injury, generally, for so little benefit; is that the point?
Bert W. Rein: --Well, yes, that's part of it.
The second is the question of reasonably available alternatives.
If we take Texas at its word, and it says they are satisfied, they are happy going on with the way they apply race today, we tried to measure, well, what difference is it making, and could you achieve the same thing with a reasonably available race-neutral alternative.
That's a question that was asked in Grutter.
They were supposed to analyze that.
They didn't look at it.
Justice Ruth Bader Ginsburg: But -- the race-neutral alternative is the 10 percent plan?
Bert W. Rein: --The race-neutral alternative includes an extension of the 10 percent plan because it's a major generator of minority admissions.
And right now, that ranges at 30 percent.
Justice Ruth Bader Ginsburg: But you say, and that's okay because it's -- it's race-neutral, but is it really?
I mean, the -- the only reason that they instituted the 10 percent plan was to increase minority enrollment.
Bert W. Rein: Well, we say--
Justice Ruth Bader Ginsburg: And that -- the only way it works is if you have heavily separated schools.
And worse than that, I mean, if you -- if you want to go to the University of Texas under the 10 percent plan, you go to the low-performing school, you don't take challenging courses, because that's how you'll get into the 10 percent.
So maybe the University is concerned that that is an inadequate way to deal with it.
Bert W. Rein: --But, Justice Ginsburg, let -- let me say that -- that a lot of that is speculative.
There is nothing in the record to support it.
We don't know.
They've never surveyed the top 10 admits, the minority admits, to see, well, did you--
Justice Antonin Scalia: Excuse me.
The 10 percent plan is not imposed by the University.
It's not their option--
Bert W. Rein: --Correct.
Justice Antonin Scalia: --to say this -- this is not good for education because people will take easy courses.
It's imposed by state law, isn't it?
Bert W. Rein: Correct.
Justice Antonin Scalia: Anybody who is in the top 10 percent of any school in the state gets into the University of Texas.
Bert W. Rein: Yes.
And even the Fifth Circuit said you can't disregard its consequences because it's a matter of law.
I'm simply saying they could choose to extend it beyond where it is because it's capped today at 75 percent.
But that's not the only option.
That's not the only alternative.
And certainly one simple alternative is they could look at the yield, that is, what percentage of the admitted minorities are they actually encouraging and -- and enrolling.
Justice Stephen G. Breyer: Or they could -- this is what is underlying my thing here.
I want to get you directly to answer it.
I did look up the figures.
And before Hopwood and the 10 percent plan, it looked on the African American side that it averaged about 5 -- 5 percent per year, really, pretty steadily.
Then after Hopwood and 10 percent, it went down a little bit, not a lot, but it went down to about 3 and a half percent, 4 percent, maybe.
And then they introduced Grutter, and it's back up to 5 percent.
Bert W. Rein: No--
Justice Stephen G. Breyer: Okay.
Now, is that a lot?
Is that a little?
There are several thousand admissions officers in the United States, several thousand universities, and what is it we're going to say here that wasn't already said in Grutter that isn't going to take hundreds or thousands of these people and have Federal judges dictating the policy of admission of all these universities?
You see why I'm looking for some certainty.
Bert W. Rein: --But Justice--
Justice Stephen G. Breyer: I saw what happened, you saw the numbers.
Sorry, go ahead.
Bert W. Rein: --Justice Breyer, just -- I will answer your question.
I'd like to reserve a little time.
Justice Stephen G. Breyer: You can answer it later if you want, or not answer it at all if you don't.
Bert W. Rein: No, I am perfectly happy to -- to answer your question.
I think that the increase in African American admissions that you're looking at was pre-Grutter.
It was generated before 2004.
Justice Stephen G. Breyer: Uh-huh.
Bert W. Rein: So I just want to make clear the record doesn't depend -- they don't depend on race to do it.
It's minimal change with the use of race.
And that's why we say there is an alternative which would serve it about as well in increasing yield or, indeed, in reweighting the -- the PAI, which is a critical element here, so that you put more emphasis on the socioeconomic factors and less emphasis on the essays, which are an academic measure within the PAI.
So there are lots that they could do--
Justice Sonia Sotomayor: So now we're going to tell the universities how to run and how to weigh qualifications, too?
Bert W. Rein: --It's not the job of the Court to tell them how to do it.
It's their job to examine the alternatives available to them and see if they couldn't achieve the same thing.
Justice Sonia Sotomayor: Could you tell me again how race and their use of race overwhelms those other factors in their system as it's created?
Bert W. Rein: I -- the question is not whether it overwhelms them.
They're -- but they say, they admit, it is effective.
There are admissions that would not have taken place but for; somebody else would have had that place but for the use of race.
And I think, Justice Kennedy, just to answer your question fully, you have to analyze race-neutral alternatives.
And if you look at Parents Involved, that -- that was the critical question.
The -- the outcomes were so small that there were readily available alternatives.
Justice Anthony Kennedy: Well, perhaps you could summarize by saying -- by telling us, from your point of view, this plan fails strict scrutiny on one or two or both levels, (a), because the objective is inappropriate or ill defined, and, (b), because of the implementation is defective.
Which or both of those are you arguing?
Bert W. Rein: We have argued both, and we continue to argue both.
It is not a necessary--
Justice Anthony Kennedy: And in what respect does this plan fail strict scrutiny under either of those -- under both of those categories?
Bert W. Rein: --Okay.
Under the category -- the first category, was it a necessary means of pursuing a compelling interest, we don't believe they've shown any necessity for doing what they were doing.
And certainly, it -- race should have been a last resort; it was a first resort.
That's, in a nutshell, that prong of it.
And in order -- and they failed in every respect.
If you go to narrow tailoring, what we are saying is they didn't consider alternatives, and their treatment of, as we have pointed out, Asian Americans and Hispanics makes a -- an incomprehensible distinction.
They say, we don't worry about Asians, there are a lot of Asians, it's a demographic measure, which is a forbidden measure.
They are in excess of their share of the Texas population.
But if you are trying to find individual comfort levels, if you are breaking it down between African Americans and -- and Hispanics, the--
Justice Sonia Sotomayor: Counsel, you are the one who in your brief has assumed that they are valuing different races differently.
But Asian numbers have gone up, under however they have structured this PAI.
And as I understand their position, race is balanced against other issues like socioeconomics, the strength of the classes people took.
It's never a stand alone.
So even a white student, I presume, who goes to an entirely black or an entirely Latino school, who becomes class president would get some points because he has or she has proven that they foster or can deal in a diverse environment.
That's how I understood their plan; that it's not just giving you a plus because of race, it's combining that with other factors.
Bert W. Rein: --There is a plus because of race.
There are many other factors in the decision.
And might I say that this -- the white student president of the class in an ethnically different school is a measure of leadership.
Leadership is an independent factor in the PAI.
It isn't -- he is not getting that point because of his race; he's getting that point because of his leadership.
That race-neutral criteria could work for anybody.
So race is an independent add-on, it is something that can be used to boost the PAI score, the PAS element in any way they like, because they say they contextualize it, and we say it's not necessary, it's not narrowly tailored, it ignores available alternatives, it treats -- gives disparate treatment to Asian Americans, because they are minorities as well, and to the extent it depends on the classroom factor there is simply no way to relate or fit what they are doing to the solution of the problem which they used as a major foundation of their proposal, which is the nondiverse classroom.
That -- certainly there is just no correspondence there.
I see my time is up, Mr. Chief Justice.
Chief Justice John G. Roberts: We will afford you rebuttal time since our questions have prevented you from reserving it.
Bert W. Rein: Thank you.
