Fisher, et al. v. State of Texas, et al.
The court issued a Revised version of this opinion on July 15, 2014
REVISED FEBRUARY 1, 2011 United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS FILED FOR THE FIFTH CIRCUIT January 18, 2011 Lyle W. Cayce Clerk No. 09-50822 ABIGAIL NOEL FISHER; RACHEL MULTER MICHALEWICZ, Plaintiffs Appellants v. UNIVERSITY OF TEXAS AT AUSTIN; DAVID B. PRYOR, Executive Vice Chancellor for Academic Affairs in His Official Capacity; WILLIAM POWERS, JR., President of the University of Texas at Austin in His Official Capacity; BOARD OF REGENTS OF THE UNIVERSITY OF TEXAS SYSTEM; R. STEVEN HICKS, as Member of the Board of Regents in His Official Capacity; WILLIAM EUGENE POWELL, as Member of the Board of Regents in His Official Capacity; JAMES R. HUFFINES, as Member of the Board of Regents in His Official Capacity; JANIECE LONGORIA, as Member of the Board of Regents in Her Official Capacity; COLLEEN MCHUGH, as Member of the Board of Regents in Her Official Capacity; ROBERT L. STILLWELL, as Member of the Board of Regents in His Official Capacity; JAMES D. DANNENBAUM, as Member of the Board of Regents in His Official Capacity; PAUL FOSTER, as Member of the Board of Regents in His Official Capacity; PRINTICE L. GARY, as Member of the Board of Regents in His Official Capacity; KEDRA ISHOP, Vice Provost and Director of Undergraduate Admissions in Her Official Capacity; FRANCISCO G. CIGARROA, M.D., Interim Chancellor of the University of Texas System in His Official Capacity, Defendants Appellees Appeal from the United States District Court for the Western District of Texas No. 09-50822 Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge: We consider a challenge to the use of race in undergraduate admissions at the University of Texas at Austin. While the University has confined its explicit use of race to the elements of a program approved by the Supreme Court in Grutter v. Bollinger,1 UT's program acts upon a university applicant pool shaped by a legislatively-mandated parallel diversity initiative that guarantees admission to Texas students in the top ten percent of their high school class. The ever-increasing number of minorities gaining admission under this Top Ten Percent Law casts a shadow on the horizon to the otherwise-plain legality of the Grutter-like admissions program, the Law's own legal footing aside. While the Law's ultimate fate is not the fare of this suit, the challenge to the Grutter plan here rests upon the intimate ties and ultimate confluence of the two initiatives. Today we affirm the constitutionality of the University's program as it existed when Appellants applied and were denied admission. Abigail Fisher and Rachel Michalewicz, both Texas residents, were denied undergraduate admission to the University of Texas at Austin for the class entering in Fall 2008. They filed this suit alleging that UT's admissions policies discriminated against them on the basis of race in violation of their right to equal protection under the Fourteenth Amendment and federal civil rights statutes.2 They sought damages as well as injunctive and declaratory relief. Proceeding with separate phases of liability and remedy, the district court, in a thoughtful opinion, found no liability and granted summary judgment to the University. 1 539 U.S. 306 (2003). Fisher v. Univ. of Tex. at Austin, 645 F. Supp. 2d 587, 590 (W.D. Tex. 2009) (citing U.S. CONST. amend. XIV, § 1, and 42 U.S.C. §§ 1981, 1983, and 2000d et seq.). 2 2 No. 09-50822 The procedural posture of this case defines the scope of our review. There are no class claims and both students deny intention to reapply to UT.3 It follows that Fisher and Michalewicz lack standing to seek injunctive or forwardlooking declaratory relief.4 This principle is rote. To obtain forward-looking equitable remedies, a plaintiff must show she faces imminent threat of future injury.5 Without that threat, these two applicants only have standing to challenge their rejection and to seek money damages for their injury.6 Our focus will be upon the process employed by UT to admit freshmen when Fisher and Michalewicz applied for the class entering Fall 2008, looking to earlier and later years only as they illuminate the rejection of these two applicants.7 Our task is burdened by the reality that we are examining a dynamic program administered by a large university subject to government oversight. Indeed, the first of UT's periodic five-year reviews was to begin in the fall of 2009, a review that must engage an array of variables, including an everpresent question of whether to adjust the percentage of students admitted under the two diversity initiatives. Like all Texas residents, Appellants could attend UT Austin as transfer students if they first enrolled in a participating UT system school and met the standards required by the Coordinated Admissions Program, discussed in greater detail below. Instead, Appellants permanently enrolled at other institutions. See Defunis v. Odegaard, 416 U.S. 312, 319 (1974) (per curiam) (dismissing for lack of standing a suit that challenged a law school admissions policy because the plaintiff would "never again be required to run the gantlet of the Law School's admissions process"). Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 20111 (1995); City of L.A. v. Lyons, 461 U.S. 95, 10510 (1983). 6 5 4 3 See Lyons, 461 U.S. at 10507. Cf. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 711 n.1 (relying on data from before the district court record closed, even after newer data had become available). 3 7 No. 09-50822 I. GRUTTER V. BOLLINGER We begin with Grutter v. Bollinger because UT's race-conscious admissions procedures were modeled after the program it approved. In rejecting constitutional challenges to the University of Michigan Law School's admissions program, Grutter held that the Equal Protection Clause did not prohibit a university's "narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."8 Mapping on Grutter, UT evaluates each application using a holistic, multi-factor approach, in which race is but one of many considerations. In granting summary judgment to UT, the district court found that "it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter," and "as long as Grutter remains good law, UT's current admissions program remains constitutional."9 Laying aside the Top Ten Percent Law, that observation is indisputably sound.10 A Grutter embraced the diversity interest articulated twenty-five years earlier by Justice Powell, who wrote separately in Regents of the University of California v. Bakke.11 This vision of diversity encompassed a broad array of qualifications and characteristics where race was a single but important 8 Grutter, 539 U.S. at 343. Fisher, 645 F. Supp. 2d at 61213; see also id. at 613 ("If the Plaintiffs are right, Grutter is wrong." (internal quotation marks omitted)). In practice, the admissions systems of Michigan Law School and UT differ because UT's automatic admission of the top ten percent of Texas high school seniors "largely dominates [its] admissions process." Fisher, 645 F. Supp. 2d at 595. We discuss the impact of the Top Ten Percent Law in greater detail below. 