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Judicial Watch • Fisher v UT Austin Supreme Court Decision 981

Fisher v UT Austin Supreme Court Decision 981

Fisher v UT Austin Supreme Court Decision 981

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Date Created:June 22, 2016

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Tags:dissenting, Grutter, Asian, admissions, Diversity, hispanic, African, racial, Alito, Americans, students, decision, Austin, Fisher, Supreme, texas, American, Supreme Court, university, ICE


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Slip Opinion)
OCTOBER TERM, 2015
Syllabus
NOTE: Where feasible, syllabus (headnote) will released,
being done connection with this case, the time the opinion issued.
The syllabus constitutes part the opinion the Court but has been
prepared the Reporter Decisions for the convenience the reader.
See United States Detroit Timber Lumber Co., 200 321, 337.
SUPREME COURT THE UNITED STATES
Syllabus
FISHER UNIVERSITY TEXAS AUSTIN AL.
CERTIORARI THE UNITED STATES COURT APPEALS FOR
THE FIFTH CIRCUIT
No. 981.
Argued December 2015 Decided June 23, 2016
The University Texas Austin (University) uses undergraduate
admissions system containing two components. First, required
the State Top Ten Percent Law, offers admission any students
who graduate from Texas high school the top 10% their class. then fills the remainder its incoming freshman class, some 25%, combining applicant Academic Index the student SAT
score and high school academic performance with the applicant
Personal Achievement Index, holistic review containing numerous
factors, including race. The University adopted its current admissions process 2004, after year-long-study its admissions process undertaken the wake Grutter Bollinger, 539 306,
and Gratz Bollinger, 539 244 led conclude that its prior
race-neutral system did not reach its goal providing the educational benefits diversity its undergraduate students.
Petitioner Abigail Fisher, who was not the top 10% her high
school class, was denied admission the University 2008 freshman
class. She filed suit, alleging that the University consideration
race part its holistic-review process disadvantaged her and other Caucasian applicants, violation the Equal Protection Clause.
The District Court entered summary judgment the University favor, and the Fifth Circuit affirmed. This Court vacated the judgment, Fisher University Tex. Austin, 570 ___ (Fisher I),
and remanded the case the Court Appeals, the University
program could evaluated under the proper strict scrutiny standard. remand, the Fifth Circuit again affirmed the entry summary judgment for the University.
Held: The race-conscious admissions program use the time petitioner application lawful under the Equal Protection Clause.
FISHER UNIVERSITY TEX. AUSTIN
Syllabus
Pp. 20.
(a) Fisher sets out three controlling principles relevant assessing the constitutionality public university affirmative action program. First, university may not consider race unless the
admissions process can withstand strict scrutiny, i.e., must show
that its purpose interest both constitutionally permissible and
substantial, and that its use the classification necessary accomplish that purpose. 570 S., ___. Second, the decision
pursue the educational benefits that flow from student body diversity
is, substantial measure, academic judgment which some, but
not complete, judicial deference proper. Id., ___. Third, when
determining whether the use race narrowly tailored achieve
the university permissible goals, the school bears the burden
demonstrating that available and workable race-neutral alternatives not suffice. Id., ___. Pp.
(b) The University approach admissions gives rise unusual consequence here. The component with the largest impact petitioner chances admission was not the school consideration
race under its holistic-review process but the Top Ten Percent Plan.
Because petitioner did not challenge the percentage part the plan,
the record devoid evidence its impact diversity. Remand
for further factfinding would serve little purpose, however, because
the time petitioner application, the current plan had been effect only three years and, any event, the University lacked authority alter the percentage plan, which was mandated the Texas
Legislature. These circumstances refute any criticism that the University did not make good faith efforts comply with the law. The
University, however, does have continuing obligation satisfy the
strict scrutiny burden: periodically reassessing the admission program constitutionality, and efficacy, light the school experience and the data has gathered since adopting its admissions plan,
and tailoring its approach ensure that race plays greater role
than necessary meet its compelling interests. Pp. 11.
(c) Drawing all reasonable inferences her favor, petitioner has
not shown preponderance the evidence that she was denied
equal treatment the time her application was rejected. Pp. 19.
(1) Petitioner claims that the University has not articulated its
compelling interest with sufficient clarity because has failed
state more precisely what level minority enrollment would constitute critical mass. However, the compelling interest that justifies
consideration race college admissions not interest enrolling certain number minority students, but interest obtaining the educational benefits that flow from student body diversity.
Fisher 570 S., ___. Since the University prohibited from
Cite as: 579 ____ (2016)
Syllabus
seeking particular number quota minority students, cannot faulted for failing specify the particular level minority enrollment which believes the educational benefits diversity will obtained. the other hand, asserting interest the educational benefits diversity writ large insufficient. university goals cannot
elusory amorphous they must sufficiently measurable permit judicial scrutiny the policies adopted reach them. The record here reveals that the University articulated concrete and precise
goals e.g., ending stereotypes, promoting cross-racial understanding, preparing students for increasingly diverse workforce and
society, and cultivating leaders with legitimacy the eyes the
citizenry that mirror the compelling interest this Court has approved prior cases. also gave reasoned, principled explanation for its decision, id., ___, 39-page proposal written after
year-long study revealed that its race-neutral policies and programs
did not meet its goals. Pp. 13.
(2) Petitioner also claims that the University need not consider
race because had already achieved critical mass 2003 under
the Top Ten Percent Plan and race-neutral holistic review. The record, however, reveals that the University studied and deliberated for
months, concluding that race-neutral programs had not achieved the
University diversity goals, conclusion supported significant
statistical and anecdotal evidence. Pp. 15.
(3) Petitioner argues further that was unnecessary consider
race because such consideration had only minor impact the
number minority students the school admitted. But the record
shows that the consideration race has had meaningful, still
limited, effect freshman class diversity. That race consciousness
played role only small portion admissions decisions should hallmark narrow tailoring, not evidence unconstitutionality. 15.
(4) Finally, petitioner argues that there were numerous other
race-neutral means achieve the University goals. However,
the record reveals, none those alternatives was workable means attaining the University educational goals, the time her
application. Pp. 19.
758 633, affirmed.
KENNEDY, J., delivered the opinion the Court, which GINSBURG,
BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed dissenting
opinion. ALITO, J., filed dissenting opinion, which ROBERTS, J.,
and THOMAS, J., joined. KAGAN, J., took part the consideration
decision the case.
Cite as: 579 ____ (2016)
Opinion the Court
NOTICE: This opinion subject formal revision before publication the
preliminary print the United States Reports. Readers are requested
notify the Reporter Decisions, Supreme Court the United States, Wash
ington, 20543, any typographical other formal errors, order
that corrections may made before the preliminary print goes press.
SUPREME COURT THE UNITED STATES
_________________
No. 981
_________________
ABIGAIL NOEL FISHER, PETITIONER UNIVERSITY TEXAS AUSTIN, AL. WRIT CERTIORARI THE UNITED STATES COURT
APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2016]
JUSTICE KENNEDY delivered the opinion the Court.
The Court asked once again consider whether the
race-conscious admissions program the University
Texas lawful under the Equal Protection Clause.
The University Texas Austin (or University) relies
upon complex system admissions that has undergone
significant evolution over the past two decades. Until
1996, the University made its admissions decisions pri
marily based measure called Academic Index (or
AI), which calculated combining applicant
SAT score and academic performance high school.
assessing applicants, preference was given racial
minorities. 1996, the Court Appeals for the Fifth Circuit inval
idated this admissions system, holding that any considera
tion race college admissions violates the Equal Pro
tection Clause. See Hopwood Texas, 932, 934
935, 948.
One year later the University adopted new admissions
policy. Instead considering race, the University began
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
making admissions decisions based applicant
and his her Personal Achievement Index (PAI). The
PAI was numerical score based holistic review
application. Included the number were the applicant
essays, leadership and work experience, extracurricular
activities, community service, and other special charac
teristics that might give the admissions committee
sight into student background. Consistent with
Hopwood, race was not consideration calculating
applicant PAI.
The Texas Legislature responded Hopwood well.
enacted 588, commonly known the Top Ten Per
cent Law. Tex. Educ. Code Ann. 51.803 (West Cum.
Supp. 2015). its name suggests, the Top Ten Percent
Law guarantees college admission students who gradu
ate from Texas high school the top percent their
class. Those students may choose attend any the
public universities the State.
The University implemented the Top Ten Percent Law 1998. After first admitting any student who qualified
for admission under that law, the University filled the
remainder its incoming freshman class using combi
nation applicant and PAI scores again, without
considering race.
The University used this admissions system until 2003,
when this Court decided the companion cases Grutter
Bollinger, 539 306, and Gratz Bollinger, 539
244. Gratz, this Court struck down the University
Michigan undergraduate system admissions, which
the time allocated predetermined points racial minority
candidates. See 539 S., 255, 275 276. Grutter,
however, the Court upheld the University Michigan
Law School system holistic review system that did
not mechanically assign points but rather treated race relevant feature within the broader context candi
date application. See 539 S., 337, 343 344.
Cite as: 579 ____ (2016)
Opinion the Court
upholding this nuanced use race, Grutter implicitly
overruled Hopwood categorical prohibition. the wake Grutter, the University embarked upon
year-long study seeking ascertain whether its admis
sions policy was allowing provide the educational
benefits diverse student body all the Univer
sity undergraduate students. App. 481a 482a (affidavit Bruce Walker (Walker Aff.)); see also id.,
445a 447a. The University concluded that its admissions
policy was not providing these benefits. Supp. App. 24a
25a. change its system, the University submitted pro
posal the Board Regents that requested permission
begin taking race into consideration one the many
ways which [an] academically qualified individual
might contribute to, and benefit from, the rich, diverse,
and challenging educational environment the Univer
sity. Id., 23a. After the board approved the proposal,
the University adopted new admissions policy imple
ment it. The University has continued use that admis
sions policy this day.
Although the University new admissions policy was
direct result Grutter, not identical the policy this
Court approved that case. Instead, consistent with the
State legislative directive, the University continues fill significant majority its class through the Top Ten
Percent Plan (or Plan). Today, percent the
places the freshman class are filled through the Plan. practical matter, this percent cap, which has now
been fixed statute, means that, while the Plan contin
ues referenced Top Ten Percent Plan, stu
dent actually needs finish the top seven eight
percent his her class order admitted under
this category.