Chief Justice John G. Roberts: Mr. Garre.
ORAL ARGUMENT OF GREGORY G. GARRE ON BEHALF OF THE RESPONDENTS
Gregory G. Garre: Thank you, Mr. Chief Justice, and may it please the Court:
For two overriding reasons, the admissions plan before you is constitutional under this Court's precedents.
First, it is indistinguishable in terms of how it operates in taking race into account as only one modest factor among many for the individualized considerations of applicants in their totality from plans that this Court has upheld in Grutter and plans that this Court approved in Bakke and the Harvard plan.
Justice Sonia Sotomayor: I -- I put that in the narrow tailoring category, that it is narrowly tailored the way Grutter did, said.
Not the necessity prong and not the need prong.
Not the necessity prong.
I think most of his argument has been centered on that, so--
Gregory G. Garre: That's right, and so that's the second point I was going to make, which is that the holistic admissions process at issue here is a necessary counterpart to the State's Top 10 Percent Law and works to systematic -- to offset the systematic drawbacks of that law in achieving an interest that is indisputably compelling, the university's interest of assembling a broadly diverse student body.
Chief Justice John G. Roberts: Counsel, before -- I need to figure out exactly what these numbers mean.
Should someone who is one-quarter Hispanic check the Hispanic box or some different box?
Gregory G. Garre: Your Honor, there is a multiracial box.
Students check boxes based on their own determination.
This is true under the Common Application--
Chief Justice John G. Roberts: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I'm one-quarter percent Hispanic.
Gregory G. Garre: --Then they would check that box, Your Honor, as is true--
Chief Justice John G. Roberts: They would check that box.
What about one-eighth?
Gregory G. Garre: --Your Honor, that was -- they would make that self-determination, Your Honor.
If anyone, in any part of the application, violated some honor code then that could come out--
Chief Justice John G. Roberts: Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?
Gregory G. Garre: --I don't think -- I don't think it would, Your Honor.
I don't think that that issue would be any different than the plan upheld in Grutter or the Harvard plan or in Bakke.
Chief Justice John G. Roberts: You don't check in any way the racial identification?
Gregory G. Garre: We do not, Your Honor, and no college in America, the Ivy Leagues, the Little Ivy Leagues, that I'm aware of.
Chief Justice John G. Roberts: So how do you know you have 15 percent African American -- Hispanic or 15 percent minority?
Gregory G. Garre: Your Honor, the same way that that determination is made in any other situation I'm aware of where race is taken into account.
Chief Justice John G. Roberts: You say the same way.
What is that way?
Gregory G. Garre: The persons self-identify on that form.
Justice Antonin Scalia: Do they have to self-identify?
Gregory G. Garre: They do not, Your Honor.
Every year people do not and many of those applicants are admitted.
Justice Antonin Scalia: And how do they decide?
You know, it's -- they want not just a critical mass in the school at large, but class by class?
How do they figure out that particular classes don't have enough?
What, somebody walks in the room and looks them over to see who looks -- who looks Asian, who looks black, who looks Hispanic?
Is that how it's done?
Gregory G. Garre: No, Your Honor, and let me try to be clear on this.
The university has never asserted a compelling interest in any specific diversity in every single classroom.
It has simply looked to classroom diversity as one dimension of student body diversity.
Justice Antonin Scalia: I don't know what you are talking about.
I mean it is either a factor that is validly in this case or it isn't.
Do they look to individual classroom diversity or not?
And if so, how do they decide when classes are diverse?
Gregory G. Garre: This Court in Grutter, Your Honor, and maybe the most important thing that was said during the first 30 minutes was, when given an opportunity to challenge Grutter, I understood my friend not to ask this Court to overrule it.
This Court in Grutter recognized the obvious fact that the classroom is one of the most important environments where the educational benefits of diversity are realized, and so the University of Texas, in determining whether or not it had reached a critical mass, looked to the classroom along with--
Justice Antonin Scalia: Fine.
I'm asking how.
How did they look to the classroom?
Gregory G. Garre: --Well, Your Honor--
Justice Antonin Scalia: Did they require everybody to check a box or they have somebody figure out, oh, this person looks 1/32nd Hispanic and that's enough?
Gregory G. Garre: --They did a study, Your Honor, that took into account the same considerations that they did in discussing the enrollment categories--
Justice Antonin Scalia: What kind of a study?
What kind of a study?
Gregory G. Garre: --Well, Your Honor, it's in the Supplemental Joint Appendix.
Justice Antonin Scalia: Yes, it doesn't explain to me how they go about, classroom by classroom, deciding how many minorities there are.
Gregory G. Garre: Your Honor, there are student lists in each classroom.
The student lists--
Chief Justice John G. Roberts: There are student lists in each classroom that have race identified with the students.
Gregory G. Garre: --No, no, Your Honor.
Of course, each classroom, the university knows which students are taking its classes and one can then, if you want to gauge diversity in the classrooms, go back--
Chief Justice John G. Roberts: Oh, you go back to what they checked on the form.
Gregory G. Garre: --Your Honor, this was part of a--
Chief Justice John G. Roberts: That's a yes or no question.
You go back to what they checked on their application form in deciding whether Economics 201 has a sufficient number of African Americans or Hispanics?
Gregory G. Garre: --That is information that is available to the university, Your Honor, the race of students if they've checked it on the application.
But I do want to be clear on this classroom diversity study.
This was only one of many information points that the university looked to.
Justice Samuel Alito: Well, on the classroom diversity, how does the non-Top 10 Percent part of the plan further classroom diversity?
My understanding is that the university had over 5,000 classes that qualified as small and the total number of African Americans and Hispanics who were admitted under the part of the plan that is challenged was just a little over 200.
So how does that -- how does that -- how can that possibly do more than a tiny, tiny amount to increase classroom diversity?
Gregory G. Garre: Well, Your Honor, first I think that 200 number is erroneous.
There have been many more minority candidates--
Justice Samuel Alito: Per class?
Gregory G. Garre: --No, not -- not on a per-class basis.
Justice Samuel Alito: Individuals in class.
Gregory G. Garre: I think in looking at the classrooms, Your Honor, what the university found was shocking isolation.
Justice Samuel Alito: How many -- how many non-Top 10 Percent members of the two minorities at issue here are admitted in each class?
Gregory G. Garre: Your Honor, we didn't look specifically at that determination.
What we did -- in other words, to try to find whether there were holistic admits or percentage admits, we did conclude in 2004 -- and again this was before -- we did the classroom study before the plan at issue was adopted and at that time there were no holistic admits taking race into account.
And what we concluded was that we simply -- if you looked at African Americans, for example, in 90 percent of the classes of the most common participatory size--
Justice Samuel Alito: I really don't understand your answer.
You know the total number of, let's say, African Americans in an entering class, right?
Yes or no?
Gregory G. Garre: --Yes, Your Honor.
Justice Samuel Alito: And you know the total number who were admitted under the Top 10 Percent Plan?
Gregory G. Garre: We do, Your Honor.
But again at the time--
Justice Samuel Alito: If you subtract A from B you'll get C, right?
Gregory G. Garre: --Your Honor, at the time--
Justice Samuel Alito: And what is the value of C per class?
Gregory G. Garre: --Your Honor, I don't know the answer to that question, and let me try to explain why the university didn't look specifically to that.
Because at the time that the classroom diversity study was conducted, it was before the holistic admissions process at issue here was adopted in 2003-2004.
And so that determination wouldn't have been as important as just finding out are African Americans or Hispanics, underrepresented minorities, present at the university in such numbers that we are not experiencing racial isolation in the classroom.