11 10 9 438 U.S. 265, 269 (1978) (opinion of Powell, J.). 4 No. 09-50822 element.12 The Michigan Law School designed its admissions program to achieve this broad diversity, selecting students with varied backgrounds and experiences--including varied racial backgrounds--who would respect and learn from one another.13 The Court explained: [The Law School's] policy makes clear there are many possible bases for diversity admissions, and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.14 The Law School's policy also reaffirmed its "longstanding commitment" to "one particular type of diversity, that is, racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in [the] student body in meaningful numbers."15 In an effort to ensure representation of minorities, the Law School sought to enroll a "critical mass" of minority students, which would result in increased minority engagement in the classroom and enhanced minority contributions to the character of the School. The Grutter Court endorsed this goal, holding that diversity, including seeking a critical mass of minority students, is "a compelling state interest that can justify the use of race in university admissions."16 See Grutter, 539 U.S. at 325 (citing Bakke, 438 U.S. at 315 (opinion of Powell, J.)). 13 12 Id. at 314. Id. at 338 (brackets and internal quotation marks omitted). Id. at 316 (internal quotation marks omitted). Id. at 325; see id. at 32930. 5 14 15 16 No. 09-50822 That the concept of critical mass bears a simple but deceptive label is evidenced by the division of the Justices over its meaning. In his dissent, Chief Justice Rehnquist saw critical mass as only the minimum level necessary "[t]o ensure that the minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes."17 On this view, critical mass is defined only as a proportion of the student body, and the percentage that suffices for one minority group should also suffice for another group. In contrast, Justice O'Connor, writing for the Court, explained that critical mass must be "defined by reference to the educational benefits that diversity is designed to produce."18 Her opinion recognizes that universities do more than simply impart knowledge to their students. Synthesizing, we find at least three distinct educational objectives served by the diversity she envisioned: 1. Increased Perspectives. Justice O'Connor observed that including diverse perspectives improves the quality of the educational process because "classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds."19 In this respect, Grutter echoes Justice Powell's recognition in Bakke that it is "essential to the quality of higher education" that a university be able to pursue "[t]he atmosphere of speculation, excitement and creation" that is "promoted by a diverse student body."20 Indeed, diversity often brings not just excitement, but valuable knowledge as well. "[A] student with a particular background--whether it be ethnic, geographic, culturally 17 Id. at 380 (Rehnquist, C.J., dissenting). Id. at 32930 (opinion of the Court). Id. at 330 (internal quotation marks omitted). 18 19 438 U.S. at 312 (opinion of Powell, J.) (internal quotation marks omitted). 6 20 No. 09-50822 advantaged or disadvantaged--may bring to a [university] experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity."21 2. Professionalism. The majority pointed to "numerous studies" showing that "student body diversity . . . better prepares [students] as professionals."22 The Court has "repeatedly acknowledged the overriding importance of preparing students for work and citizenship,"23 and today's students must be prepared to work within "an increasingly diverse workforce."24 Indeed, "major American businesses have made clear that the skills needed in today's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints."25 A diverse student body serves this end by "promot[ing] cross-racial understanding, help[ing] to break down racial stereotypes, and enabl[ing] students to better understand persons of different races."26 Civic Engagement. The Court recognized that "[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized."27 A diverse student body is crucial for fostering this ideal of civic engagement, because "[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified 3. 21 Id. at 314. Grutter, 539 U.S. at 330 (internal quotation marks omitted). Id. (internal quotation marks omitted). Id. (internal quotation marks omitted). Id. Id. (internal quotation marks and brackets omitted). Id. at 332. 7 22 23 24 25 26 27 No. 09-50822 individuals of every race and ethnicity."28 Maintaining a visibly open path to leadership demands that "[a]ccess to [higher] education . . . be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America."29 Each member of society "must have confidence in the openness and integrity of the educational institutions that provide this training."30 Further, efforts to educate and to encourage future leaders from previously underrepresented backgrounds will serve not only to inspire, but to actively engage with many woefully underserved communities, helping to draw them back into our national fabric. B Recognizing the pursuit of diversity, including racial diversity, to be a compelling interest in higher education, Grutter endorsed the right of public universities to increase enrollment of underrepresented minorities. Grutter also cautioned that, while it accepted diversity as a compelling interest, any sorting 28 Id. Id. at 33233. The Court further explained: 29 [E]ducation [is] pivotal to sustaining our political and cultural heritage with a fundamental role in maintaining the fabric of society. . . . [T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms that "[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective." And, "[n]owhere is the importance of such openness more acute than in the context of higher education." Id. at 33132 (final two alterations in original; citations and some internal quotation marks omitted). 30 Id. at 332. 