The University did adopt approach similar the one Grutter for the remaining percent the incom
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
ing class. This portion the class continues admit
ted based combination their and PAI scores.
Now, however, race given weight subfactor within
the PAI. The PAI number from the best)
that based two primary components. The first com
ponent the average score reader gives the applicant
two required essays. The second component full-file
review that results another 1-to-6 score, the Personal
Achievement Score PAS. The PAS determined
separate reader, who (1) rereads the applicant required
essays, (2) reviews any supplemental information the
applicant submits (letters recommendation, resumes,
additional optional essay, writing samples, artwork, etc.),
and (3) evaluates the applicant potential contributions
the University student body based the applicant
leadership
experience,
extracurricular
activities,
awards/honors, community service, and other special
circumstances.
Special circumstances include the socioeconomic sta
tus the applicant family, the socioeconomic status
the applicant school, the applicant family responsibili
ties, whether the applicant lives single-parent home,
the applicant SAT score relation the average SAT
score the applicant school, the language spoken the
applicant home, and, finally, the applicant race. See
App. 218a 220a, 430a.
Both the essay readers and the full-file readers who
assign applicants their PAI undergo extensive training
ensure that they are scoring applicants consistently.
Deposition Brian Breman 14, Record No. 00263, (WD Tex.), Doc. The Admissions Office
also undertakes regular reliability analyses measure
the frequency readers scoring within one point each
other. App. 474a (affidavit Gary Lavergne 8); see
also id., 253a (deposition Kedra Ishop (Ishop Dep.)).
Both the intensive training and the reliability analyses
Cite as: 579 ____ (2016)
Opinion the Court
aim ensure that similarly situated applicants are being
treated identically regardless which admissions officer
reads the file.
Once the essay and full-file readers have calculated each
applicant and PAI scores, admissions officers from
each school within the University set cutoff PAI/AI score
combination for admission, and then admit all the
applicants who are above that cutoff point. setting the
cutoff, those admissions officers only know how many
applicants received given PAI/AI score combination.
They not know what factors went into calculating those
applicants scores. The admissions officers who make the
final decision whether particular applicant will
admitted make that decision without knowing the appli
cant race. Race enters the admissions process, then,
one stage and one stage only the calculation the PAS.
Therefore, although admissions officers can consider
race positive feature minority student applica
tion, there dispute that race but factor
factor factor the holistic-review calculus. 645 Supp. 587, 608 (WD Tex. 2009). Furthermore, con
sideration race contextual and does not operate
mechanical plus factor for underrepresented minorities.
Id., 606 Plaintiffs cite evidence show racial
groups other than African-Americans and Hispanics are
excluded from benefitting from consideration race admissions. the Defendants point out, the consider
ation race, within the full context the entire applica
tion, may beneficial any Austin applicant
including whites and Asian-Americans see also Brief for
Asian American Legal Defense and Education Fund al. Amici Curiae (the contention that the University
discriminates against Asian-Americans entirely
supported evidence the record empirical data
There also dispute, however, that race, when consid
ered conjunction with other aspects applicant
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
background, can alter applicant PAS score. Thus,
race, this indirect fashion, considered with all the
other factors that make applicant and PAI
scores, can make difference whether application
accepted rejected.
Petitioner Abigail Fisher applied for admission the
University 2008 freshman class. She was not the top percent her high school class, she was evaluated
for admission through holistic, full-file review. Petition application was rejected.
Petitioner then filed suit alleging that the University
consideration race part its holistic-review process
disadvantaged her and other Caucasian applicants,
violation the Equal Protection Clause. See Const.,
Amdt. 14, (no State shall deny any person within its
jurisdiction the equal protection the laws The Dis
trict Court entered summary judgment the University
favor, and the Court Appeals affirmed.
This Court granted certiorari and vacated the judgment the Court Appeals, Fisher University Tex.
Austin, 570 ___ (2013) (Fisher because had
applied overly deferential good-faith standard
assessing the constitutionality the University pro
gram. The Court remanded the case for the Court
Appeals assess the parties claims under the correct
legal standard.
Without further remanding the District Court, the
Court Appeals again affirmed the entry summary
judgment the University favor. 758 633 (CA5
2014). This Court granted certiorari for second time,
576 ___ (2015), and now affirms.
Fisher set forth three controlling principles relevant
assessing the constitutionality public university
affirmative-action program. First, because racial charac
Cite as: 579 ____ (2016)
Opinion the Court
teristics seldom provide relevant basis for disparate
treatment, Richmond Croson Co., 488 469,
505 (1989), [r]ace may not considered [by university]
unless the admissions process can withstand strict scru
tiny, Fisher 570 S., ___ (slip op., 7). Strict scrutiny requires the university demonstrate with clarity
that its purpose interest both constitutionally per
missible and substantial, and that its use the classifica
tion necessary the accomplishment its pur
pose. Ibid.
Second, Fisher confirmed that the decision pursue
the educational benefits that flow from student body
diversity is, substantial measure, academic
judgment which some, but not complete, judicial defer
ence proper. Id., ___ (slip op, 9). university
cannot impose fixed quota otherwise define diversity some specified percentage particular group merely
because its race ethnic origin. Ibid. Once, however, university gives reasoned, principled explanation for
its decision, deference must given the University
conclusion, based its experience and expertise, that
diverse student body would serve its educational goals.
Ibid. (internal quotation marks and citation omitted).
Third, Fisher clarified that deference owed when
determining whether the use race narrowly tailored achieve the university permissible goals. Id., ___
(slip op., 10). university, Fisher explained, bears the
burden proving nonracial approach would not pro
mote its interest the educational benefits diversity
about well and tolerable administrative expense.
Id., ___ (slip op., 11) (internal quotation marks omit
ted). Though [n]arrow tailoring does not require exhaus
tion every conceivable race-neutral alternative
require university choose between maintaining
reputation for excellence [and] fulfilling commitment
provide educational opportunities members all racial
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
groups, Grutter, 539 S., 339, does impose the
university the ultimate burden demonstrating that
race-neutral alternatives that are both available and
workable not suffice. Fisher 570 S., ___ (slip
op., 11).
Fisher set forth these controlling principles, while
taking position the constitutionality the admis
sions program issue this case. The Court held only
that the District Court and the Court Appeals had
confined the strict scrutiny inquiry too narrow way deferring the University good faith its use
racial classifications. Id., ___ (slip op., 12) The
Court remanded the case, with instructions evaluate
the record under the correct standard and determine
whether the University had made showing that its plan narrowly tailored achieve the educational benefits
that flow from diversity. Id., ___ (slip op., 13).
remand, the Court Appeals determined that the pro
gram conformed with the strict scrutiny mandated
Fisher See 758 3d, 659 660. Judge Garza
dissented.
III
The University program sui generis. Unlike other
approaches college admissions considered this Court, combines holistic review with percentage plan. This
approach gave rise unusual consequence this case:
The component the University admissions policy that
had the largest impact petitioner chances admis
sion was not the school consideration race under its
holistic-review process but rather the Top Ten Percent
Plan. Because petitioner did not graduate the top
percent her high school class, she was categorically
ineligible for more than three-fourths the slots the
incoming freshman class. seems quite plausible, then, think that petitioner would have had better chance
Cite as: 579 ____ (2016)
Opinion the Court
being admitted the University the school used raceconscious holistic review select its entire incoming class, was the case Grutter.
Despite the Top Ten Percent Plan outsized effect
petitioner chances admission, she has not challenged
it. For that reason, throughout this litigation, the Top Ten
Percent Plan has been taken, somewhat artificially,
given premise.
Petitioner acceptance the Top Ten Percent Plan
complicates this Court review. particular, has led record that almost devoid information about the
students who secured admission the University through
the Plan. The Court thus cannot know how students
admitted solely based their class rank differ their
contribution diversity from students admitted through
holistic review. ordinary case, this evidentiary gap perhaps could filled remand the district court for further factfinding. When petitioner application was rejected, how
ever, the University combined percentage-plan/holistic
review approach admission had been effect for just
three years. While studies undertaken over the eight
years since then may significant value determin
ing the constitutionality the University current admis
sions policy, that evidence has little bearing whether
petitioner received equal treatment when her application
was rejected 2008. the Court were remand, there
fore, further factfinding would limited narrow
year sample, review which might yield little insight.
Furthermore, discussed above, the University lacks
any authority alter the role the Top Ten Percent Plan its admissions process. The Plan was mandated the
Texas Legislature the wake Hopwood, the Univer
sity, like petitioner this litigation, has likely taken the
Plan given since its implementation 1998. the
University had reason think that could deviate
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
from the Top Ten Percent Plan, similarly had reason keep extensive data the Plan the students admit
ted under particularly the years before Fisher
clarified the stringency the strict-scrutiny burden for
school that employs race-conscious review.
Under the circumstances this case, then, remand
would nothing more than prolong suit that has
ready persisted for eight years and cost the parties both
sides significant resources. Petitioner long since has
graduated from another college, and the University
policy and the data which first was based may
have evolved changed material ways.
The fact that this case has been litigated somewhat
artificial basis, furthermore, may limit its value for pro
spective guidance. The Texas Legislature, enacting the
Top Ten Percent Plan, cannot much criticized, for
was responding Hopwood, which the time was bind
ing law the State Texas. That legislative response,
turn, circumscribed the University discretion crafting
its admissions policy. These circumstances refute any
criticism that the University did not make good-faith
efforts comply with the law.