Chief Justice John G. Roberts: What is that number?
What is the critical mass of African Americans and Hispanics at the university that you are working toward?
Gregory G. Garre: Your Honor, we don't have one.
And this Court in Grutter--
Chief Justice John G. Roberts: So how are we supposed to tell whether this plan is narrowly tailored to that goal?
Gregory G. Garre: --To look to the same criteria of this Court in Grutter.
This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage.
Justice Samuel Alito: Does critical mass vary from group to group?
Does it vary from State to State?
Gregory G. Garre: --It certainly is contextual.
I think it could vary, Your Honor.
I think -- let me first say that my friends have, throughout this litigation, not in this Court, asserted 20 percent as a critical mass and that's lumping together different minority groups.
Justice Samuel Alito: But could you answer my question?
What does the University of Texas -- the University of Texas think about those questions?
Is the critical mass for the University of Texas dependent on the breakdown of the population of Texas?
Gregory G. Garre: No, it's not at all.
Justice Samuel Alito: It's not.
Gregory G. Garre: It's not at all.
It's looking to the educational benefits of diversity on campus, and I think we actually agree on what that means and what Grutter said it meant in terms of--
Justice Ruth Bader Ginsburg: Mr. Garre, could you explain -- I think you were trying to before -- what seems to me the critical question in this case: Why didn't the 10 percent solution suffice?
There were a substantial number of minority members admitted as a result of the 10 percent solution.
Why wasn't that enough to achieve diversity?
Gregory G. Garre: --Let me make a couple of points, Your Honor.
First, if you just looked at the numbers -- we don't think it's the numbers, but if you looked at the numbers after 7 years, racial diversity among these groups at the University of Texas had remained stagnant or worse.
2002, African American enrollment had actually dropped to 3 percent.
That's one part of it.
The other part of it is if you look at the admissions under the top 10 percent plan, taking the top 10 percent of a racially identifiable high school may get you diversity that looks okay on paper, but it doesn't guarantee you diversity that produces educational benefits on campus.
And that's one of the considerations that the university took into account as well.
Justice Antonin Scalia: I don't understand that.
Why doesn't it?
Gregory G. Garre: Because, Your Honor, as is true for any group, and the Harvard plan that this Court approved in Bakke specifically recognized this, you would want representatives and different viewpoints from individuals within the same -- the same racial group, just as you would from individuals outside of that.
Justice Antonin Scalia: What kind of viewpoints?
I mean, are they political viewpoints?
Gregory G. Garre: Anyone's experiences, where they grew up, the situations that they -- that they experience in their lives are going to affect their viewpoints.
Justice Antonin Scalia: But this has nothing to do with racial diversity.
I mean, you're talking about something else.
Gregory G. Garre: Your Honor, I think it directly impacts the educational benefits of diversity in this sense, that the minority candidate who has shown that -- that he or she has succeeded in an integrated environment, has shown leadership, community service, the other factors that we looked at in holistic review, is precisely the kind of candidate that's going to come -- come on campus, help to break down racial barriers, work across racial lines, dispel -- stereotypes--
Justice Antonin Scalia: Also, the kind that is likely to be included within the 10 percent rule.
And, incidentally, when was the 10 percent rule adopted?
Gregory G. Garre: --1998, Your Honor.
But with respect to your factual point, that's absolutely wrong, Your Honor.
If you look at the admissions data that we cite on page 34 of our brief, it shows the breakdown of applicants under the holistic plan and the percentage plan.
And I don't think it's been seriously disputed in this case to this point that, although the percentage plan certainly helps with minority admissions, by and large, the -- the minorities who are admitted tend to come from segregated, racially-identifiable schools.
Justice Samuel Alito: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don't think I've ever seen before.
The top 10 percent plan admits lots of African Americans -- lots of Hispanics and a fair number of African Americans.
But you say, well, it's -- it's faulty, because it doesn't admit enough African Americans and Hispanics who come from privileged backgrounds.
And you specifically have the example of the child of successful professionals in Dallas.
Now, that's your argument?
If you have -- you have an applicant whose parents are -- let's say they're -- one of them is a partner in your law firm in Texas, another one is a part -- is another corporate lawyer.
They have income that puts them in the top 1 percent of earners in the country, and they have -- parents both have graduate degrees.
They deserve a leg-up against, let's say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?
Gregory G. Garre: No, Your Honor.
And let me -- let me answer the question.
First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.
Justice Samuel Alito: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.
Gregory G. Garre: Because, Your Honor, our point is, is that we want minorities from different backgrounds.
We go out of our way to recruit minorities from disadvantaged backgrounds.
Justice Anthony Kennedy: So what you're saying is that what counts is race above all.
Gregory G. Garre: No, Your Honor, what counts is different experiences--
Justice Anthony Kennedy: Well, that's the necessary -- that's the necessary response to Justice Alito's question.
Gregory G. Garre: --Well, Your Honor, what we want is different experiences that are going to -- that are going to come on campus--
Justice Anthony Kennedy: You want underprivileged of a certain race and privileged of a certain race.
So that's race.
Gregory G. Garre: --No, Your Honors, it's -- it's not race.
It's just the opposite.
I mean, in the LUAC decision, for example, this Court said that failing to take into account differences among members of the same race does a disservice--
Justice Anthony Kennedy: But the reason you're reaching for the privileged is so that members of that race who are privileged can be representative, and that's race.
Gregory G. Garre: --It's -- it's members of the same racial group, Your Honor, bringing different experiences.
And to say that -- if you took any racial group, if you had an admissions process that only tended to admit from a -- people from a particular background or perspective, you would want people from different perspectives.
Chief Justice John G. Roberts: Counsel--
Gregory G. Garre: And that's -- that's the interests that we're discussing here.
It's the interests that the Harvard plan specifically adopts and lays out--
Chief Justice John G. Roberts: --I understand my job under our precedents to determine if your use of race is narrowly tailored to a compelling interest.
The compelling interest you identify is attaining a critical mass of minority students at the University of Texas, but you won't tell me what the critical mass is.
How am I supposed to do the job that our precedents say I should do?
Gregory G. Garre: --Your Honor, what -- what this Court's precedents say is a critical mass is an environment in which students of underrepresented--
Chief Justice John G. Roberts: I know what you say, but when will we know that you've reached a critical mass?
Gregory G. Garre: --Well--
Chief Justice John G. Roberts: Grutter said there has to be a logical end point to your use of race.
What is the logical end point?
When will I know that you've reached a critical mass?
Gregory G. Garre: --Your Honor, this question, of course, implicates Grutter itself.
And, again, I understood my friend not to challenge that.
They haven't challenged that diversity is a compelling interest at all.
What -- what we look to, and we think that courts can review this determination, one, we look to feedback directly from students about racial isolation that they experience.
Do they feel like spokespersons for their race.
Chief Justice John G. Roberts: So, what, you conduct a survey and ask students if they feel racially isolated?
Gregory G. Garre: That's one of the things we looked at.
Chief Justice John G. Roberts: And that's the basis for our Constitutional determination?
Gregory G. Garre: Your Honor, that's one of the things that we looked at.
Chief Justice John G. Roberts: Okay.
What are the others?
Gregory G. Garre: Another is that we did look to enrollment data, which showed, for example, among African Americans, that African American enrollment at the University of Texas dropped to 3 percent in 2002 under the percentage plan.
Chief Justice John G. Roberts: At what level will it satisfy the critical mass?
Gregory G. Garre: Well, I think we all agree that 3 percent is not a critical mass.
It's well beyond that.
Chief Justice John G. Roberts: Yes, but at what level will it satisfy the requirement of critical mass?