8 No. 09-50822 of persons on the basis of race must be by measures narrowly tailored to the interest at stake. As we read the Court, a university admissions program is narrowly tailored only if it allows for individualized consideration of applicants of all races.31 Such consideration does not define an applicant by race but instead ensures that she is valued for all her unique attributes. Rather than applying fixed stereotypes of ways that race affects students' lives, an admissions policy must be "`flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.'"32 As the Supreme Court later summarized, "The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group."33 Thus, a university admissions policy is more likely to be narrowly tailored if it contemplates that a broad range of qualities and experiences beyond race will be important contributions to diversity and as such are appropriately considered in admissions decisions.34 Because a race-conscious admissions program is constitutional only if holistic, flexible, and individualized, a university may not establish a quota for minority applicants, nor may it evaluate minority applications "on separate admissions tracks."35 The "racial-set-aside program" rejected by Justice Powell in Bakke ran afoul of these related prohibitions because it reserved 16 out of 100 31 Id. at 337. Id. (quoting Bakke, 438 U.S. at 317 (opinion of Powell, J.)). 32 Parents Involved, 551 U.S. at 722; see also Grutter, 539 U.S. at 337 ("The importance of this individualized consideration in the context of a race-conscious admissions program is paramount."). 34 33 Grutter, 539 U.S. at 338. Id. at 334 (citing Bakke, 438 U.S. at 31516 (opinion of Powell, J.)). 9 35 No. 09-50822 seats for members of certain minority groups.36 A university also may not award a fixed number of bonus points to minority applicants.37 That was the lesson of Grutter's companion case, Gratz v. Bollinger, in which the Court struck down the University of Michigan's undergraduate admissions program because it automatically awarded a fixed number of admissions points to all underrepresented minority applicants, resulting in a group-based admissions boost.38 Both Bakke and Gratz firmly rejected group treatment, insisting that the focus be upon individuals and that an applicant's achievements be judged in the context of one's personal circumstances, of which race is only a part. So deployed, a white applicant raised by a single parent who did not attend high school and struggled paycheck to paycheck and a minority child of a successful cardiovascular surgeon may both claim adversity, but the personal hurdles each has cleared will not be seen to be of the same height. C Finally, Grutter requires that any race-conscious measures must have a "logical end point" and be "limited in time."39 This durational requirement can be satisfied by sunset provisions or by periodic reviews to reconsider whether there are feasible race-neutral alternatives that would achieve diversity interests "`about as well.'"40 In this respect, Grutter is best seen not as an unqualified endorsement of racial preferences, but as a transient response to 36 Id. at 322; see Bakke, 438 U.S. at 289 (opinion of Powell, J.). Gratz v. Bollinger, 539 U.S. 244, 27172 (2003). Id. Grutter, 539 U.S. at 342. Id. at 339 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n.6 10 37 38 39 40 (1986)). No. 09-50822 anemic academic diversity. As Justice O'Connor observed, "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."41 II. HISTORY OF THE UNIVERSITY'S ADMISSIONS POLICIES Justice O'Connor's vision may prove to be more aspirational than predictive. Regardless, universities will construct admissions programs wedded to their missions, which include bringing both meritorious and diverse students to campus. Each year, UT receives applications from approximately four times more students than it can enroll.42 Over the past two decades, UT has repeatedly revised its admissions procedures to reflect its calculus of educational values while navigating judicial decisions and legislative mandates. A Until 1996, UT selected students using two metrics. The first measure, still employed today, is the Academic Index ("AI"), a computation based on the student's high school class rank, standardized test scores, and the extent to which the applicant exceeded UT's required high school curriculum.43 Perceiving that AI alone would produce a class with unacceptably low diversity levels, UT considered a second element for admissions--race. These measures combined resulted in UT admitting more than 90% of applicants who were ranked in the top ten percent of their high school class.44 41 Id. at 343. Fisher, 645 F. Supp. 2d at 590. Id. at 596. 42 43 Marta Tienda et al., Closing the Gap?: Admissions & Enrollment at the Texas Public Flagships Before and After Affirmative Action 52 tbl.5 (Tex. Higher Educ. Opportunity Project Working Paper), available 11 44 No. 09-50822 There were then no clear legal limits on a university's use of race in admissions. The Supreme Court decided Bakke in 1978 but its guidance came in a fractured decision, leaving a quarter century of uncertainty.45 The record does not detail precisely how race factored in admissions decisions during this time, but it is undisputed that race was considered directly and was often a controlling factor in admission.46 Under this race-conscious admissions policy, the freshman class entering in Fall 1993 included 5,329 students, of whom 238 at http://theop.princeton.edu/workingpapers.html. Unlike the current Top Ten Percent Law, UT's earlier policies did not mandate the admission of all top ten percent students. Thus, even though a top ranking at a predominantly minority high school would contribute to a higher AI score, the AI alone could not effectively serve as a proxy for race because, on average, minorities received lower standardized test scores. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). Four Justices would have held that universities have broad authority to consider race in admissions in order to "remedy disadvantage cast on minorities by past racial prejudice." Id. at 325 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.). Four other Justices would have held that Title VI of the Civil Rights Act of 1964 bars federally funded universities from making any admissions decisions on the basis of race. Id. at 41718 (opinion of Stevens, J., joined by Burger, C.J., and Stewart and Rehnquist, JJ.). Justice Powell cast the decisive vote in a separate opinion--not joined in full by any other Justice--that invalidated the racial set-aside in the admissions program then before the Court, but reasoned that it would be constitutional for a university to consider race as one facet of diversity in a flexible review that treated each applicant as an individual. Id. at 31619 (opinion of Powell, J.). Because none of these positions carried the support of a majority of the Court, it was not completely clear which (if any) of these rationales was controlling. See Grutter, 529 U.S. at 32225 (2003) (recounting this history and the subsequent confusion among lower courts). Records do reflect that at UT's law school during this time, minority and nonminority applicants were reviewed by separate admissions committees and were subject to different grade and test-score cutoffs. See Hopwood v. Texas, 78 F.3d 932, 93538 (5th Cir. 1996). 