That does not diminish, however, the University con
tinuing obligation satisfy the burden strict scrutiny light changing circumstances. The University engages periodic reassessment the constitutionality, and
efficacy, its admissions program. See Supp. App. 32a;
App. 448a. Going forward, that assessment must
dertaken light the experience the school has accumu
lated and the data has gathered since the adoption its
admissions plan. the University examines this data, should remain
mindful that diversity takes many forms. Formalistic
racial classifications may sometimes fail capture diver
sity all its dimensions and, when used divisive
manner, could undermine the educational benefits the
Cite as: 579 ____ (2016)
Opinion the Court
University values. Through regular evaluation data
and consideration student experience, the University
must tailor its approach light changing circumstances,
ensuring that race plays greater role than necessary meet its compelling interest. The University
examination the data has acquired the years since
petitioner application, for these reasons, must proceed
with full respect for the constraints imposed the Equal
Protection Clause. The type data collected, and the
manner which considered, will have significant
bearing how the University must shape its admissions
policy satisfy strict scrutiny the years come. Here,
however, the Court necessarily limited the narrow
question before it: whether, drawing all reasonable infer
ences her favor, petitioner has shown preponder
ance the evidence that she was denied equal treatment the time her application was rejected. seeking reverse the judgment the Court
peals, petitioner makes four arguments. First, she argues
that the University has not articulated its compelling
interest with sufficient clarity. According petitioner,
the University must set forth more precisely the level
minority enrollment that would constitute critical
mass. Without clearer sense what the University
ultimate goal is, petitioner argues, reviewing court
cannot assess whether the University admissions pro
gram narrowly tailored that goal. this Court cases have made clear, however, the
compelling interest that justifies consideration race
college admissions not interest enrolling certain
number minority students. Rather, university may
institute race-conscious admissions program means obtaining the educational benefits that flow from stu
dent body diversity. Fisher 570 S., ___ (slip op.,
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court (internal quotation marks omitted); see also Grutter,
539 S., 328. this Court has said, enrolling
diverse student body promotes cross-racial understand
ing, helps break down racial stereotypes, and enables
students better understand persons different races.
Id., 330 (internal quotation marks and alteration omit
ted). Equally important, student body diversity promotes
learning outcomes, and better prepares students for
increasingly diverse workforce and society. Ibid. (inter
nal quotation marks omitted).
Increasing minority enrollment may instrumental
these educational benefits, but not, petitioner
seems suggest, goal that can should reduced
pure numbers. Indeed, since the University prohibited
from seeking particular number quota minority
students, cannot faulted for failing specify the
particular level minority enrollment which believes
the educational benefits diversity will obtained. the other hand, asserting interest the educa
tional benefits diversity writ large insufficient.
university goals cannot elusory amorphous they
must sufficiently measurable permit judicial scrutiny the policies adopted reach them.
The record reveals that first setting forth its current
admissions policy, the University articulated concrete and
precise goals. the first page its 2004 Proposal
Consider Race and Ethnicity Admissions, the University identifies the educational values seeks realize
through its admissions process: the destruction stereo
types, the promot[ion of] cross-racial understanding,
the preparation student body for increasingly
diverse workforce and society, and the cultivat[ion of]
set leaders with legitimacy the eyes the citizenry.
Supp. App. 1a; see also id., 69a; App. 314a 315a (depo
sition Bruce Walker (Walker Dep.)), 478a 479a
(Walker Aff. (setting forth the same goals). Later
Cite as: 579 ____ (2016)
Opinion the Court
the proposal, the University explains that strives
provide academic environment that offers robust
exchange ideas, exposure differing cultures, prepara
tion for the challenges increasingly diverse work
force, and acquisition competencies required future
leaders. Supp. App. 23a. All these objectives,
general matter, mirror the compelling interest this Court
has approved its prior cases.
The University has provided addition reasoned,
principled explanation for its decision pursue these
goals. Fisher supra, ___ (slip op., 9). The University 39-page proposal was written following year-long
study, which concluded that [t]he use race-neutral
policies and programs ha[d] not been successful
provid[ing] educational setting that fosters cross-racial
understanding, provid[ing] enlightened discussion and
learning, [or] prepar[ing] students function
creasingly diverse workforce and society. Supp. App. 25a;
see also App. 481a 482a (Walker Aff. 12) (describing
the thoughtful review the University undertook when
faced the important decision whether not use
race its admissions process Further support for the
University conclusion can found the depositions
and affidavits from various admissions officers, all
whom articulate the same, consistent reasoned, princi
pled explanation. See, e.g., id., 253a (Ishop Dep.),
314a 318a, 359a (Walker Dep.), 415a 416a (Defendant
Statement Facts), 478a 479a, 481a 482a (Walker Aff. 13). Petitioner contention that the University
goal was insufficiently concrete rebutted the record.
Second, petitioner argues that the University has
need consider race because had already achieved
critical mass 2003 using the Top Ten Percent Plan and
race-neutral holistic review. Brief for Petitioner 46.
Petitioner correct that university bears heavy bur
den showing that had not obtained the educational
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
benefits diversity before turned race-conscious
plan. The record reveals, however, that, the time
petitioner application, the University could not faulted this score. Before changing its policy the University
conducted months study and deliberation, including
retreats, interviews, [and] review data, App. 446a, and
concluded that [t]he use race-neutral policies and
programs ha[d] not been successful achieving sufficient
racial diversity the University, Supp. App. 25a.
stage this litigation has petitioner challenged the Uni
versity good faith conducting its studies, and the
Court properly declines consider the extrarecord mate
rials the dissent relies upon, many which are tangential this case best and none which the University has
had full opportunity respond to. See, e.g., post, (opinion ALITO, J.) (describing 2015 report regard
ing the admission applicants who are related politi
cally connected individuals
The record itself contains significant evidence, both
statistical and anecdotal, support the University
position. start, the demographic data the University
has submitted show consistent stagnation terms the
percentage minority students enrolling the University from 1996 2002. 1996, for example, 266 AfricanAmerican freshmen enrolled, total that constituted 4.1
percent the incoming class. 2003, the year Grutter
was decided, 267 African-American students enrolled
again, 4.1 percent the incoming class. The numbers for
Hispanic and Asian-American students tell similar
story. See Supp. App. 43a. Although demographics alone
are means dispositive, they have some value
gauge the University ability enroll students who can
offer underrepresented perspectives. addition this broad demographic data, the Univer
sity put forward evidence that minority students admitted
under the Hopwood regime experienced feelings loneli
Cite as: 579 ____ (2016)
Opinion the Court
ness and isolation. See, e.g., App. 317a 318a.
This anecdotal evidence is, turn, bolstered further,
more nuanced quantitative data. 2002, percent
undergraduate classes with least five students had
African-American students enrolled them, and per
cent had only one African-American student. Supp. App.
140a. other words, only percent undergraduate
classes with five more students them had more than
one African-American student enrolled. Twelve percent
these classes had Hispanic students, compared
percent 1996. Id., 74a, 140a. Though college must
continually reassess its need for race-conscious review,
here that assessment appears have been done with care,
and reasonable determination was made that the Uni
versity had not yet attained its goals.
Third, petitioner argues that considering race was not
necessary because such consideration has had only
minimal impact advancing the [University compel
ling interest. Brief for Petitioner 46; see also Tr. Oral
Arg. 23:10 12; 24:13 25:2, 25:24 26:3. Again, the record
does not support this assertion. 2003, percent the
Texas residents enrolled through holistic review were
Hispanic and 3.5 percent were African-American. Supp.
App. 157a. 2007, contrast, 16.9 percent the Texas
holistic-review freshmen were Hispanic and 6.8 percent
were African-American. Ibid. Those increases
percent and percent, respectively show that consider
ation race has had meaningful, still limited, effect the diversity the University freshman class. any event, not failure narrow tailoring for
the impact racial consideration minor. The fact
that race consciousness played role only small por
tion admissions decisions should hallmark nar
row tailoring, not evidence unconstitutionality.
Petitioner final argument that there are numerous
other available race-neutral means achieving the Uni
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
versity compelling interest. Brief for Petitioner 47.
review the record reveals, however, that, the time
petitioner application, none her proposed alternatives
was workable means for the University attain the
benefits diversity sought. For example, petitioner
suggests that the University could intensify its outreach
efforts African-American and Hispanic applicants. But
the University submitted extensive evidence the many
ways which already had intensified its outreach
efforts those students. The University has created
three new scholarship programs, opened new regional
admissions centers, increased its recruitment budget
half-a-million dollars, and organized over 1,000 recruit
ment events. Supp. App. 29a 32a; App. 450a 452a (citing
affidavit Michael Orr 20). Perhaps more signifi
cantly, the wake Hopwood, the University spent
seven years attempting achieve its compelling interest
using race-neutral holistic review. None these efforts
succeeded, and petitioner fails offer any meaningful way which the University could have improved upon them
the time her application.
Petitioner also suggests altering the weight given
academic and socioeconomic factors the University
admissions calculus. This proposal ignores the fact that
the University tried, and failed, increase diversity
through enhanced consideration socioeconomic and
other factors. And further ignores this Court prece
dent making clear that the Equal Protection Clause does
not force universities choose between diverse student
body and reputation for academic excellence. Grutter,
539 S., 339.
Petitioner final suggestion uncap the Top Ten
Percent Plan, and admit more not all the University
students through percentage plan. initial matter,
petitioner overlooks the fact that the Top Ten Percent
Plan, though facially neutral, cannot understood apart
Cite as: 579 ____ (2016)
Opinion the Court
from its basic purpose, which boost minority enroll
ment. Percentage plans are adopted with racially segre
gated neighborhoods and schools front and center stage.
Fisher 570 S., ___ (GINSBURG, J., dissenting) (slip
op., 2). race consciousness, not blindness race,
that drives such plans. Ibid. Consequently, petitioner
cannot assert simply that increasing the University
reliance percentage plan would make its admissions
policy more race neutral.
Even if, matter raw numbers, minority enroll
ment would increase under such regime, petitioner
would hard-pressed find convincing support for the
proposition that college admissions would improved
they were function class rank alone. That approach
would sacrifice all other aspects diversity pursuit
enrolling higher number minority students. system
that selected every student through class rank alone
would exclude the star athlete musician whose grades
suffered because daily practices and training. would
exclude talented young biologist who struggled main
tain above-average grades humanities classes. And
would exclude student whose freshman-year grades were
poor because family crisis but who got herself back
track her last three years school, only find herself
just outside the top decile her class.