Gregory G. Garre: When we have an environment in which African Americans do not--
Chief Justice John G. Roberts: When -- how am I supposed to decide whether you have an environment within particular minorities who don't feel isolated?
Gregory G. Garre: --Your Honor, part of this is a -- is a judgment that the admin -- the educators are going to make, but you would look to the same criteria--
Chief Justice John G. Roberts: So, I see -- when you tell me, that's good enough.
Gregory G. Garre: --No, Your Honor, not at all.
You would look to the criteria that we looked at, the enrollment data, the feedback from the students.
We also took into account diversity in the classroom.
We took into account the racial climate on campus.
Justice Samuel Alito: But would 3 percent be enough in New Mexico, your bordering state, where the African American population is around 2 percent?
Gregory G. Garre: Your Honor, I don't think it would.
I mean, our concept to critical mass isn't tied to demographic.
It's undisputed in this case that we are not pursuing any demographic goal.
That's on page 138 of the Joint Appendix.
All of -- I think many key facts are undisputed here.
It's undisputed that race is only a modest factor.
It's undisputed that we're taking race into account only to consider individuals in their totality.
Justice Sonia Sotomayor: --Mr. Garre, I think that the issue that my colleagues are asking is, at what point and when do we stop deferring to the University's judgment that race is still necessary?
That's the bottom line of this case.
And you're saying, and I think rightly because of our cases, that you can't set a quota, because that's what our cases say you can't do.
So if we're not going to set a quota, what do you think is the standard we apply to make a judgment?
Gregory G. Garre: I think the standard you would apply is the one set forth in Grutter, and it comes from Justice Powell's opinion in Bakke, that you would look to whether or not the University reached an environment in which members of underrepresented minorities, African Americans and Hispanics, do not feel like spokespersons for their race, members -- an environment where cross-racial understanding is promoted, an environment where the benefit -- educational benefits of diversity are realized.
And the reason why the University of Texas concluded that that environment was not met here, it laid out in several different information points that this Court can review--
Justice Antonin Scalia: But that holds for only -- only another what, 16 years, right?
Sixteen more years, and you're going to call it all off.
Gregory G. Garre: --Your Honor, we don't read Grutter as establishing that kind of time clock.
We are looking at this--
Justice Antonin Scalia: But you're appealing to Grutter, and that's what it said.
Gregory G. Garre: --Well, Your Honor, Grutter is this Court's precedence.
We're guided by it here.
At least the advocates are.
And -- and what we would look to is once -- we're looking at this every year, we're looking at it carefully.
And once we reach that point, of course, we're going to stop.
But we also take--
Justice Sonia Sotomayor: Mr.--
Justice Ruth Bader Ginsburg: Mr. Garre.
Justice Antonin Scalia: Some of the stuff that Grutter says -- some of the stuff that Grutter says you agree with, some of the stuff that it says you don't agree with.
Gregory G. Garre: --Well, I don't know that I've disagreed with anything it said.
Justice Ruth Bader Ginsburg: Mr. Garre, before your time is -- runs out, the other point that I'd like you to answer is the argument based on Parents Involved, that the gain is just too small to warrant using a racial criteria.
Gregory G. Garre: --Your Honor--
Justice Ruth Bader Ginsburg: Once you have the 10 percent, you don't need more.
So how do you answer the argument of it being too small?
Gregory G. Garre: --First I'd point to my friend's own concessions, that the consideration of race has increased racial diversity at Hispanic and helps with minority enrollment.
That's on page 138 of the Joint Appendix.
Secondly, I'd point to the fact that African American and Hispanics' admissions did increase.
African American admissions doubled from the period of 2002 to 2004.
So this has had a real important impact on diversity at the University of Texas.
Justice Samuel Alito: Well, in terms of diversity, how do you justify lumping together all Asian Americans?
Do you think -- do you have a critical mass of Filipino Americans?
Gregory G. Garre: Your Honor--
Justice Samuel Alito: --Cambodian Americans?
Gregory G. Garre: --the common form that's used has Asian American, but also, next to that, has a form that says country of origin where that can be spelled out.
Justice Samuel Alito: But do you have a critical mass as to all the subgroups that fall within this enormous group of Asian Americans?
Gregory G. Garre: Your Honor, we've looked to whether or not we have a critical mass of underrepresented minorities, which is precisely what the Grutter decision asks us to do.
I think -- if I can make a quick point on jurisdiction--
Justice Anthony Kennedy: --If I could, before we get to that.
Gregory G. Garre: --I'm sorry.
Justice Anthony Kennedy: Suppose we -- that you, in your experience identify a numerical category a numerical standard, a numerical designation for critical mass: It's X percent.
During the course of the admissions process, can the admissions officers check to see how close they are coming to this numerical--
Gregory G. Garre: No.
No, Your Honor, and we don't.
On page 389--
Justice Anthony Kennedy: --You -- you cannot do that?
Gregory G. Garre: --We -- we wouldn't be monitoring the class.
I think one of the problems--
Justice Anthony Kennedy: But isn't that what happened in Grutter; it allowed that.
Gregory G. Garre: --It did, Your Honor.
It was one of the things--
Justice Anthony Kennedy: So are you saying that Grutter is incorrect?
Gregory G. Garre: --No, Your Honor.
It was one of the things that you pointed out in your dissent.
What I'm saying is we don't have that problem, because--
Justice Anthony Kennedy: I'm -- I'm asking whether or not you could do that.
Gregory G. Garre: --I don't think so, because the Grutter majority didn't understand it to be monitoring for the purposes of reaching a specific demographic.
Chief Justice John G. Roberts: They don't -- they don't monitor, but race is the only one of your holistic factors that appears on the cover of every application, right?
Gregory G. Garre: Well, all the holistic factors are taking into account on the application, and they're listed at various points on the application.
Chief Justice John G. Roberts: I'm sorry.
The question was whether race is the only one of your holistic factors that appears on the cover of every application.
Gregory G. Garre: That -- that is true on the cover of the application.
If -- could I make one point on jurisdiction?
Chief Justice John G. Roberts: We will give you a little more time since I'm going to give your friend a little more time.
Gregory G. Garre: Thank you.
The fundamental problem with jurisdiction is this: First of all, they definitively cannot show that she was injured by any consideration of race.
That's at pages 415 and 416 of the Joint Appendix, where it makes clear that Ms. Fisher would not have been admitted to the fall 2008 class at University of Texas no matter what her race, because her--
Chief Justice John G. Roberts: Just to be clear, are you arguing that she doesn't have standing in an Article III sense?
Gregory G. Garre: --Yes, Your Honor.
And I think--
Chief Justice John G. Roberts: You address that in your brief in one footnote, right?
We have an obligation to consider it in every case, and what you gave us is one footnote in which you said it's hard to see how she could establish cognizable jurisdiction.
Gregory G. Garre: --And there is another part of that that comes from the brief in opposition, Your Honor, which goes to the relief that she has requested.
The declaratory and injunctive release -- relief that this case began with, that request has fallen out, and that's undisputed.
So the only thing that is live in this case is a request for monetary damages.
That request is on page 79 of the Joint Appendix, and it's focused exclusively on a request for the return of admissions fees.
And the reason why that is not enough to confer standing is that she would have paid the admissions fee no matter what policy the university admissions had.
Chief Justice John G. Roberts: What about -- what about our Jacksonville case that said it is an injury to be forced to be part of a process in which there is race-conscious evaluation?
Gregory G. Garre: Texas v. Lesage says that that -- that injury is not sufficient in a backward-looking case like this, where you only have monetary damages.