12 46 45 No. 09-50822 were African-American (4.5% of the overall class) and 832 were Hispanic (15.6%).47 B Race-conscious admissions ended in 1996 with Hopwood v. Texas, when a panel of this court struck down the use of race-based criteria in admissions decisions at UT's law school.48 A majority of that panel held that diversity in education was not a compelling government interest,49 a conclusion the Texas Attorney General interpreted as prohibiting the use of race as a factor in admissions by any undergraduate or graduate program at Texas state universities.50 Beginning with the 1997 admissions cycle, UT deployed a Personal Achievement Index ("PAI") to be used with the Academic Index. In contrast to the mechanical formulas used to calculate the AI, the PAI was meant "to identify and reward students whose merit as applicants was not adequately reflected by Univ. of Tex. at Austin, 19981999 Statistical Handbook. Minority enrollment was fairly consistent from 1989 until 1993, with some slight decreases in 1994 and 1995. UT publishes its Statistical Handbook annually, and these handbooks are cited throughout the district court record. See Univ. of Tex. at Austin Office of Admissions, Diversity Levels of Undergraduate Classes at The University of Texas at Austin 19962002 (2003) (Dist. Ct. Dkt. No. 96, Tab 8, Ex. B), at 5, 6; Univ. of Tex. at Austin, Proposal to Consider Race and Ethnicity in Admissions (2004) (Dist. Ct. Dkt. No. 96, Tab 11, Ex. A), at 30; Univ. of Tex. at Austin Office of Admissions, 2008 Top Ten Percent Report (Dist. Ct. Dkt. No. 94, Ex. 9), at 4 [hereinafter 2008 Top Ten Percent Report]. Handbooks dating back to 1998 are available online at http://www.utexas.edu/academic/ima/stat_handbook/. 48 47 78 F.3d 932 (1996). Id. at 94448. See Tex. Att'y Gen. Letter Op. No. 97-001 (1997). 13 49 50 No. 09-50822 their class rank and test scores."51 Although facially race-neutral, the PAI was in part designed to increase minority enrollment; many of the PAI factors disproportionately affected minority applicants.52 UT also implemented other facially "race-neutral" policies that, together with the AI and PAI, remain in use today. It created targeted scholarship programs to increase its yield among minority students, expanded the quality and quantity of its outreach efforts to high schools in underrepresented areas of the state, and focused additional attention and resources on recruitment in low-performing schools.53 Despite these efforts, minority presence at UT decreased immediately. Although the 1996 admissions decisions were not affected by Hopwood, the publicity from the case impacted the number of admitted minorities who chose to enroll. In 1997, fewer minorities applied to UT than in years past. The number of African-American and Hispanic applicants dropped by nearly a quarter, while the total number of University applicants decreased by only 13%.54 This decrease in minority applicants had a corresponding effect on enrollment. Compared to 1995, African-American enrollment for 1997 dropped almost 40% (from 309 to 190 entering freshmen) while Hispanic enrollment decreased by 5% (from 935 to 892 entering freshmen). In contrast, Caucasian enrollment increased by 14%, and Asian-American enrollment increased by 20%.55 51 Fisher, 645 F. Supp. 2d at 591. Id. at 59192. Id. at 592. 52 53 Diversity Levels of Undergraduate Classes at The University of Texas at Austin 19962002 (2003) (Dist. Ct. Dkt. No. 96, Tab 8, Ex. B), at 6. 55 54 19981999 Statistical Handbook. 14 No. 09-50822 C In 1997, the Texas legislature responded to the Hopwood decision by enacting the Top Ten Percent Law, still in effect.56 The law altered UT's preexisting policy and mandated that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university. In its first year, the Top Ten Percent Law succeeded in increasing minority percentages at UT. African-American enrollment rose from 2.7% to 3.0% and Hispanic enrollment rose from 12.6% to 13.2%. However, the absolute number of minorities remained stable as a result of a smaller freshman class. Over time, both the number and percentage of enrolled Hispanics and African-Americans increased. The entering freshman class of 2004, the last admitted without the Grutter-like plan, was 4.5% African-American (309 students), 16.9% Hispanic (1,149 students), and 17.9% Asian-American (1,218 students) in a class of 6,796 students.57 The Top Ten Percent Law did not by its terms admit students on the basis of race, but underrepresented minorities were its announced target and their admission a large, if not primary, purpose. In 2004, among freshmen who were Texas residents, 77% of the enrolled African-American students and 78% of the Hispanic students had been admitted under the Top Ten Percent Law, compared to 62% of Caucasian students.58 These numbers highlight the contribution of the Top Ten Percent Law to increasing minority enrollment, but they also reflect a TEX. EDUC. CODE § 51.803 (1997). The Top Ten Percent Law was amended, during the course of this litigation, to cap the number of students guaranteed admission at UT Austin to 75% of the seats available to Texas residents. Id. § 51.803(a-1) (2010). The cap is effective starting with admissions to the Fall 2011 entering class and is currently scheduled to end with admissions to the Fall 2015 entering class. 57 56 2008 Top Ten Percent Report at 6 tbl.1. Id. at 8; see also Fisher, 645 F. Supp. 2d at 593 (reporting statistics for total admitted applicants, both Texas and non-Texas residents). 15 58 No. 09-50822 trade-off implicit in the Law: the increase rested heavily on the pass from standardized testing offered by the Top Ten Percent Law. After implementation of the Law, the likelihood of acceptance for African-American and Hispanic students in the second decile of their high school class, who were without the benefits of the pass from standardized testing, declined. Meanwhile, the acceptance probability of similarly situated Caucasian students increased.59 D Hopwood's prohibitions ended after the 2004 admissions cycle with the Supreme Court's 2003 decision in Grutter.60 In August 2003, the University of Texas Board of Regents authorized the institutions within the University of Texas system to examine "whether to consider an applicant's race and ethnicity" in admissions "in accordance with the standards enunciated in" Grutter.61 As part of its examination, UT commissioned two studies to explore whether the University was enrolling a critical mass of underrepresented minorities. The first study examined minority representation in undergraduate classes, focusing on classes of "participatory size," which it defined as between 5 and 24 students. UT analyzed these classes, which included most of the undergraduate courses, because they offered the best opportunity for robust classroom discussion, rich soil for diverse interactions. According to the study, 90% of these smaller classes in Fall 2002 had either one or zero African-American students, 46% had one or zero Asian-American students, and 59 Tienda et al., supra note 44, at 52 tbl.5. 539 U.S. 306 (2003). 