These are but examples the general problem. Class
rank single metric, and like any single metric, will
capture certain types people and miss others. This does
not imply that students admitted through holistic review
are necessarily more capable more desirable than those
admitted through the Top Ten Percent Plan. merely
reflects the fact that privileging one characteristic above
all others does not lead diverse student body. Indeed, compel universities admit students based class
rank alone deep tension with the goal educational
diversity this Court cases have defined it. See Grut-
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
ter, supra, 340 (explaining that percentage plans may
preclude the university from conducting the individualized
assessments necessary assemble student body that
not just racially diverse, but diverse along all the qualities
valued the university 758 3d, 653 (pointing out
that the Top Ten Percent Law leaves out students who
fell outside their high school top ten percent but excelled unique ways that would enrich the diversity [the
University educational experience and leaves gap admissions process seeking create the multi
dimensional diversity that [Regents Univ. Cal.
Bakke, 438 265 (1978),] envisions its center,
the Top Ten Percent Plan blunt instrument that may
well compromise the University own definition the
diversity seeks. addition these fundamental problems, admis
sions policy that relies exclusively class rank creates
perverse incentives for applicants.
Percentage plans
encourage parents keep their children lowperforming segregated schools, and discourage students
from taking challenging classes that might lower their
grade point averages. Gratz, 539 S., 304,
(GINSBURG, J., dissenting).
For all these reasons, although may true that the
Top Ten Percent Plan some instances may provide
path out poverty for those who excel schools lacking resources, the Plan cannot serve the admissions
solution that petitioner suggests. Wherever the balance
between percentage plans and holistic review should rest, effective admissions policy cannot prescribe, realisti
cally, the exclusive use percentage plan. short, none petitioner suggested alternatives
nor other proposals considered discussed the course this litigation have been shown available and
workable means through which the University could
have met its educational goals, understood and
Cite as: 579 ____ (2016)
Opinion the Court
fined them 2008. Fisher supra, ___ (slip op., 11).
The University has thus met its burden showing that
the admissions policy used the time rejected peti
tioner application was narrowly tailored. university large part defined those intangible
qualities which are incapable objective measurement
but which make for greatness. Sweatt Painter, 339 629, 634 (1950). Considerable deference owed
university defining those intangible characteristics, like
student body diversity, that are central its identity and
educational mission. But still, remains enduring
challenge our Nation education system reconcile the
pursuit diversity with the constitutional promise
equal treatment and dignity. striking this sensitive balance, public universities,
like the States themselves, can serve laboratories for
experimentation. United States Lopez, 514 549,
581 (1995) (KENNEDY, J., concurring); see also New State
Ice Co. Liebmann, 285 262, 311 (1932) (Brandeis,
J., dissenting). The University Texas Austin has
special opportunity learn and teach. The University
now has its disposal valuable data about the manner
which different approaches admissions may foster
diversity instead dilute it. The University must continue use this data scrutinize the fairness its admis
sions program; assess whether changing demographics
have undermined the need for race-conscious policy; and identify the effects, both positive and negative, the
affirmative-action measures deems necessary.
The Court affirmance the University admissions
policy today does not necessarily mean the University may
rely that same policy without refinement. the
University ongoing obligation engage constant
deliberation and continued reflection regarding its admis
FISHER UNIVERSITY TEX. AUSTIN
Opinion the Court
sions policies.
The judgment the Court Appeals affirmed. ordered.
JUSTICE KAGAN took part the consideration
decision this case.
Cite as: 579 ____ (2016)
THOMAS, J., dissenting
SUPREME COURT THE UNITED STATES
_________________
No. 981
_________________
ABIGAIL NOEL FISHER, PETITIONER UNIVERSITY TEXAS AUSTIN, AL. WRIT CERTIORARI THE UNITED STATES COURT
APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2016]
JUSTICE THOMAS, dissenting. join JUSTICE ALITO dissent. JUSTICE ALITO explains, the Court decision today irreconcilable with
strict scrutiny, rests pernicious assumptions about
race, and departs from many our precedents. write separately reaffirm that State use race higher education admissions decisions categorically
prohibited the Equal Protection Clause. Fisher
University Tex. Austin, 570 ___, ___ (2013)
(THOMAS, J., concurring) (slip op., 1). The Constitution
abhors classifications based race because every time
the government places citizens racial registers and
makes race relevant the provision burdens benefits, demeans all. Id., ___ (slip op., (internal
quotation marks omitted). That constitutional imperative
does not change the face faddish theor[y] that
racial discrimination may produce educational benefits.
Id., ___, ___ (slip op., 13). The Court was wrong
hold otherwise Grutter Bollinger, 539 306, 343
(2003). would overrule Grutter and reverse the Fifth
Circuit judgment.
Cite as: 579 ____ (2016)
ALITO, J., dissenting
SUPREME COURT THE UNITED STATES
_________________
No. 981
_________________
ABIGAIL NOEL FISHER, PETITIONER UNIVERSITY TEXAS AUSTIN, AL. WRIT CERTIORARI THE UNITED STATES COURT
APPEALS FOR THE FIFTH CIRCUIT
[June 23, 2016]
JUSTICE ALITO, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
Something strange has happened since our prior deci
sion this case. See Fisher University Tex. Aus
tin, 570 ___ (2013) (Fisher I). that decision,
held that strict scrutiny requires the University Texas Austin (UT University) show that its use race
and ethnicity making admissions decisions serves com
pelling interests and that its plan narrowly tailored
achieve those ends. Rejecting the argument that
should defer judgment those matters, made clear that was obligated (1) identify the interests
justifying its plan with enough specificity permit
reviewing court determine whether the requirements
strict scrutiny were met, and (2) show that those
quirements were fact satisfied. remand, failed what our prior decision demanded. The University
has still not identified with any degree specificity the
interests that its use race and ethnicity supposed
serve. Its primary argument that merely invoking the
educational benefits diversity sufficient and that
need not identify any metric that would allow court
determine whether its plan needed serve, actually
serving, those interests. This nothing less than the
plea for deference that emphatically rejected our
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
prior decision. Today, however, the Court inexplicably
grants that request. the extent that has ever moved beyond plea for
deference and identified the relevant interests more
specific terms, its efforts have been shifting, unpersuasive,
and, times, less than candid. When adopted its racebased plan, said that the plan was needed promote
classroom diversity. See Supp. App. 1a, 24a 25a, 39a;
App. 316a. pointed study showing that AfricanAmerican, Hispanic, and Asian-American students were
underrepresented many classes. See Supp. App. 26a.
But has never shown that its race-conscious plan
actually ameliorates this situation. The University pre
sents evidence that its admissions officers, adminis
tering the holistic component its plan, make any effort determine whether African-American, Hispanic,
Asian-American student likely enroll classes
which minority students are underrepresented.
And
although records should permit determine with
out much difficulty whether holistic admittees are any
more likely than students admitted through the Top Ten
Percent Law, Tex. Educ. Code Ann. 51.803 (West Cum.
Supp. 2015), enroll the classes lacking racial eth
nic diversity, either has not crunched those numbers has not revealed what they show. Nor has
plained why the underrepresentation Asian-American
students many classes justifies its plan, which discrim
inates against those students. times, has claimed that its plan needed
achieve critical mass African-American and His
panic students, but has never explained what this term
means. According UT, critical mass neither some
absolute number African-American Hispanic stu
dents nor the percentage African-Americans Hispan
ics the general population the State. The term
mains undefined, but tells that will let the courts
Cite as: 579 ____ (2016)
ALITO, J., dissenting
know when the desired end has been achieved. See App.
314a 315a. This plea for deference indeed, for blind
deference the very thing that the Court rejected
Fisher has also claimed times that the race-based com
ponent its plan needed because the Top Ten Percent
Plan admits the wrong kind African-American and
Hispanic students, namely, students from poor families
who attend schools which the student body predomi
nantly African-American Hispanic. put its
brief Fisher the race-based component its admis
sions plan needed admit [t]he African-American
Hispanic child successful professionals Dallas. Brief
for Respondents, 2012, No. 345, 34.
After making this argument its first trip this
Court, apparently had second thoughts, and the
latest round briefing has attempted disavow ever
having made the argument. See Brief for Respondents Petitioner argument that interest favoring
affluent minorities fabrication see also id., 15.
But did, and the argument turns affirmative action
its head. Affirmative-action programs were created
help disadvantaged students.
Although now disowns the argument that the Top
Ten Percent Plan results the admission the wrong
kind African-American and Hispanic students, the Fifth
Circuit majority bought version that claim. the
panel majority put it, the Top Ten African-American and
Hispanic admittees cannot match the holistic AfricanAmerican and Hispanic admittees when comes rec
ords personal achievement, variety perspectives
and life experiences, and unique skills. 758 633,
653 (2014). All all, according the panel majority, the
Top Ten Percent students cannot enrich the diversity
the student body the same way the holistic admittees. Id., 654. Judge Garza put dissent, the
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
panel majority concluded that the Top Ten Percent admittees are somehow more homogenous, less dynamic, and
more undesirably stereotypical than those admitted under
holistic review. Id., 669 670 (Garza, J., dissenting).
The Fifth Circuit reached this conclusion with little
direct evidence regarding the characteristics the Top
Ten Percent and holistic admittees. Instead, the assump
tion behind the Fifth Circuit reasoning that most
the African-American and Hispanic students admitted
under the race-neutral component plan were able rank the top decile their high school classes only
because they did not have compete against white and
Asian-American students. This insulting stereotype not
supported the record. African-American and Hispanic
students admitted under the Top Ten Percent Plan receive
higher college grades than the African-American and
Hispanic students admitted under the race-conscious
program. See Supp. App. 164a 165a. should not have been necessary for grant review second time this case, and have greater desire
than the majority see the case drag on. But that need
not happen. When decided adopt its race-conscious
plan, had every reason know that its plan would have satisfy strict scrutiny and that this meant that would its burden show that the plan was narrowly tailored serve compelling interests. has failed make that
showing. all rights, judgment should entered
favor petitioner.
But the majority determined give yet another
chance, should reverse and send this case back the
District Court.
What the majority has now done
awarding victory opinion that fails
dress the important issues the case simply wrong.
Over the past years, has frequently modified its
Cite as: 579 ____ (2016)
ALITO, J., dissenting
admissions policies, and has generally employed race
and ethnicity the most aggressive manner permitted
under controlling precedent.
Before 1997, race was considered directly part the
general admissions process, and was frequently con
trolling factor. Admissions were based two criteria:
(1) the applicant Academic Index (AI), which was com
puted from standardized test scores and high school class
rank, and (2) the applicant race. 1996, the last year
this race-conscious system was place, 4.1% enrolled
freshmen were African-American, 14.7% were AsianAmerican, and 14.5% were Hispanic. Supp. App. 43a.