In Jacksonville and all the other cases, they involved forward-looking claims for declaratory injunctive release where people who were going to go out and get contracts again.
So Texas University--
Chief Justice John G. Roberts: I thought your friend -- your friend told us that these remedial issues and damages issues had been segregated out of the process and are still available for remand.
Gregory G. Garre: --Your Honor, that is not an answer to jurisdiction for this reason: It's true that it is bifurcated in the sense that we could go and prove damages, but the complaint makes no doubt that the only request for monetary damages is a request for admissions fees.
That -- it says that explicitly.
And this Court has said that relief that does not remedy the injury suffered cannot bootstrap a plaintiff into Federal court.
That is the very essence of the redressability requirement.
That comes from the Seal Co. Case.
Justice Antonin Scalia: Well, that's part of the injury she suffered.
It's -- it's not the only injury perhaps.
Bert W. Rein: It's the only--
Justice Antonin Scalia: But she -- she had to pay an admissions fee for a process in which she was not treated fairly.
Gregory G. Garre: And the reason why--
Justice Antonin Scalia: Why shouldn't she get her money back?
Bert W. Rein: --The reason why the payment of that fee doesn't redress the injury, Your Honor, is that she would have paid it even if Texas didn't consider race at all; and, therefore, the payment of the application fee back doesn't remedy the injury that she is complaining about.
Justice Stephen G. Breyer: Can I ask you to get -- if this is easy, do it; if not, don't.
I wanted to use accurate numbers, and so I discovered -- I wanted to find out how many universities actually used a Grutter-type process last year or the year before, etcetera.
And one of your amici, the admissions officers, according to our library, is the only place that has that information, though it's public, and I didn't want them to do it because they are an amici of yours.
And you are both here, both sides, so if you can agree on -- simply, roughly -- what that number is, I would like to know it; otherwise, I will -- I can use pre-Grutter numbers which are public and available.
Gregory G. Garre: --Your Honor, I don't have specific numbers.
Obviously, the Ivy Leagues and Little Ivy Leagues that have filed amicus briefs are using it.
And this Court recognized in Grutter that the best universities, many of the best universities in America, have been using these plans for 30 years or more.
Justice Antonin Scalia: Since we are asking questions just about just curiosity, I am curious to know how many -- this is a very ambitious racial program here at the University of Texas.
How many people are there in the affirmative action department of the University of Texas?
Do you have any idea?
There must be a lot of people to, you know, to monitor all these classes and do all of this assessment of race throughout the thing.
There would be a large number of people be out of a job, wouldn't we, wouldn't they, if we suddenly went to just 10 percent?
Gregory G. Garre: Your Honor, one of the things that the University of Texas does monitor is the racial climate on campus.
It does that to improve the experience for all students on campus.
Justice Antonin Scalia: How many people?
Gregory G. Garre: I don't--
Justice Antonin Scalia: You don't.
Gregory G. Garre: --have a specific number of people, Your Honor, but it is -- it is an important part of improving the educational experience for all students at the University of Texas no matter what their race.
Chief Justice John G. Roberts: Thank you, counsel.
Gregory G. Garre: Thank you, Your Honor.
Chief Justice John G. Roberts: General Verrilli.
ORAL ARGUMENT OF DONALD B. VERRILLI, JR., FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
Donald B. Verrilli Jr: Mr. Chief Justice, and may it please the Court:
In resolving this case, it is important to focus on what is, or more precisely, what is not at issue.
Petitioner is not challenging Grutter's reaffirmation of the principle of Justice Powell's opinion in Bakke that student body diversity is a compelling interest that can justify the consideration of race in university admissions.
Colleges and universities across the country have relied on that principle in shaping their admissions policies, and it is of vital interest to the United States that they continue to be able to do so.
The core of our interest is in ensuring that the Nation's universities produce graduates who are going to be effective citizens and effective leaders in an increasingly diverse society, and effective competitors in diverse global markets.
Justice Samuel Alito: Does the United States agree with Mr. Garre that African American and Hispanic applicants from privileged backgrounds deserve a preference?
Donald B. Verrilli Jr: I understand that differently, Justice Alito.
Here's how we understand what is going on with respect to the admissions process in the University of Texas, and I am going to address it directly.
I just think it needs a bit of context to do so.
The Top 10 Percent Plan certainly does produce some ethnic diversity.
Significant numbers get in.
The problem is the university can't control that diversity in the same way it can with respect to the 25 percent of the class that is admitted through the holistic process.
So my understanding of what the university here is looking to do, and what universities generally are looking to do in this circumstance, is not to grant a preference for privilege, but to make individualized decisions about applicants who will directly further the educational mission.
For example, they will look for individuals who will play against racial stereotypes just by what they bring: The African American fencer; the Hispanic who has -- who has mastered classical Greek.
They can also look for people who have a demonstrated track record of--
Justice Samuel Alito: If you have two applicants who are absolutely the same in every respect: They both come from affluent backgrounds, well-educated parents.
One falls within two of the groups that are given a preference, the other doesn't.
It's a marginal case.
It's the last -- the last position available in the class.
Under the Texas plan, one gets in; one doesn't get in.
Now, do you agree with that or not?
Donald B. Verrilli Jr: --No.
Justice Samuel Alito: Do you agree with -- do you agree that that is an incorrect statement of the facts, or do you agree that that's an incorrect understanding of the Equal Protection Clause?
Donald B. Verrilli Jr: --I think it's both.
I think the -- there is no automatic preference in Texas.
And I think this is right in the -- it says at page 398a of the Joint Appendix -- the -- they describe the process as saying,
"An applicant's race is considered only to the extent that the applicant, viewed holistically, will contribute to the broader vision of diversity desired by the university. "
Justice Antonin Scalia: Yes, but -- but the hypothetical is that the two applicants are entirely the same in all other respects.
Donald B. Verrilli Jr: Right.
But the point--
Justice Antonin Scalia: And if -- if the ability to give a racial preference means anything at all, it certainly has to mean that, in the -- in the hypothetical given -- given by Justice Alito, the minority student gets in and the other one doesn't.
Donald B. Verrilli Jr: --I disagree, Justice Scalia.
What the -- Texas, I think, has made clear -- and I think this is a common feature of these kinds of holistic approaches -- that not everyone in an underrepresented group gets a preference, gets a plus factor.
Justice Antonin Scalia: It's not a matter of not everyone; it's a matter of two who are identical in all other respects.
Donald B. Verrilli Jr: Right.
Justice Antonin Scalia: And what does the racial preference mean if it doesn't mean that in that situation the minority applicant wins and the other one loses?
Donald B. Verrilli Jr: There may not be a racial preference in that situation.
It's going to depend on a holistic, individualized consideration of the applicant.
Justice Anthony Kennedy: I don't understand this argument.
I thought that the whole point is that sometimes race has to be a tie-breaker and you are saying that it isn't.
Well, then, we should just go away.
Then -- then we should just say you can't use race, don't worry about it.
Donald B. Verrilli Jr: I don't think it's a tie-breaker.
I think it functions more subtly than that, Justice Kennedy.
Chief Justice John G. Roberts: It doesn't function more subtly in every case.
We have findings by both courts below -- and I'm reading from the court of appeals opinion at Petitioner appendix page 33.
"The district court found that race is indisputably a meaningful factor that can make a difference in the evaluation of a student's application. "
If it doesn't make a difference, then we have a clear case; they're using race in a way that doesn't make a difference.
The supposition has to be that race is a determining factor.
We've heard a lot about holistic and all that.
But unless it's a determining factor, in some cases they're using race when it doesn't serve the purpose at all.
That can't be the situation.
Donald B. Verrilli Jr: It can make a difference.