60 Minutes of the Board of Regents of the University of Texas at Austin, Meeting No. 969, Aug. 67, 2003 (Dist. Ct. Dkt. No. 94, Ex. 19, Tab A), at 4. 16 61 No. 09-50822 43% had one or zero Hispanic students.62 A later retabulation, which excluded the very smallest of these classes and considered only classes with 10 to 24 students, found that 89% of those classes had either one or zero African-American students, 41% had one or zero Asian-American students, and 37% had either one or zero Hispanic students.63 In its second study, UT surveyed undergraduates on their impressions of diversity on campus and in the classroom. Minority students reported feeling isolated, and a majority of all students felt there was "insufficient minority representation" in classrooms for "the full benefits of diversity to occur."64 The University incorporated the findings of these two studies in its June 2004 Proposal to Consider Race and Ethnicity in Admissions.65 The 2004 Proposal concluded that diverse student enrollment "break[s] down stereotypes," "promotes cross-racial understanding," and "prepares students for an increasingly diverse workplace and society."66 With respect to the undergraduate program in particular, the 2004 Proposal explained that "[a] comprehensive college education requires a robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders."67 With Fisher, 645 F. Supp. 2d at 593. Classes with only one student of a given minority were thought to be just as troubling as classes with zero students of that minority because a single minority student is apt to feel isolated or like a spokesperson for his or her race. Id. at 602603; see also Grutter, 539 U.S. at 319. 63 62 Lavergne Aff. (Dist. Ct. Dkt. No. 102, Tab B) ¶¶ 45. Walker Aff. (Dist. Ct. Dkt. No. 96, Tab 11) ¶ 12. Dist. Ct. Dkt. No. 96, Tab 11, Ex. A [hereinafter 2004 Proposal]. 64 65 Id. at 1 (internal quotation marks omitted); see also Fisher, 645 F. Supp. 2d at 603. 67 66 2004 Proposal at 23 (quoted in Fisher, 645 F. Supp. 2d at 602). 17 No. 09-50822 one eye on Grutter, it observed that these objectives are especially important at UT because its "mission and . . . flagship role" is to "prepare its students to be the leaders of the State of Texas"--a role which, given the state's increasingly diverse profile, will require them "to be able to lead a multicultural workforce and to communicate policy to a diverse electorate."68 Citing the classroom diversity study, the 2004 Proposal explained that UT had not yet achieved the critical mass of underrepresented minority students needed to obtain the full educational benefits of diversity. Accordingly, the 2004 Proposal recommended adding the consideration of race as one additional factor within a larger admissions scoring index. This recommendation was presented as "an acknowledgment that the significant differences between the racial and ethnic makeup of the University's undergraduate population and the state's population prevent the University from fully achieving its mission."69 After more than a year of study following the Grutter decision, UT adopted a policy to include race as one of many factors considered in admissions. UT has no set date by which it will end the use of race in undergraduate admissions. Rather, it formally reviews the need for race-conscious measures every five years and considers whether adequate race-neutral alternatives exist. In addition, the district court found that the University informally reviews its admissions procedures each year.70 The current policy has produced noticeable results. One magazine dedicated to diversity in higher education ranked UT "sixth in the nation in producing undergraduate degrees for minority groups."71 In an entering class 68 Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). Id. (quoted in Fisher, 645 F. Supp. 2d at 602). Fisher, 645 F. Supp. 2d at 594. 69 70 Id. This particular ranking is somewhat limited in its significance, however, as the results are based on raw tabulations of the number of degrees 18 71 No. 09-50822 that was roughly the same size in 1998 as it was in 2008, the enrollment of African-American students doubled from 165 students to 335 students. Hispanic enrollment increased approximately 1.5 times, from 762 students to 1,228 students. Asian-American enrollment also increased nearly 10%, from 1,034 students to 1,126 students.72 By contrast, in 2004, the last year the Top Ten Percent Law operated without the Grutter plan, fall enrollment included only 275 African-Americans and 1,024 Hispanics. Because of the myriad programs instituted, it can be difficult to attribute increases in minority enrollment to any one initiative. In addition, demographics have shifted in Texas, so increases in minority enrollment likely in part reflect the increased presence of minorities statewide. III. THE CHALLENGED POLICY UT's consideration of race is one part of the complex admissions process operating when Appellants were rejected. Given Appellants' challenge, we must examine the whole of the process. A UT is a public institution of higher education, authorized by the Texas Constitution and supported by state and federal funding. Accordingly, it begins its admissions process by dividing applicants into three pools: (1) Texas residents, (2) domestic non-Texas residents, and (3) international students. conferred upon minority students. Large schools, like UT, are more likely to be ranked higher simply because they graduate a greater number of students (both minorities and non-minorities). See Victor M.H. Borden, Top 100 Undergraduate Degree Producers: Interpreting the Data, DIVERSE ISSUES IN HIGHER EDUC., June 12, 2008. Statistical Handbook 20042005, at 22 tbl.S13A; Statistical Handbook 20092010, at 16 tbl.S12 (data for fall enrollment only). For fall and summer numbers combined, see 2008 Top Ten Percent Report at 6. 19 72 No. 09-50822 Students compete for admission only against other students in their respective pool. Texas residents are allotted 90% of all available seats, with admission based on a two-tiered system, beginning with students automatically admitted under the Top Ten Percent Law and then filling the remaining seats on the basis of the Academic and Personal Achievement Indices.73 Because Appellants are Texas residents, their challenge focuses on the admissions procedures applied to in-state applicants. Texas applicants are divided into two subgroups: (1) Texas residents who are in the top ten percent of their high school class and (2) those Texas residents who are not. Top ten percent applicants are guaranteed admission to the University, and the vast majority of freshmen are selected in this way, without a confessed consideration of race. In 2008, for example, 81% of the entering class was admitted under the Top Ten Percent Law, filling 88% of the seats allotted to Texas residents and leaving only 1,216 offers of admission university-wide for non-top ten percent residents.74 The impact of the Top Ten Percent Law on UT's admissions has increased dramatically since it was first introduced in 1998, when only 41% of the seats for Texas residents were claimed by students with guaranteed admission.75 Admission decisions for domestic non-Texas residents and international applicants are made solely on the basis of their Academic and Personal Achievement Indices. 