The Fifth Circuit decision Hopwood Texas, 932 (1996), prohibited from using race admis
sions. response Hopwood, beginning with the 1997
admissions cycle, instituted holistic review process which considered applicant well Per
sonal Achievement Index (PAI) that was intended, among
other things, increase minority enrollment. The raceneutral PAI was composite scores from two essays and personal achievement score, which turn was based holistic review applicant leadership qualities,
extracurricular activities, honors and awards, work expe
rience, community service, and special circumstances.
Special consideration was given applicants from poor
families, applicants from homes which language other
than English was customarily spoken, and applicants from
single-parent households. Because this race-neutral plan
gave preference disadvantaged students, had the
effect disproportionately benefiting minority candi
dates. 645 Supp. 587, 592 (WD Tex. 2009).
The Texas Legislature also responded Hopwood.
1997, enacted the Top Ten Percent Plan, which man
dated that admit all Texas seniors who rank the top
10% their high school classes. This facially race-neutral
law served equalize competition between students who
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
live relatively affluent areas with superior schools and
students poorer areas served schools offering fewer
opportunities for academic excellence. And benefiting
the students the latter group, this plan, like the raceneutral holistic plan already adopted UT, tended
benefit African-American and Hispanic students, who are
often trapped inferior public schools. 758 3d, 650
653.
Starting 1998, when the Top Ten Percent Plan took
effect, holistic, race-neutral AI/PAI system continued used fill the seats the entering class that were
not taken Top Ten Percent students. The AI/PAI sys
tem was also used determine program placement for
all incoming students, including the Top Ten Percent
students.
The University revised admissions process, coupled
with the operation the Top Ten Percent Law, resulted more racially diverse environment the University.
Fisher 570 S., ___ (slip op., 3). 2000,
announced that its enrollment levels for African Ameri
can and Hispanic freshmen have returned those
1996, the year before the Hopwood decision prohibited the
consideration race admissions policies. App. 393a;
see also Supp. App. 23a 24a (pre-Hopwood diversity levels
were restored 1999); App. 392a 393a The Top
Percent Law Working for Texas and has enabled
diversify enrollment Austin with talented students
who succeed And 2003, proclaimed that had
effectively compensated for the loss affirmative action.
Id., 396a; see also id., 398a Diversity efforts The
University Texas Austin have brought higher num
ber freshman minority students African Americans,
Hispanics and Asian-Americans the campus than
were enrolled 1996, the year court ruling ended the
use affirmative action the university enrollment
process 2004 the last year under the holistic, race
Cite as: 579 ____ (2016)
ALITO, J., dissenting
neutral AI/PAI system entering class was 4.5%
African-American, 17.9% Asian-American, and 16.9%
Hispanic. Supp. App. 156a. The 2004 entering class thus
had higher percentage African-Americans, AsianAmericans, and Hispanics than the class that entered
1996, when had last employed racial preferences.
Notwithstanding these lauded results, leapt the
opportunity reinsert race into the process. June 23,
2003, this Court decided Grutter Bollinger, 539
306 (2003), which upheld the University Michigan Law
School race-conscious admissions system. Grutter, the
Court warned that university contemplating the consid
eration race part its admissions process must
engage serious, good faith consideration workable
race-neutral alternatives that will achieve the diversity
the university seeks. Id., 339. Nevertheless, the
very day Grutter was handed down, president
nounced that [t]he University Texas Austin will
modify its admissions procedures light Grutter,
including implementing procedures the undergrad
uate level that combine the benefits the Top Percent
Law with affirmative action programs. App. 406a 407a
(emphasis added).1 purports have later engaged See
also Nissimov, Resume Factoring Applicants Race: Reintroduce Race-Based Criteria, Houston Chronicle, June 24, 2003, President Larry Faulkner said Monday his institution will
quickly develop race-based admissions criteria the fall that would
used for the summer and fall 2004, after being given the green light Monday Supreme Court ruling Silverstein, Hong,
Trounson, State Finds Itself Hemmed In, Times, June 24, 2003, (explaining intention, after dropping race consideration, move swiftly restore its use admissions time for the next
admissions cycle Hart, Texas Ponders Changes 10% Law, Boston
Globe, June 25, 2003, Soon after Monday ruling, University
Texas President Larry Faulkner said that the school will overhaul
procedures order allow consideration [t]he race appli
cant for students enrolling fall 2004 Ambiguity Remains; High
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
almost year deliberations, id., 482a, but there evidence that the reintroduction race into the admis
sions process was anything other than foregone conclu
sion following the president announcement.
The University plan resume race-conscious admis
sions was given formal expression June 2004
internal document entitled Proposal Consider Race and
Ethnicity Admissions (Proposal). Fisher supra,
___ (slip op., 4). The Proposal stated that needed
race-conscious admissions because had not yet achieved critical mass racial diversity. Supp. App. 25a.
support this claim, cited two pieces evidence.
First, noted that there were significant differences
between the racial and ethnic makeup the University
undergraduate population and the state population. Id., 24a. Second, the Proposal relied substantial part,
Fisher supra, ___ (slip op., 4), study sub
set undergraduate classes containing least five stu
dents, see Supp. App. 26a. The study showed that among
select classes with five more students, 52% had
African-Americans, 16% had Asian-Americans, and
12% had Hispanics. Ibid. Moreover, the study showed,
only 21% these classes had two more AfricanAmericans, 67% had two more Asian-Americans, and
70% had two more Hispanics. See ibid. Based this
study, the Proposal concluded that has not reached
critical mass the classroom level. Id., 24a. The
Proposal did not analyze the backgrounds, life experiences,
leadership qualities, awards, extracurricular activities,
community service, personal attributes, other charac
teristics the minority students who were already being
Court Leaves Quota Questions Looming, Paso Times, June 25, 2003, The University Texas Austin president, Larry Faulkner,
has already announced that new admissions policies would drafted include race factor
Cite as: 579 ____ (2016)
ALITO, J., dissenting
admitted under the holistic, race-neutral process. implement the Proposal the University included
student race component the PAI score, beginning
with applicants the fall 2004. Fisher 570 S.,
___ (slip op., 4). The University asks students clas
sify themselves from among five predefined racial catego
ries the application. Ibid. Race not assigned
explicit numerical value, but undisputed that race
meaningful factor. Ibid. decided use racial prefer
ences benefit African-American and Hispanic students
because considers those groups underrepresented
minorities. Supp. App. 25a; see also App. 445a 446a
(defining underrepresented minorities Hispanic[s]
and African Americans Even though classroom
study showed that more classes lacked Asian-American
students than lacked Hispanic students, Supp. App. 26a, deemed Asian-Americans overrepresented based
state demographics, 645 Supp. 2d, 606; see also ibid. undisputed that considers African-Americans
and Hispanics underrepresented but does not con
sider Asian-Americans underrepresented
Although claims that race but factor factor factor factor, id., 608, acknowledges that
race the only one [its] holistic factors that appears
the cover every application, Tr. Oral Arg. (Oct. 10,
2012). Because applicant race identified the
front the admissions file, reviewers are aware
throughout the evaluation. 645 Supp. 2d, 597; see
also id., 598 [A] candidate race known throughout
the application process Consideration race therefore
pervades every aspect admissions process. See
App. 219a are certainly aware the applicant race. the front page the application that being read
[and] used context with everything else that part
the applicant file This design, considers its
use racial classifications benign form social
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
engineering. Powers, Why Schools Still Need Affirmative
Action, National J., Aug. 2014, (editorial Bill
Powers, President from 2006 2015) Opponents
accuse defenders race-conscious admissions being
favor social engineering, which believe should
reply, Guilty charged
Notwithstanding the omnipresence racial classifica
tions, claims that keeps record how those
classifications affect its process. The university doesn
keep any statistics how many students are affected
the consideration race admissions decisions, and
does not know how many minority students are affected positive manner the consideration race. App.
337a. According UT, has way making these
determinations. See id., 320a 322a. says that
does not tell its admissions officers how much weight
give race. See Deposition Gary Lavergne 45,
Record No. 1:08 00263 (WD Tex.), Doc.
(Lavergne Deposition). And because the influence race always contextual, claims, cannot provide even
single example instance which race impacted
student odds admission. See App. 220a Could you
give example where race would have some impact applicant personal achievement score?
honest, not really [I]t impossible say give you example particular student because all contextual Accordingly, asserts that has idea which
students were admitted result its race-conscious
system and which students would have been admitted
under race-neutral process. thus makes effort
assess how the individual characteristics students
admitted the result racial preferences differ (or
not differ) from those students who would have been
admitted without them.
Cite as: 579 ____ (2016)
ALITO, J., dissenting race-conscious admissions program cannot satisfy
strict scrutiny. says that the program furthers its
interest the educational benefits diversity, but has
failed define that interest with any clarity demon
strate that its program narrowly tailored achieve that any other particular interest. accepting
tionales sufficient meet its burden, the majority
licenses perverse assumptions about different groups minority students the precise assumptions strict
scrutiny supposed stamp out.
The moral imperative racial neutrality the driving
force the Equal Protection Clause. Richmond
Croson Co., 488 469, 518 (1989) (KENNEDY, J., con
curring part and concurring judgment). the heart the Constitution guarantee equal protection lies the
simple command that the Government must treat citizens individuals, not simply components racial, reli
gious, sexual national class. Miller Johnson, 515 900, 911 (1995) (internal quotation marks omitted).
Race-based assignments embody stereotypes that treat
individuals the product their race, evaluating their
thoughts and efforts their very worth citizens
according criterion barred the Government
history and the Constitution. Id., 912 (internal quota
tion marks omitted). Given our constitutional commit
ment the doctrine equality, [d]istinctions between
citizens solely because their ancestry are their very
nature odious free people. Rice Cayetano, 528 495, 517 (2000) (quoting Hirabayashi United
States, 320 81, 100 (1943)).