It just doesn't invariably make a difference with respect to every minority applicant, and that's the key--
Chief Justice John G. Roberts: You have to agree that it makes a difference in some cases.
Donald B. Verrilli Jr: --Yes, it does.
Chief Justice John G. Roberts: Okay.
Donald B. Verrilli Jr: But it doesn't necessarily make a difference in the situation that Justice Alito posited--
Justice Ruth Bader Ginsburg: But that's the same -- the same would be true in -- of the Bakke plan, that in some cases it's going to make a difference.
The same would be true under Grutter.
The same would be true under the policies now in existence at the military academies.
Donald B. Verrilli Jr: --That -- that is exactly right, Justice Ginsburg, but the point is that it's not a mechanical factor.
Now, with respect to the implementation of -- and the narrow tailoring inquiry, with respect to the University's implementation of this -- of its compelling interest, I do think it's clear that, although the Petitioner says she's challenging implementation, that this plan meets every requirement of Grutter and addresses the concern of Justice Kennedy that you raised in dissent in Grutter.
Whether Texas had to or not, it did address that concern.
There's no quota.
Everyone competes against everyone else.
Race is not a mechanical automatic factor.
It's an holistic individualized consideration.
And because of the way the process is structured, they do not monitor the racial composition on an ongoing basis.
Justice Sonia Sotomayor: General, I think, as I take your answer, is that the supposition of Justice Alito's question is truly impossible under this system.
There are not two identical candidates because there are not identical mechanical factors that -- except the 10 percent plan.
Under the PIA, the factors are so varied, so contextually set, that no two applicants ever could be identical in the sense that they hypothesize.
Donald B. Verrilli Jr: That's correct.
They make specific individualized judgments about each applicant--
Justice Sonia Sotomayor: Because no two people can be the same--
Chief Justice John G. Roberts: To get back to what we're talking about, you -- as I understand it, race by itself is taken into account, right?
That's the only thing on the cover of the application; they take race into account.
And the district court found -- and you're not challenging -- that race makes a difference in some cases, right?
Donald B. Verrilli Jr: --Yes.
But the key, Mr. Chief Justice, is the way it makes a difference.
And it makes a difference by casting the accomplishments of the individual applicant in a particular light, or the potential of an individual applicant in a particular light.
What -- what universities are looking for principally with respect to this individualized consideration is what is this individual going to contribute to our campus?
And race can have a bearing on that because it can have a bearing on evaluating what they've accomplished, and it can have a bearing for the reasons I tried to identify earlier to Justice Alito on what they can bring to the table, what they can bring to that freshman seminar, what they can bring to the student government, what they can bring to the campus environment--
Justice Stephen G. Breyer: All right, sir.
But it is the correct answer to Justice Alito's -- if there are ever two applicants where the GPA, the test -- the grades, the SA1, SA2, leadership, activities, awards, work experience, community service, family's economic status, school's socioeconomic status, family's responsibility, single-parent home, languages other than English spoken at home, and SAT score relative to school's average race, if you have a situation where those -- all those things were absolutely identical, than the person would be admitted on the bounds of race.
Donald B. Verrilli Jr: --Not necessarily.
Because -- because -- I'm trying to make a simple point here.
Chief Justice John G. Roberts: Gentlemen, don't write--
Donald B. Verrilli Jr: --neither might get in.
Justice Samuel Alito: Let me withdraw that hypothetical if you don't like that.
Before your time runs out, let me ask you another question.
Your ROTC argument -- you make -- you make -- you devote a lot of attention in your brief to the military.
Could you explain your ROTC argument to me?
Donald B. Verrilli Jr: Sure.
Justice Samuel Alito: Why is it important for the ROTC program for commissioned officers that Texas have this other plan on top of the top 10 percent plan?
Donald B. Verrilli Jr: Our -- our military effectiveness depends on a pipeline of well-qualified and well-prepared candidates from diverse backgrounds who are comfortable exercising leadership in diverse settings.
Justice Samuel Alito: Oh, I understand that.
And just -- I don't want to cut you off, but--
Donald B. Verrilli Jr: Right.
Justice Samuel Alito: --because the time is about to expire, so you've got a marginal candidate who wants to go to the University of Texas at Austin and is also interested in ROTC.
Maybe if race is taken into account, the candidate gets in.
Maybe if it isn't, he doesn't get in.
How does that impact the military?
The candidate will then probably go to Texas A&M or Texas Tech?
Is it your position that he will be an inferior military officer if he went to one of those schools?
Donald B. Verrilli Jr: No, Justice Alito.
Justice Samuel Alito: Then I don't understand the argument.
Donald B. Verrilli Jr: The point of educational diversity, the point of what the University of Texas is trying to achieve is to create an environment in which everyone develops an appropriate sense of citizenship, everyone develops the capacity to lead in a racially diverse society, and so it will benefit every ROTC applicant from the University of Texas.
And 43 percent of the Officer Corps comes from the ROTC.
It's a very significant source of our military leadership.
Chief Justice John G. Roberts: --General, how -- what is your view on how we tell whether -- when the University has attained critical mass?
Donald B. Verrilli Jr: I don't think critical -- I agree with my friend that critical mass is not a number.
I think it would be very ill-advised to suggest that it is numerical.
Chief Justice John G. Roberts: Okay.
I'm hearing a lot about what it's not.
I'd like to know what it is because our responsibility is to decide whether this use of race is narrowly tailored to achieving, under this University's view, critical mass.
Donald B. Verrilli Jr: May I answer, Mr. Chief Justice?
Chief Justice John G. Roberts: Oh, yes.
Donald B. Verrilli Jr: Thank you.
I think -- I don't think that this is a situation in which the Court simply affords complete deference to the University's judgment that it hasn't yet achieved the level of diversity that it needs to accomplish its educational mission.
I think that the Court ought to -- has to make its own independent judgment.
I think the way the Court would go about making that independent judgment is to look at the kind of information that the university considered.
That could be information about the composition of the class.
It could be information about classroom diversity.
It could be information about retention and graduation rates.
It could be information about -- that's specific to the university's context in history.
Is it a university that has had a history of racial incidents and trouble or not?
A series of factors.
And then what the Court's got to do is satisfy itself that the University has substantiated its conclusion based on that -- based on the information it's considered, that it needs to consider race to further advance the educational goals that Grutter has identified as a compelling interest.
And I will say, I do think, as the number of minority enrollees gets higher, the burden on the university to do that is going to get harder to meet.
But I don't think -- I don't think there is a number, and I don't think it would be prudent for this Court to suggest that there is a number, because it would raise exactly the kind of problem that I -- that I think Justice Kennedy identified in the Grutter dissent of creating hydraulic pressure towards that number.
Justice Antonin Scalia: We should probably stop calling it critical mass then, because mass, you know, assumes numbers, either in size or a certain weight.
Donald B. Verrilli Jr: I agree.
Justice Antonin Scalia: So we should stop calling it mass.
Donald B. Verrilli Jr: I agree.
Justice Antonin Scalia: Call it a cloud or something like that.
Donald B. Verrilli Jr: I agree that critical mass -- the idea of critical mass has taken on a life of its own in a way that's not helpful because it doesn't focus the inquiry where it should be.
If I may just add one word in conclusion.
Chief Justice John G. Roberts: Sure.
Donald B. Verrilli Jr: Thank you.
I think it is important, Your Honors, not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union.
That's what the University of Texas is trying to do with its admissions policy, and it should be upheld.
Chief Justice John G. Roberts: Thank you, General.
Mr. Rein, 10 minutes.
REBUTTAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER
Bert W. Rein: Thank you, Mr. Chief Justice.