2008 Top Ten Percent Report at 8 tbl.2, 9 tbl.2b. Table 2 shows 8,984 top ten percent students were admitted in 2008. The UT Associate Director of Admissions reported that 10,200 admissions slots are available for Texas residents, leaving 1,216 slots for non-top ten percent students. Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12. Id. at 7 tbl.1a. In 1998, out of a class that included 6,110 Texas residents, only 2,513 enrolled freshmen were admitted under the Top Ten Percent Law. 20 75 74 73 No. 09-50822 The remaining Texas applicants, who were not within the top ten percent of their high school graduating class, compete for admission based on their Academic and Personal Achievement Indices.76 The Academic Index is the mechanical formula that predicts freshman GPA using standardized test scores and high school class rank.77 Some applicants' AI scores are high enough that they receive admission based on that score alone. Others are low enough that their applications are considered presumptively denied. If an application is presumptively denied, senior admission staff review the file and may, on rare occasions, designate the file for full review notwithstanding the AI score.78 The Personal Achievement Index is based on three scores: one score for each of the two required essays and a third score, called the personal achievement score, which represents an evaluation of the applicant's entire file. The essays are each given a score between 1 and 6 through "a holistic evaluation of the essay as a piece of writing based on its complexity of thought, substantiality of development, and facility with language."79 The personal achievement score is also based on a scale of 1 to 6, although it is given slightly The district court found that, on "relatively rare" occasions, a holistic review of the entire application may result in the University admitting an applicant to the fall class even though his or her AI or PAI scores fall just shy of the official cutoff. See Fisher, 645 F. Supp. 2d at 599. Fisher, 645 F. Supp. 2d at 596. The precise formulas used to calculate an applicant's Academic Index are derived by regression analysis and vary by intended major. For instance, the formula for prospective engineering majors gives greater weight to math scores, whereas the formula for prospective liberal arts majors gives somewhat greater weight to verbal scores. See 2004 Proposal at 27 & n.5. The differences in these formulas are immaterial to the present case. In other words, no applicant is denied admission based purely on AI score without having her file reviewed by at least one admissions reader and her individual circumstances considered. 79 78 77 76 Fisher, 645 F. Supp. 2d at 597. 21 No. 09-50822 greater weight in the final PAI calculation than the mean of the two essay scores.80 This personal achievement score is designed to recognize qualified students whose merit as applicants was not adequately reflected by their Academic Index. Admissions staff assign the score by assessing an applicant's demonstrated leadership qualities, awards and honors, work experience, and involvement in extracurricular activities and community service. In addition, the personal achievement score includes a "special circumstances" element that may reflect the socioeconomic status of the applicant and his or her high school, the applicant's family status and family responsibilities, the applicant's standardized test score compared to the average of her high school, and--beginning in 2004--the applicant's race.81 To assess these intangible factors, evaluators read the applicant's essays again, but this time with an eye to the information conveyed rather than the quality of the student's writing. Admissions officers undergo annual training by a nationally recognized expert in holistic scoring, and senior staff members perform quality control to verify that awarded scores are appropriate and consistent. The most recent study, in 2005, found that holistic file readers scored within one point of each other 88% of the time.82 None of the elements of the personal achievement score--including race--are considered individually or given separate numerical values to be added together. Rather, the file is evaluated as a whole in order to provide the fullest possible understanding of the student as a person and to place his or her PAI = [(personal achievement score * 4) + (average essay score * 3)] / 7. Id. at 597 n.7. 81 80 Id. at 591592, 597. Id. at 597; see Univ. of Tex. at Austin Office of Admissions, Inter-Rater Reliability of Holistic Measures Used in the Freshman Admission Process of the University of Texas at Austin (Feb. 22, 2005) (Dist. Ct. Dkt. No. 94, Ex. 10). 22 82 No. 09-50822 achievements in context.83 As UT's director of admissions explained, "race provides--like [the] language [spoken in the applicant's home], whether or not someone is the first in their family to attend college, and family responsibilities--important context in which to evaluate applicants, and is only one aspect of the diversity that the University seeks to attain."84 Race is considered as part of the applicant's context whether or not the applicant belongs to a minority group, and so--at least in theory--it "can positively impact applicants of all races, including Caucasian[s], or [it] may have no impact whatsoever."85 Moreover, given the mechanics of UT's admissions process, race has the potential to influence only a small part of the applicant's overall admissions score. The sole instance when race is considered is as one element of the personal achievement score, which itself is only a part of the total PAI. Without a sufficiently high AI and well-written essays, an applicant with even the highest personal achievement score will still be denied admission.86 B Although the process for calculating AI and PAI scores is common to all parts of the University, each offer of admission to UT is ultimately tied to an individual school or major. Texas residents in the top ten percent of their high school class are guaranteed admission to the University, but they are not assured admission to the individual school or program of their choice. Most majors and colleges in the University provide automatic admission to Top Ten Percent Law applicants, but certain "impacted majors"--including the School of Business, the College of Communication, and the Schools of 83 Fisher, 645 F. Supp. 2d at 597. Walker Aff. (Dist. Ct. Dkt. No. 96, Tab 11) ¶ 15. Fisher, 645 F. Supp. 2d at 597. See id. at 608. 