[B]ecause racial characteristics seldom provide
relevant basis for disparate treatment, the Equal Protec
tion Clause demands that racial classifications
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
subjected the most rigid scrutiny. Fisher 570 S., ___ (slip op., (internal quotation marks and cita
tions omitted). [J]udicial review must begin from the
position that any official action that treats person dif
ferently account his race ethnic origin inherently suspect. Ibid.; see also Grutter, 539 S., 388
(KENNEDY, J., dissenting) Racial and ethnic distinctions any sort are inherently suspect and thus call for the
most exacting judicial examination Under strict scru
tiny, the use race must necessary further com
pelling governmental interest, and the means employed
must specifically and narrowly tailored accom
plish the compelling interest. Id., 327, 333 Connor,
J., for the Court).
The higher education dynamic does not change this
standard. Fisher supra, ___ (slip op., 12). Racial
discrimination [is] invidious all contexts, Edmonson
Leesville Concrete Co., 500 614, 619 (1991), and
[t]he analysis and level scrutiny applied determine
the validity racial] classification not vary simply
because the objective appears acceptable, Fisher supra, ___ (slip op., 12).
Nor does the standard review depen[d] the race those burdened benefited particular classifica
tion. Gratz Bollinger, 539 244, 270 (2003) (quot
ing Adarand Constructors, Inc. 515 200, 224
(1995)); see also Miller, supra, 904 This rule obtains
with equal force regardless the race those burdened benefited particular classification (quoting
Croson, supra, 494 (plurality opinion Connor, J.)).
Thus, any person, whatever race, has the right
demand that any governmental actor subject the Con
stitution justify any racial classification subjecting that
person unequal treatment under the strictest judicial
scrutiny. Gratz, supra, 270 (quoting Adarand, supra, 224).
Cite as: 579 ____ (2016)
ALITO, J., dissenting short, all contexts, Edmonson, supra, 619,
racial classifications are permitted only last resort,
when all else has failed, Croson, supra, 519 (opinion
KENNEDY, J.). Strict scrutiny searching examination,
and the government that bears the burden proof.
Fisher 570 S., ___ (slip op., 8). meet this
burden, the government must demonstrate with clarity
that its purpose interest both constitutionally per
missible and substantial, and that its use the classifica
tion necessary the accomplishment its pur
pose. Id., ___ (slip op., (emphasis added).
Here, has failed define its interest using
racial preferences with clarity. result, the narrow
tailoring inquiry impossible, and cannot satisfy
strict scrutiny.
When adopted its challenged policy, characterized
its compelling interest obtaining critical mass
underrepresented minorities. Id., ___ (slip op., 1).
The 2004 Proposal claimed that [t]he use race-neutral
policies and programs has not been successful achieving critical mass racial diversity. Supp. App. 25a; see
Fisher University Tex. Austin, 631 213, 226
(CA5 2011) [T]he 2004 Proposal explained that had
not yet achieved the critical mass underrepresented
minority students needed obtain the full educational
benefits diversity But this day, has not
explained anything other than the vaguest terms what means critical mass. fact, argues that
need not identify any interest more specific than securing
the educational benefits diversity. Brief for Respond
ents 15. has insisted that critical mass not absolute
number. See Tr. Oral Arg. (Oct. 10, 2012) (declaring
that not working toward any particular number
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
African-American Hispanic students); App. 315a (con
firming that has not defined critical mass number
and has not projected when will attain critical mass).
Instead, prefers deliberately malleable know
when see notion critical mass. defines critical
mass adequate representation minority students that the educational benefits that can derived
from diversity can actually happen, and declares that
will know [that] has reached critical mass when
see[s] the educational benefits happening. Id., 314a
315a. other words: Trust us.
This intentionally imprecise interest designed
insulate program from meaningful judicial review. Judge Garza explained:
[T]o meet its narrow tailoring burden, the University
must explain its goal some meaningful way. cannot undertake rigorous ends-to-means nar
row tailoring analysis when the University will not
define the ends. cannot tell whether the admis
sions program closely fits the University goal when fails objectively articulate its goal. Nor can
determine whether considering race necessary for
the University achieve critical mass, whether
there are effective race-neutral alternatives, when
has not described what critical mass requires. 758 3d, 667 (dissenting opinion).
Indeed, without knowing reasonably specific terms
what critical mass how can measured, review
ing court cannot conduct the requisite careful judicial
inquiry into whether the use race was necessary.
Fisher supra, ___ (slip op., 10). sure, agree with the majority that our prece
dents not require pinpoint interest enrol
ling certain number minority students. Ante, 11.
But order for assess whether program
Cite as: 579 ____ (2016)
ALITO, J., dissenting
narrowly tailored, the University must identify some sort concrete interest. Classifying and assigning students
according race requires more than amorphous
end justify it. Parents Involved Community Schools Seattle School Dist. No. 551 701, 735 (2007).
Because has failed explain with clarity, Fisher
supra, ___ (slip op., 7), why needs race-conscious
policy and how will know when its goals have been met,
the narrow tailoring analysis cannot meaningfully
conducted. therefore cannot satisfy strict scrutiny.
The majority acknowledges that asserting interest the educational benefits diversity writ large insuf
ficient, and that [a] university goals cannot elusory amorphous they must sufficiently measurable
permit judicial scrutiny the policies adopted reach
them. Ante, 12. According the majority, however, has articulated the following concrete and precise
goals the destruction stereotypes, the promot[ion
cross-racial understanding, the preparation student
body for increasingly diverse workforce and society,
and the cultivat[ion of] set leaders with legitimacy
the eyes the citizenry. Ibid. (internal quotation marks
omitted).
These are laudable goals, but they are not concrete
precise, and they offer limiting principle for the use
racial preferences. For instance, how will court ever
able determine whether stereotypes have been ade
quately destroyed? whether cross-racial understanding
has been adequately achieved? university can justify
racial discrimination simply having few employees
opine that racial preferences are necessary accomplish
these nebulous goals, see ante, (citing only selfserving statements from officials), then the narrow
tailoring inquiry meaningless. Courts will required defer the judgment university administrators, and
affirmative-action policies will completely insulated
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
from judicial review. accepting these amorphous goals sufficient for carry its burden, the majority violates decades prece
dent rejecting blind deference government officials
defending inherently suspect classifications. Miller,
515 S., 904 (citing Regents Univ. Cal. Bakke,
438 265, 291 (1978) (opinion Powell, J.)); see also,
e.g., Miller, supra, 922 Our presumptive skepticism
all racial classifications prohibits from accepting its face the Justice Department conclusion (citation
omitted)); Croson, 488 S., 500 [T]he mere recitation benign legitimate purpose for racial classification entitled little weight id., 501 The history racial classifications this country suggests that blind
judicial deference legislative executive pronounce
ments necessity has place equal protection analy
sis Most troublingly, the majority uncritical deference self-serving claims blatantly contradicts our deci
sion the prior iteration this very case, which
faulted the Fifth Circuit for improperly deferring the
University good faith its use racial classifications.
Fisher 570 S., ___ (slip op., 12). empha
sized just three years ago, our precedent ma[kes] clear
that for the courts, not for university administrators, ensure that admissions process narrowly tailored.
Id., ___ (slip op., 10). court cannot ensure that admissions process
narrowly tailored cannot pin down the goals that the
process designed achieve. vague policy goals are broad and imprecise that they cannot withstand strict
scrutiny. Parents Involved, supra, 785 (KENNEDY, J.,
concurring part and concurring judgment).
Although primary argument that need not
point any interest more specific than the educational
Cite as: 579 ____ (2016)
ALITO, J., dissenting
benefits diversity, Brief for Respondents 15, has
various points this litigation identified four more
specific goals: demographic parity, classroom diversity,
intraracial diversity, and avoiding racial isolation. Nei
ther nor the majority has demonstrated that any
these four goals provides sufficient basis for satisfying
strict scrutiny. And arguments the contrary
pend series invidious assumptions.
First, both and the majority cite demographic data evidence that African-American and Hispanic students
are underrepresented and that racial preferences
are necessary compensate for this underrepresentation.
See, e.g., Supp. App. 24a; ante, 14. But neither nor
the majority clear about the relationship between Texas
demographics and interest obtaining critical
mass.
Does critical mass depend the relative size
particular group the population State? For exam
ple, the critical mass African-Americans and Hispan
ics Texas, where African-Americans are about 11.8% the population and Hispanics are about 37.6%, different
from the critical mass neighboring New Mexico, where
the African-American population much smaller (about
2.1%) and the Hispanic population constitutes higher
percentage the State total (about 46.3%)? See United
States Census Bureau, QuickFacts, online https://
www.census.gov/quickfacts/table/PST045215/35,48 (all Inter
net materials last visited June 21, 2016). answer this question has veered back and forth. oral argument Fisher lawyer indicated that
critical mass could vary from group group and from
state state. See Tr. Oral Arg. (Oct. 10, 2012).
And initially justified its race-conscious plan least part the ground that significant differences between
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
the racial and ethnic makeup the University under
graduate population and the state population prevent
the University from fully achieving its mission. Supp.
App. 24a; see also id., 16a [A] critical mass Texas
necessarily larger than critical mass Michigan,
cause [a] majority the college-age population Texas African American Hispanic Fisher, 631 3d,
225 226, 236 (concluding that reliance Texas
demographics reflects measured attention the commu
nity serves Brief for Respondents No. 345,
(noting that critical mass may hinge, part, the
communities that universities serve extensive
reliance state demographics also revealed its
substantial focus increasing the representation
Hispanics, but not Asian-Americans, see, e.g., 645 Supp.
2d, 606; Supp. App. 25a; App. 445a 446a, because
Hispanics, but not Asian-Americans, are underrepresented when compared the demographics the
State.2 the other hand, counsel asserted that the criti
cal mass for the University not all dependent the
demographics Texas, and that concept [of] critical
mass isn tied demographic[s]. Tr. Oral Arg. 40,
(Oct. 10, 2012). And Fisher brief expressly agreed
that university cannot look racial demographics
and then work backward its admissions process meet target tied such demographics. Brief for Respond
ents No. 345, 31; see also Brief for Respondents
2010, 3.8% Texas population was Asian, but 18.6% enrolled, first-time freshmen 2008 were Asian-American. See
Supp. App. 156a; United States Census Bureau, QuickFacts (QuickFacts Texas), online https://www.census.gov/quickfacts/table/
PST045215/48. contrast, 37.6% Texas 2010 population identi
fied Hispanic Latino, but lower percentage 19.9%
enrolled, first-time freshmen 2008 were Hispanic. See Supp. App.