That's more than I expected.
Chief Justice John G. Roberts: Just keeping the playing field level.
Bert W. Rein: Well, that's what we're seeking in this case, Mr. Chief Justice, a level playing field for Abby Fisher.
So it's most apt at this point.
There's just three things I want to touch on.
First, there's been a lot of back and forth on standing, but, as we have pointed out, that really relates to merits.
And I just want to make clear that we do not accept the premise of that footnote, that she would not have entered under any circumstances; that they've asserted that, but, in fact, she was considered for the summer program, which is--
Justice Sonia Sotomayor: Is your complaint limited to injunctive relief and the return of the $100?
As written, is that what it's limited to?
Bert W. Rein: --No, because it said, “ any and all other damages ”, at the point when we were writing it, which was--
Justice Sonia Sotomayor: In Arizonans and Alvarez we said any all -- any and other -- all damages is too speculative.
Is what you actually see what I said: injunctive relief and the return of the $100.
Bert W. Rein: --And what I'm saying is that we never had the opportunity to develop the full damages--
Justice Sonia Sotomayor: In--
Bert W. Rein: --because of--
Justice Sonia Sotomayor: --In Arizonans and Alvarez we said you can't manufacture standing after the fact.
Did you ask only for injunctive relief and the $100, specifically?
Bert W. Rein: --The only specific number in the complaint, because of the point in time when it was filed was the application fee, which we believe--
Justice Sonia Sotomayor: And you would have paid that no matter what; under any system of admission you would have paid the same $100.
Bert W. Rein: --You would have paid the fee in return for a fair processing of the application, which she did not receive, and we think that is a claim that will be sustained.
It is not tested at this point.
And the second thing is, because of the way the case was bifurcated, with the agreement of all and the district court as well, we did not develop the additional damages here.
We reserved the right to amend, and as things have progressed--
Justice Sonia Sotomayor: For what, nominal damages?
Bert W. Rein: --No--
Justice Sonia Sotomayor: And then how do you get around Arizonans?
Bert W. Rein: --Because as -- as in the BIO, what UT pointed out was there are other kinds of financial injuries which were not ascertainable at the time the complaint was filed because we were trying to put her into the university.
Justice Sonia Sotomayor: She was going to get a better job because she went to a different university?
Bert W. Rein: That's one of the things they suggested.
There are differences in cost between the -- what she paid at LSU and what she would have paid at UT.
I'm just saying, these are all reserved questions and they don't go to standing.
The Court made that clear in Bakke.
Let me go to another issue that, you know, I think I never completed my answer to Justice Breyer.
Where we stand on what you should do about Grutter is as follows.
We recognize, as in the words of -- that the Solicitor General just issued -- that there is an interest which is cognizable in diversity.
That is -- that was the root question in Grutter, could you recognize it at all.
But what we are concerned about, as you are seeing here, is universities like UT and many others have read it to be green light, use race, no end point, no discernible target, no critical mass, you know, in circumstances reduced to something that can be reviewed.
And as long as you don't cross two lines, determinative points and fixed quotas -- “ quotas ” meaning we will fill this quota exclusively with who we deem to be under-represented -- you are okay.
We don't think that's the way Grutter was intended.
Grutter was intended to say this is an area of great caution; using race itself raises all kinds of red flags, so before you use race make a determination whether really, your interest in critical mass -- that is, in the dialogue and interchange, the educational interest, is that--
Justice Sonia Sotomayor: You are not suggesting that if every minority student that got into a university got into only the physical education program; and in this particular university that -- that physical education program includes all the star athletes; so every star athlete in the school happens to be black or Hispanic or Asian or something else, but they have now reached the critical mass of 10, 15, 20 percent -- that the university in that situation couldn't use race?
Bert W. Rein: --Well, I think you are talking about--
Justice Sonia Sotomayor: In the holistic way that Grutter permits?
Bert W. Rein: --Well, if you are saying there's a -- a differentiated department of physical education, which is like a separate college, you have changed the nature of the hypothetical.
Justice Sonia Sotomayor: No, it's just that every one of their students who happens to be a minority is going to end up in that program.
You don't think the university could consider that it needs a different diversity in its other departments?
Bert W. Rein: Well, if that were the case, remember the factor that is causing it, and you are assuming, is choice.
You have a critical mass of students.
They choose to major in different things, and that's one of the problems with the classroom diversity concept.
They never asked the question why, if 40 percent of our students are minorities, are they not in the small classrooms?
Why does that happen?
Statistically you would say that's an aberration.
You might ask the question what's causing it?
Because in order to fit--
Justice Sonia Sotomayor: Aren't they saying the same thing when they say, when we are looking at the holistic measure, we are looking for that student who is a -- that minority student who is a nuclear scientist?
Bert W. Rein: --No.
Because they don't take into account your interests, they don't ask you, are you going to join ROTC, they don't ask you are you going to major -- major in physics.
And when it comes time in the UT system to allocate access to different majors, they do that in a way that is basically premised on academic index.
So they have a two-tiered admission system.
They are only here focused -- their preference goes to admission as such, it doesn't go to sorting people out by majors.
And if I might then say to Justice Breyer, I think our answer is, when we see what UT is doing, what we that -- Grutter's -- you know, it has been perceived as a green light; go ahead and use race, race which is otherwise really a highly questionable, an abominable kind of sorting out.
That unchecked use of race, which we think is -- has been spawned by misreading of Grutter, needs to be corralled.
So what we--
Justice Ruth Bader Ginsburg: Is it any more unchecked than the Harvard plan which -- that started all this off in 1978, decided by Justice Powell?
Is it any different from how race is used in our military academies?
Bert W. Rein: --Well, I mean, they are two different questions.
The Harvard plan is a very different world.
It's a plan of wholly individualized admission comparing individuals one on one, to establish the platonic ideal of the class as the educational mission.
This is not what is going on at UT.
This is not an individualized, I will look at you.
I will score you.
I will score you individually.
But as they keep saying, at the point of admission, I am not admitting people; I am admitting categories, boxes; and that relates to Justice Alito's question.
I thought your hypothetical, Justice Alito, was entirely fair, because in the way they do their system, in the PAI scoring, you can figure out that two people would have had the same PAI score but for race.
It's an add-on.
It allows them to boost the PAS component of the PAI score.
So -- it is not infrequent.
There are many, many candidates who will score the same PAI, may even have the same AI, and then you boost some of them.
Now, what UT says is, well, we don't boost all the minorities.
And that -- they stood here today, and they said in their briefs, we want to boost the ones we like.
We want those affluent minorities who we think will improve, in our view, dialogue.
That is contrary indeed to the fact that they give points in the same system for socioeconomic disadvantage.
It's at odds with itself.
But it's purely race, and it comes to the ultimate question then, which, Chief Justice, you were asking: Where is the end point?
If you have nothing to gauge the success of the program, if you can't even say at the beginning we don't have critical mass because we don't know what it is and we refuse to say what it is, there is no judicial supervision, there is no strict scrutiny and there is no end point to what they are doing.
So what we have said, and it comes right back to Justice Breyer, how would you write it, you can clarify it, you can say Grutter properly applies, requires you to do A, B, C, and -- and we've said in our brief that would be satisfactory.
But to the extent that you then have it surviving side by side, there could be enormous confusion.
Justice Stephen G. Breyer: So what you want me to do is go read back what we wrote in Grutter, go look what the underlying determinations of critical mass were there, go look exactly how it is being done in Texas -- which I have charts that help me see that -- and I will find enough of a difference that I can write some words that can be administered by 2,000 or 3,000 -- a thousand Federal judges as they try to deal with programs like this, in -- that's the point, is that right?