23 84 85 86 No. 09-50822 Engineering, Kinesiology, and Nursing--are obligated to accept only a certain number of Top Ten Percent Law applicants.87 These programs are "impacted" because they could fill 80% or more of their available spaces each year solely through operation of the Top Ten Percent Law. To avoid oversubscription and to allow these colleges and majors to admit some non-top ten percent applicants, UT caps the percentage of students automatically admitted to these programs at 75% of the available spaces.88 Top Ten Percent Law applicants who do not receive automatic entry to their first choice program compete for admission to the remaining spaces, and if necessary to their second-choice program, on the basis of their AI and PAI scores. The admissions office places students into matrices for each preferred school or major, with students grouped by AI score along one axis and PAI score along the other axis. Liaisons for the majors then establish a cutoff line, which is drawn in a stair-step pattern. Applicants denied admission to their firstchoice program are considered for their second choice, with cutoff lines readjusted to reflect the influx of those applicants. Any top ten percent applicants not admitted to either their first- or second-choice program are automatically admitted as Liberal Arts Undeclared majors. All other applicants not yet admitted to UT compete, again according to AI and PAI scores, for any remaining seats in the Liberal Arts Undeclared program. Although this completes the admissions process for the fall portion of the freshman class, no Texas resident who submits a timely application is denied admission. Instead, those residents not admitted to the entering fall class are In addition, because of special portfolio, audition, and other requirements, the Top Ten Percent Law does not apply to the School of Architecture, the School of Fine Arts, and certain honors programs. Thus, for example, the School of Business granted automatic admission only to those students who graduated in the top 4% of their high school class and selected a business major as their first choice. Ishop Dep. (Dist. Ct. Dkt. No. 96, Tab 2) at 32. 24 88 87 No. 09-50822 offered admission to either the summer program or the Coordinated Admissions Program (CAP). Marginal applicants who missed the cutoff for the fall class are offered admission to the summer program, which permits students to begin their studies at UT during the summer and then join the regularly admitted students in the fall. About 800 students enroll in the summer program each year. All remaining Texas applicants are automatically enrolled in CAP, which guarantees admission as a transfer student if the student enrolls in another UT system campus for her freshman year and meets certain other conditions, including the completion of thirty credit hours with a cumulative grade point average of 3.2 or higher. C The Academic Index and Personal Achievement Index now employed by UT have been in continuous use since 1997. The lone substantive change came in 2005, following the Grutter decision, when the Board of Regents authorized the consideration of race as another "special circumstance" in assessing an applicant's personal achievement score. Race--like all other elements of UT's holistic review--is not considered alone. Admissions officers reviewing each application are aware of the applicant's race, but UT does not monitor the aggregate racial composition of the admitted applicant pool during the process. The admissions decision for any particular applicant is not affected--positively or negatively--by the number of other students in her racial group who have been admitted during that year.89 Thus, "it is difficult to evaluate which applicants have been positively or negatively affected by its consideration or which applicants were ultimately offered admission due to their race who would not have otherwise been offered 89 Fisher, 645 F. Supp. 2d at 598, 609. 25 No. 09-50822 admission."90 Nevertheless, the district court found that race "is undisputedly a meaningful factor that can make a difference in the evaluation of a student's application."91 D UT undoubtedly has a compelling interest in obtaining the educational benefits of diversity, and its reasons for implementing race-conscious admissions--expressed in the 2004 Proposal--mirror those approved by the Supreme Court in Grutter. The district court found that both the UT and Grutter policies "attempt to promote `cross-racial understanding,' `break down racial stereotypes,' enable students to better understand persons of other races, better prepare students to function in a multi-cultural workforce, cultivate the next set of national leaders, and prevent minority students from serving as `spokespersons' for their race."92 Like the law school in Grutter, UT "has determined, based on its experience and expertise, that a `critical mass' of 90 Id. at 597. Id. at 597598. 91 Id. at 603 (quoting Grutter, 539 U.S. at 31920). More specifically, as described in the 2004 Proposal, one purpose of UT's race-conscious policy is "`to provide an educational setting that fosters cross-racial understanding, provides enlightened discussion and learning, and prepares students to function in an increasingly diverse workforce and society.'" 2004 Proposal at 25 (quoted in Fisher, 645 F. Supp. 2d at 603). Another is to produce "`future educational, cultural, business, and sociopolitical leaders.'" Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). And because Texas's population is uniquely diverse--"[i]n the near future, Texas will have no majority race"--"`tomorrow's leaders must not only be drawn from a diverse population[,] but must also be able to lead a multicultural workforce and to communicate policy to a diverse electorate.'" Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). As the state's flagship public institution, UT determined that it "`has a compelling educational interest to produce graduates who are capable of fulfilling the future leadership needs of Texas.'" Id. at 24 (quoted in Fisher, 645 F. Supp. 2d at 602). 26 92 No. 09-50822 underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body."93 UT has made an "educational judgment that such diversity is essential to its educational mission," just as Michigan's Law School did in Grutter.94 Considering UT's admissions system in its historical context, it is evident that the efforts of the University have been studied, serious, and of high purpose, lending support to a constitutionally protected zone of discretion. That said, the use of race summons close judicial scrutiny, necessary for the nation's slow march toward the ideal of a color-blind society, at least as far as the government can see. IV. STANDARD OF REVIEW It is a given that as UT's Grutter-like admissions program differentiates between applicants on the basis of race, it is subject to strict scrutiny with its requirement of narrow tailoring.95 At the same time, the Supreme Court has held that "[c]ontext matters" when evaluating race-based governmental action, and a university's educational judgment in developing diversity policies is due deference.96 93 Fisher, 645 F. Supp. 2d at 603 (quoting Grutter, 539 U.S. at 333). Grutter, 539 U.S. at 328. 