156a; QuickFacts Texas.
Cite as: 579 ____ (2016)
ALITO, J., dissenting (disclaiming any interest demographic parity). the extent that pursuing parity with Texas
demographics, that nothing more than outright racial
balancing, which this Court has time and again held
patently unconstitutional. Fisher 570 S., ___
(slip op., 9); see Grutter, 539 S., 330 [O]utright
racial balancing patently unconstitutional Free
man Pitts, 503 467, 494 (1992) Racial balance
not achieved for its own sake Croson, 488 S.,
507 (rejecting goal outright racial balancing Bakke,
438 S., 307 (opinion Powell, J.) petitioner
purpose assure within its student body some specified
percentage particular group merely because its race ethnic origin, such preferential purpose must
rejected facially invalid interest linked
nothing other than proportional representation various
races would support indefinite use racial classifica
tions, employed first obtain the appropriate mixture
racial views and then ensure that the [program] contin
ues reflect that mixture. Metro Broadcasting, Inc.
FCC, 497 547, 614 (1990) Connor, J., dissenting).
And held Fisher [r]acial balancing not
transformed from patently unconstitutional compel
ling state interest simply relabeling racial diver
sity. 570 S., ___ (slip op., (quoting Parents
Involved, 551 S., 732).
The record here demonstrates the pitfalls inherent
racial balancing. Although claims interest the
educational benefits diversity, appears have paid
little attention anything other than the number
minority students its campus and its classrooms. 2004 Proposal illustrates this approach repeatedly
citing numerical assessments the racial makeup the
student body and various classes the justification for
adopting race-conscious plan. See, e.g., Supp. App. 24a
26a, 30a. Instead focusing the benefits diversity,
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting seems have resorted simple racial census.
The majority, for its part, claims that [a]lthough
mographics alone are means dispositive, they
have some value gauge the University ability
enroll students who can offer underrepresented perspec
tives. Ante, 14. But even merely view[s] the
demographic disparity cause for concern, Brief for
United States Amicus Curiae 29, and seeking only
reduce rather than eliminate the disparity, that unde
fined goal cannot properly subjected strict scrutiny. that case, there simply way for court know
what specific demographic interest pursuing, why
race-neutral alternative could not achieve that interest,
and when that demographic goal would satisfied.
demographic discrepancy can serve gauge that
justifies the use racial discrimination, ante, 14, then
racial discrimination can justified that basis until
demographic parity reached. There logical stop
ping point short patently unconstitutional racial balanc
ing. Demographic disparities thus cannot used
satisfy strict scrutiny here. See Croson, supra, 498
(rejecting municipality assertion that its racial setaside program was justified light past discrimination
because that assertion had logical stopping point
and could continue until the percentage government
contracts awarded minorities mirrored the percentage minorities the population whole Wygant
Jackson Bd. Ed., 476 267, 275 (1986) (plurality
opinion) (rejecting the government asserted interest
because had logical stopping point
The other major explanation offered the Proposal
was its desire promote classroom diversity. The Pro
posal stressed that has not reached critical mass
the classroom level. Supp. App. 24a (emphasis added);
Cite as: 579 ____ (2016)
ALITO, J., dissenting
see also id., 1a, 25a, 39a; App. 316a. support this
proposition, relied study select classes contain
ing five more students. noted above, the study
indicated that 52% these classes had AfricanAmericans, 16% had Asian-Americans, and 12% had
Hispanics. Supp. App. 26a. The study further suggested
that only 21% these classes had two more AfricanAmericans, 67% had two more Asian-Americans, and
70% had two more Hispanics. See ibid. Based this
study, concluded that had compelling educational
interest employing racial preferences ensure that
did not have large numbers classes which there are students only single student given
derrepresented race ethnicity. Id., 25a. now equivocates, disclaiming any discrete interest
classroom diversity. See Brief for Respondents 27.
Instead, has taken the position that the lack class
room diversity was merely red flag that had not yet
fully realized the constitutionally permissible education benefits diversity. Brief for Respondents No.
345, 43. But has failed identify the level class
room diversity deems sufficient, again making impossible apply strict scrutiny.3 reviewing court can
not determine whether race-conscious program
was necessary remove the so-called red flag without
understanding the precise nature that goal knowing when the red flag will considered have
disappeared.
Putting aside effective abandonment its interest classroom diversity, the evidence cited support
that interest woefully insufficient show that goal have least two African-Americans, two Hispan
ics, and two Asian-Americans present each the relevant class
rooms, that goal literally unreachable classes five and practically unreachable many other small classes.
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
race-conscious plan was necessary achieve the educa
tional benefits diverse student body. far the
record shows, failed even scratch the surface the
available data before reflexively resorting racial prefer
ences. For instance, because knows which students
were admitted through the Top Ten Percent Plan and
which were not, well which students enrolled
which classes, would seem relatively easy determine
whether Top Ten Percent students were more less likely
than holistic admittees enroll the types classes
where diversity was lacking. But never bothered
figure this out. See ante, (acknowledging that
submitted evidence regarding how students admitted
solely based their class rank differ their contribution diversity from students admitted through holistic
view Nor there any indication that instructed
admissions officers search for African-American and
Hispanic applicants who would fill particular gaps the
classroom level. Given failure present such evi
dence, has not demonstrated that its race-conscious
policy would promote classroom diversity any better than
race-neutral options, such expanding the Top Ten
Percent Plan using race-neutral holistic admissions.
Moreover, truly seeking expose its students diversity ideas and perspectives, its policy poorly
tailored serve that end. own study which the
majority touts the best nuanced quantitative data
supporting position, ante, demonstrated that
classroom diversity was more lacking for students classi
fied Asian-American than for those classified His
panic. Supp. App. 26a. But the plan discriminates
against Asian-American students.4 apparently The majority assertion that race-based policy does not dis
criminate against Asian-American students, see ante, defies the
laws mathematics. program clearly designed increase the
Cite as: 579 ____ (2016)
ALITO, J., dissenting
unconcerned that Asian-Americans may made feel
isolated may seen spokesperson[s] their
race ethnicity. Id., 69a; see id., 25a. And unless
the University engaged unconstitutional racial bal
ancing based Texas demographics (where Hispanics
outnumber Asian-Americans), see Part supra,
seemingly views the classroom contributions AsianAmerican students less valuable than those Hispanic
students. view, apparently, Asian Americans are
not worth much Hispanics promoting cross-racial
understanding, breaking down racial stereotypes, and
enabling students better understand persons differ
ent races. Brief for Asian American Legal Foundation al. Amici Curiae (representing 117 AsianAmerican organizations). The majority opinion effectively
endorses this view, crediting reliance the class
room study proof that the University assessed its need
for racial discrimination (including racial discrimination
that undeniably harms Asian-Americans) with care.
Ante, 15.
While both the majority and the Fifth Circuit rely classroom study, see ante, 15; 758 3d, 658
659, they completely ignore its finding that Hispanics are
better represented than Asian-Americans class
rooms. fact, they act almost Asian-American
students not exist. See ante, (mentioning AsianAmericans only single time outside parentheticals,
and not the context the classroom study); 758 3d,
number African-American and Hispanic students giving them
admissions boost vis- -vis other applicants. See, e.g., Supp. App. 25a;
App. 445a 446a; cf. 645 Supp. 587, 606 (WD Tex. 2009); see also
ante, (citing increases the presence African-Americans and
Hispanics evidence that its race-based program was success
ful). Given limited number spaces, App. 250a, providing boost African-Americans and Hispanics inevitably harms students who
not receive the same boost decreasing their odds admission.
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting 658 (mentioning Asian-Americans only single time).5
Only the District Court acknowledged the impact
policy Asian-American students. But brushed aside
this impact, concluding astoundingly that can pick
and choose which racial and ethnic groups would like
favor. According the District Court, nothing Grutter
requires university give equal preference every
minority group, and allowed exercise its discre
tion determining which minority groups should benefit
from the consideration race. 645 Supp. 2d, 606.
This reasoning, which the majority implicitly accepts
blessing reliance the classroom study, places the
Court the tortuous path decid[ing] which races particular, the Fifth Circuit willful blindness Asian-American
students absolutely shameless. For instance, one the Fifth Cir
cuit primary contentions which repeatedly highlighted its
brief and argument that, given the SAT score gaps between
whites the one hand and African-Americans and Hispanics the
other, holistic admissions would approach all-white enterprise
the absence racial preferences. 758 3d, 647. making this
argument, the court below failed mention Asian-Americans. The
reason for this omission obvious: indicated the very sources that
the Fifth Circuit relied for this point, the very pages cited,
Asian-American enrollees admitted through holistic review have
consistently higher average SAT scores than white enrollees admitted
through holistic review. See UT, Office Admissions, Implementation
and Results the Texas Automatic Admissions Law (HB 588) the
University Texas Austin, Demographic Analysis Entering
Freshmen Fall 2006, pp. (rev. Dec. 2007), cited 758 3d, 647, 71; UT, Office Admissions, Implementation and Results
the Texas Automatic Admissions Law (HB 588) the University
Texas Austin, Demographic Analysis Entering Freshmen Fall
2008, pp. (Oct. 28, 2008), cited 758 3d, 647, 72. The
Fifth Circuit intentional omission Asian-Americans from its analy
sis also evident the appendices its opinion, which either omit
any reference Asian-Americans misleadingly label them
other. See id., 661. The reality how treats Asian-American
applicants apparently does not fit into the neat story the Fifth Circuit
wanted tell.
Cite as: 579 ____ (2016)
ALITO, J., dissenting
favor. Metro Broadcasting, 497 S., 632 (KENNEDY,
J., dissenting). And the Court willingness allow this
discrimination against individuals Asian descent
admissions particularly troubling, light the long
history discrimination against Asian Americans, espe
cially education. Brief for Asian American Legal
Foundation al. Amici Curiae see also, e.g., id., (discussing the placement Chinese-Americans
separate but equal public schools); Gong Lum Rice,
275 78, (1927) (holding that 9-year-old
Chinese-American girl could denied entry white
school because she was member the Mongolian
yellow race sum, [w]hile the Court repeatedly refers the preferences favoring minorities, must
emphasized that the discriminatory policies upheld today
operate exclude Asian-American students, who have
not made [UT list favored groups. Metro Broadcast
ing, supra, 632 (KENNEDY, J., dissenting).