Bert W. Rein: Well, I'm saying if you clarify the needs and the necessity point, if you then look at some of the other deficiencies and clarify the -- the consideration of reasonably available alternatives as a necessity, if you then attribute that -- you attribute the weaknesses of the Texas program to the absence of those factors, I think you can fashion a result in this case which may or may not have to, quote, “ overrule ” Grutter.
It's really a matter, what do you -- do you want to clearly restate what it is that allows the use of this odious classification?
That's what we are talking about, it's a narrow window; and it should be stated as a narrow window.
Justice Sonia Sotomayor: So you don't want to overrule Grutter, you just want to gut it.
Bert W. Rein: Excuse me?
Justice Sonia Sotomayor: You just want to gut it.
You don't want to overrule it, but you just want to gut it.
Bert W. Rein: Well--
Justice Sonia Sotomayor: Now you want to tell universities that once you reach a certain number, then you can't use race anymore.
Bert W. Rein: --Justice Sotomayor, I don't want to gut it.
And the only way one could reach that conclusion is to assume that Grutter is an unlimited mandate without end point to just use race to your own satisfaction and to be deferred to in your use of race.
That is unacceptable.
That is the invasion of Abigail Fisher's rights to equal protection under the law.
Chief Justice John G. Roberts: Thank you, counsel, counsel.
The case is submitted.
Justice Ginsburg: In my view, the courts below adhered to this Court's path marking decisions and there is no need for a second look.
My dissenting opinion questions the -- the starting premise on which this case has proceeded.
Texas' top ten percent law requires public universities to admit any graduate of a Texas High School ranked in the top ten percent of her class.
Petitioner calls that law race-neutral and the Court accepts the characterization.
The diversity achieved by the top ten percent law, petitioner urges, is accomplished without resort to a racial criterion so the university has no constitutionally permissible basis for treating race as a relevant factor in reviewing individual admissions applications.
In truth, is the top ten percent law racially neutral in comparison to the university's explicit regard of race as one among many factors relevant to its educational mission?
Is it not blindness to race, but indeed race consciousness that drives percentage plans such as the one Texas has adopted?
But for de facto racial segregation in Texas' neighborhoods and schools, there would be no top ten percent law.
The Texas Legislature deliberately used the state's demographics primarily to achieve a measure of racial diversity in the state's public universities.
The notion that the top ten percent law is race-neutral calls to mind Professor Thomas Reed Powell's famous statement, “If you think you can think about a thing inextricably attached to something else without thinking about the thing to which it is attached, then you have a legal mind.”
Only that kind of legal mind could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious.
I have several times explained why government actors including state universities need not blind themselves to the still lingering everyday evident effects of centuries of law sanctioned inequality.
Among constitutionally permissible options, I remain convinced, those that candidly disclose what they are doing candidly disclose their consideration of race as a relevant factor are preferable to plans that conceal or obscure what drives them.
Like so many educational institutions across the nation, the University of Texas modeled its admission plan after the law school policy approved in Grutter v. Bollinger and the Harvard plan referenced as exemplary in Justice Powell's opinion in Regents of the University of California v. Bakke.
The Court rightly declines to cast off the equal protection framework settled ten years ago in Grutter.
Yet it stops short of reaching the conclusion that framework warrants.
Instead, the Court vacates the Court of Appeals' judgment and remands with the Court of Appeals to assess whether the University has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.
As I see it, the Court of Appeals has already completed that inquiry and its judgment, trained on this Court's Bakke and Grutter path markers, merits our approbation.
Chief Justice John G. Roberts: Justice Kennedy has our opinion this morning in Case 11-345, Fisher versus University of Texas.
Justice Anthony Kennedy: The University of Texas at Austin which is the principal campus which is the principal campus of the university has committed itself to increasing racial minority enrollment on campus.
The university considers race as one of the various factors in its undergraduate admissions process.
And the petitioner, who is a Caucasian, sued the university after her application was rejected and she contends the university's use of race in the admission process violated the Equal Protection Clause of the Fourteenth Amendment.
Both parties move for summary judgment, the District Court granted summary judgment to the university.
The Court of Appeals for the Fifth Circuit affirmed.
It held that courts must give substantial deference to the university.
It -- it held that deference must be given both in the definition of the compelling interest in diversity's benefits and in deciding whether the specific plan was narrowly tailored to achieve its stated goal.
And applying that standard, the Court upheld the university's admissions plan.
Now, among the Court's cases involving racial classifications in education, there are three decisions that are of particular relevance here.
These are the Regents of the University of California versus Bakke, Gratz versus Bollinger, and Grutter versus Bollinger.
In the Bakke case, the opinion refers to the concurring opinion by Justice Powell.
And we take these precedents as -- as given for the purposes of deciding today's case.
Grutter endorsed Justice Powell's conclusion in Bakke.
The conclusion was that the attainment of a diverse student body is a constitutionally permissible goal for an institution of higher education.
Grutter also made clear that racial classifications are constitutional only if they are narrowly tailored to further compelling governmental interest.
Thus, under Grutter, strict scrutiny must be applied to any admissions program that uses racial classifications or racial categories.
Grutter concluded that the decision to pursue the educational benefits that flow from student body diversity is an academic judgment to which some, but not complete, judicial deference is proper.
The Court of course should ensure that there is a reasoned, principled explanation for that academic decision and a university is not permitted to define diversity as some specified percentage of a particular group merely because of that group's race -- racial or ethnic origin.
That would amount to outright racial balancing which is patently unconstitutional.
On this point, in today's case, the District Court and the Court of Appeals were correct in finding that Grutter calls for some deference to the university's experience and expertise.
Now, once the university has established that its goal of diversity is consistent with strict scrutiny, there still must be a further judicial determination that the means chosen by the university to obtain diversity are narrowly tailored to that goal.
And on this point, the university receives no deference.
As The Court said in Grutter, it remains at all times the university's obligation to demonstrate and the judiciary's obligation to determine that the admissions processes ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race -- race or ethnicity the defining feature of his or her application.
Narrow tailoring also requires that the reviewing court verify that it is necessary for a university to use race to achieve the educational benefits of diversity, and this involves a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.
And the opinion today sets forth in more detail the strict scrutiny process that courts must undertake in these cases.
Rather than perform a searching examination that is required, however, here, the Court of Appeals held petitioner could challenge only “whether the university's decision to reintroduce race as a factor in admissions was made in good faith.”
It held that in considering that challenge, the Court would presume the university acted in good faith and placed on petitioner the burden of rebutting that presumption.
The expression of the controlling standard of strict scrutiny by the Court of Appeals in this case is at odds with Grutter's command that all racial classifications imposed by government must be analyzed by a reviewing court under strict scrutiny.
Gutter did -- Grutter did not hold that good faith would get -- would forgive an impermissible consideration of race and the higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts.
Strict scrutiny must not be strict in theory but fatal in fact, but the opposite is also true.
Strict scrutiny must not be strict in theory but feeble in fact.
In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context.
The benefits of a student body diversity that encompasses a broad array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.
The District Court and the Court of Appeals confined the strict scrutiny inquiry in too narrow a way by deferring to the university's good faith in its use of racial classification and this Court now vacates that judgment.
Fairness to the litigants and to the courts that heard the case requires that the matter be remanded so that the admissions process can be considered and judged under a correct analysis.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
Justice Scalia has filed a concurring opinion.
Justice Thomas has filed a concurring opinion.
Justice Ginsburg has filed a dissenting opinion.
Justice Kagan took no part in the consideration or decision of the case.