Perhaps the majority finds discrimination against
Asian-American students benign, since Asian-Americans
are overrepresented UT. 645 Supp. 2d, 606. But
[h]istory should teach greater humility. Metro Broad
casting, 497 S., 609 Connor, J., dissenting).
[B]enign carries with independent meaning, but
reflects only acceptance the current generation conclu
sion that politically acceptable burden, imposed
particular citizens the basis race, reasonable. Id., 610. Where, here, the government has provided little
explanation for why needs discriminate based race,
there simply way determining what classifica
tions are benign and what classifications are fact
motivated illegitimate notions racial inferiority
simple racial politics. Parents Involved, 551 S., 783
(opinion KENNEDY, J.) (quoting Croson, 488 S.,
493 (plurality opinion Connor, J.)). accepting the
classroom study proof that satisfied strict scrutiny,
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
the majority move[s] from separate but equal unequal but benign. Metro Broadcasting, supra, 638
(KENNEDY, J., dissenting). addition demonstrating that discriminates
against Asian-American students, the classroom study
also exhibits use few crude, overly simplistic
racial and ethnic categories. Under the plan, both the
favored and the disfavored groups are broad and consist
students from enormously diverse backgrounds.
See
Supp. App. 30a; see also Fisher 570 S., ___ (slip
op., five predefined racial categories Because
[c]rude measures this sort threaten reduce [stu
dents] racial chits, Parents Involved, 551 S., 798
(opinion KENNEDY, J.), reliance such measures
further undermines any claim based classroom diversity statistics, see id., 723 (majority opinion) (criticizing
school policies that viewed race rough white/nonwhite black/ other terms); id., 786 (opinion KENNEDY,
J.) (faulting government for relying crude racial categories Metro Broadcasting, supra, 633,
(KENNEDY, J., dissenting) (concluding that the very
attempt define with precision beneficiary qualifying
racial characteristics repugnant our constitutional
ideals, and noting that the government make
serious effort define racial classes criteria that can administered objectively, must study precedents such the First Regulation the Reichs Citizenship Law
November 14, 1935
For example, students labeled Asian American, Supp.
App. 26a, seemingly include individuals Chinese, Jap
anese, Korean, Vietnamese, Cambodian, Hmong, Indian
and other backgrounds comprising roughly 60% the
world population, Brief for Asian American Legal Foun
dation al. Amici Curiae, 2012, No. 345,
Cite as: 579 ____ (2016)
ALITO, J., dissenting 28.6 would ludicrous suggest that all these
students have similar backgrounds and similar ideas and
experiences share. why has lumped them
gether and concluded that appropriate discriminate
against Asian-American students because they are
overrepresented the student body? has
good answer. And makes effort ensure that
has critical mass of, say, Filipino Americans Cam
bodian Americans. Tr. Oral Arg. (Oct. 10, 2012).
long there are sufficient number Asian Ameri
cans, apparently satisfied. failure provide any definition the various
racial and ethnic groups also revealing. does not
specify what means African-American, Hispanic, Asian American, Native American, White.
Supp. App. 30a. And evidently labels each student
falling into only single racial ethnic group, see, e.g.,
id., 10a 13a, 30a, 43a 44a, 71a, 156a 157a, 169a 170a,
without explaining how individuals with ancestors from
different groups are characterized. racial and
ethnic prejudice recedes, more and more students will
have parents (or grandparents) who fall into more than
one five groups. According census figures,
individuals describing themselves members multiple
races grew 32% from 2000 2010.7 recent survey
reported that 26% Hispanics and 28% AsianAmericans marry spouse different race ethnicity.8 And anybody guess whether this group also includes appli
cants full partial Arab, Armenian, Azerbaijani, Georgian, Kurd
ish, Persian, Turkish descent, whether such applicants are
considered White. Brief for Judicial Watch, Inc., al. Amici
Curiae 16. United States Census Bureau, 2010 Census Shows Multiple-Race
Population Grew Faster Than Single-Race Population (Sept. 27, 2012),
online https://www.census.gov/newsroom/releases/archives/race/cb12
182.html. Wang, Pew Research Center, Interracial Marriage: Who
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting crude classification system ill suited for the more
integrated country that are rapidly becoming.
assumes that applicant describes himself herself member particular race ethnicity, that appli
cant will have perspective that differs from that appli
cants who describe themselves members different
groups. But this necessarily so? applicant has
one grandparent, great-grandparent, great-great
grandparent who was member favored group, that
enough permit infer that this student classroom
contribution will reflect distinctive perspective set
experiences associated with that group? does not say. instead relies applicants classify themselves.
Fisher 570 S., ___ (slip op., 4). This invita
tion for applicants game the system.
Finally, seems clear that the lack classroom diversity attributable good part factors other than the
representation the favored groups the student
population. offers enormous number classes
wide range subjects, and gives undergraduates very
large measure freedom choose their classes. also
offers courses subjects that are likely have special
appeal members the minority groups given preferen
tial treatment under its challenged plan, and this
course diminishes the number other courses which
these students can enroll. See, e.g., Supp. App. 72a 73a
(indicating that the representation African-Americans
and Hispanics classrooms varies substantially from
major major). Having designed undergraduate
program that virtually ensures lack classroom diver
sity, poorly positioned argue that this very result
Marrying Out (June 12, 2015), online http://www.pewresearch.org/
fact-tank/2015/06/12/interracial-marriage-who-is-marrying-out/; Wang,
Pew Research Center, The Rise Intermarriage (Feb. 16, 2012),
online http://www.pewsocialtrends.org/2012/02/16/the-rise-of
intermarriage/.
Cite as: 579 ____ (2016)
ALITO, J., dissenting
provides justification for racial and ethnic discrimina
tion, which the Constitution rarely allows. purported interest intraracial diversity,
versity within diversity, Brief for Respondents 34, also
falls short. bottom, this argument relies the unsup
ported assumption that there something deficient
least radically different about the African-American and
Hispanic students admitted through the Top Ten Percent
Plan.
Throughout this litigation, has repeatedly shifted its
position the need for intraracial diversity. Initially,
the 2004 Proposal, did not rely this alleged need
all.
Rather, the Proposal examined two metrics
classroom diversity and demographic disparities that
concluded were relevant its ability provide [the]
benefits diversity. Brief for United States Amicus
Curiae 28. Those metrics looked only the numbers African-Americans and Hispanics, not diversity
within each group. appeal the Fifth Circuit and Fisher however, began emphasize its intraracial diversity argument. complained that the Top Ten Percent Law hinders its
efforts assemble broadly diverse class because the
minorities admitted under that law are drawn largely
from certain areas Texas where there are majorityminority schools. These students, argued, tend
come from poor, disadvantaged families, and the University would prefer system that gives substantial leeway seek broad diversity within groups underrepresented
minorities. particular, asserted need for more
African-American and Hispanic students from privileged
backgrounds. See, e.g., Brief for Respondents No.
345, (explaining that needs race-conscious
missions order admit [t]he African-American
FISHER UNIVERSITY TEX. AUSTIN
ALITO, J., dissenting
Hispanic child successful professionals Dallas ibid.
(claiming that privileged minorities have great potential
for serving bridge promoting cross-racial under
standing, well breaking down racial stereotypes
ibid. (intimating that the underprivileged minority stu
dents admitted under the Top Ten Percent Plan rein
forc[e] stereotypical assumptions Tr. Oral Arg. (Oct. 10, 2012) [A]lthough the percentage plan cer
tainly helps with minority admissions, and large, the
the minorities who are admitted tend come from segregated, racially-identifiable schools, and want
minorities from different backgrounds Thus, the Top
Ten Percent Law faulted for admitting the wrong kind African-American and Hispanic students.
The Fifth Circuit embraced this argument remand,
endorsing claimed need enroll minorities from
high-performing, majority-white high schools. 758 3d, 653. According the Fifth Circuit, these more
privileged minorities bring perspective not captured
students admitted under the Top Ten Percent Law, who
often come from highly segregated, underfunded, and
underperforming schools. Ibid. For instance, the court
determined, privileged minorities can enrich the diversity the student body distinct ways because such stu
dents have higher levels preparation and better pro
spects for admission Austin more demanding
colleges than underprivileged minorities. Id., 654; see
also Fisher, 631 3d, 240, 149 (concluding that
the Top Ten Percent Plan widens the credentials gap
between minority and non-minority students the Uni
versity, which risks driving away matriculating minor
ity students from difficult majors like business the
sciences
Remarkably, now contends that petitioner has fab
ricat[ed] the argument that seeking affluent minori
ties. Brief for Respondents That claim impossible
Cite as: 579 ____ (2016)
ALITO, J., dissenting
square with prior statements this Court the
briefing and oral argument Fisher I.9 Moreover,
though reframes its argument, continues assert
that needs affirmative action admit privileged minori
ties. For instance, brief highlights its interest
admitting [t]he black student with high grades from
Andover. Brief for Respondents 33. Similarly, oral
argument, claimed that its interests the educational benefits diversity would not met all [the]
minority students were coming from depressed socio
economic backgrounds. Tr. Oral Arg. (Dec. 2015);
see also id., 43, 45.
Ultimately, intraracial diversity rationale relies
the baseless assumption that there something wrong
with African-American and Hispanic students admitted
through the Top Ten Percent Plan, because they are from
the lower-performing, racially identifiable schools. Id.,
43; see id., (explaining that the basis for Amici supporting certainly understood arguing that
needs affirmative action admit privileged minorities. See Brief for
Six Educational Nonprofit Organizations (citing Brief for Respond
ents No. 345, 34). And amici continue press the fullthroated version the argument. See Brief for Six Educational Non
profit Organizations Intraracial diversity explodes
perceived associations between racial groups and particular demographic
characteristics, such the common stereotype Black and Latina/o
students[ that all students from these groups come from poor, innercity backgrounds. Schools like combat such stereotypes seeking admit African-American and Latino students from elevated socioeco
nomic and/or non-urban backgrounds (citat