94 Id. at 326, 328 (citing Adarand, 515 U.S. at 227); see also Parents Involved, 551 U.S. at 720. Grutter, 539 U.S. at 327; see also id. at 328 ("The Law School's educational judgment . . . is one to which we defer. . . . Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits."). 27 96 95 No. 09-50822 A Judicial deference to a university's academic decisions rests on two independent foundations. First, these decisions are a product of "complex educational judgments in an area that lies primarily within the expertise of the university," far outside the experience of the courts.97 Second, "universities occupy a special niche in our constitutional tradition," with educational autonomy grounded in the First Amendment.98 As Justice Powell explained in Bakke, "[a]cademic freedom . . . . includes [a university's] selection of its student body."99 Yet the scrutiny triggered by racial classification "is no less strict for taking into account" the special circumstances of higher education.100 "[S]trict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in [a] particular context."101 Narrow tailoring, a component of strict scrutiny, requires any use of racial classifications to so closely fit a compelling goal as to remove the possibility that the motive for the classification was illegitimate racial stereotype. Rather than second-guess the merits of the University's decision, a task we are ill-equipped to perform, we instead scrutinize the University's decisionmaking process to ensure that its decision to adopt a race-conscious admissions policy followed from the good faith consideration Grutter requires. We presume the University acted in good faith, 97 Id. at 328. Id. at 329. Bakke, 438 U.S. at 312 (opinion of Powell, J.). Grutter, 539 U.S. at 328. Id. at 327. 28 98 99 100 101 No. 09-50822 a presumption Appellants are free to rebut.102 Relatedly, while we focus on the University's decision to adopt a Grutter-like plan, admissions outcomes remain relevant evidence of the plan's necessity--a reality check. B With a nod to Grutter's command that we generally give a degree of deference to a university's educational judgments, Appellants urge that Grutter did not extend such deference to a university's decision to implement a raceconscious admissions policy. Instead, they maintain Grutter deferred only to the university's judgment that diversity would have educational benefits, not to the assessment of whether the university has attained critical mass of a racial group or whether race-conscious efforts are necessary to achieve that end. As an initial matter, this argument in its full flower is contradicted by Grutter. The majority held that, like the examination into whether the University has a compelling interest, "the narrow-tailoring inquiry . . . must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education."103 That is, the narrow-tailoring inquiry--like the compelling-interest inquiry--is undertaken with a degree of deference to the University's constitutionally protected, presumably expert academic judgment. Appellants would have us borrow a more restrictive standard of review from a series of public employment and government contracting cases, in which the Supreme Court "held that certain government actions to remedy past racial discrimination--actions that are themselves based on race--are constitutional Id. at 329 ("[G]ood faith on the part of a university is presumed absent a showing to the contrary." (internal quotation marks omitted) (quoting Bakke, 438 U.S. at 31819 (opinion of Powell, J.))). 103 102 Id. at 33334. 29 No. 09-50822 only where there is a `strong basis in evidence' that the remedial actions were necessary."104 The Court most recently applied this strong-basis-in-evidence standard in Ricci v. DeStefano. In Ricci, white firefighters from New Haven, Connecticut sued under Title VII, challenging the city's decision to disregard a promotions test after the results showed that white candidates significantly outperformed minority candidates.105 New Haven defended this action, arguing that if it had ratified the test results it could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters.106 The white firefighters, however, argued that ignoring the test results was a violation of Title VII's separate prohibition against intentional race discrimination, or disparate treatment.107 Responding to this tension, the Supreme Court held that such intentional race-based action is not permitted by Title VII unless the employer can demonstrate with a strong basis in evidence that it would have been liable under the disparate impact provision had it not taken the action.108 The Court suggested that anything less would risk creating a de facto quota system, where an employer could disregard test results to achieve a preferred racial balance, impermissibly shifting the focus from individual discrimination Ricci v. DeStefano, 129 S. Ct. 2658, 2675 (2009) (some internal quotation marks omitted) (quoting Richmond v. J.A Croson Co., 488 U.S. 469, 500 (1989), in turn quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277 (1986) (plurality)). 105 104 Id. at 2664. Id.; see 42 U.S.C. § 2000e-2(k)(1)(A)(i) (codifying Griggs v. Duke Power Co., 401 U.S. 424 (1971)). 107 106 See 42 U.S.C. § 2000e-2(a)(1). Ricci, 129 S. Ct. at 2664. 30 108 No. 09-50822 to group bias.109 Applying the strong-basis-in-evidence standard, the Supreme Court held that New Haven's fear of disparate impact liability was not adequately supported.110 The city had argued it only needed to show a fear of liability based on a good-faith belief--a rough analogy to the university admissions standard. Yet the Court found that an intent-based standard could not be squared with the statutory text. The Ricci Court turned to the strong-basis-in-evidence standard "as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII."111 Although Ricci did not address the firefighters' equal protection claim, the Court derived its standard from Richmond v. J.A. Croson Co.,112 a government contracting case, which in turn adopted from a plurality opinion in Wygant v. Jackson Board of Education, a public employment case.113 In Wygant, the plurality concluded that defending race-based public employment decisions as responsive to present effects of past discrimination required a strong basis in evidence of the past discrimination.114 Similarly, Croson adopted this standard after observing that "an amorphous claim [of] past discrimination in a particular industry cannot justify the use of an unyielding racial quota."115 109 Id. at 2676. Id. 110 Id. at 2676. We note that these statutory constraints are not present in the context of university admissions programs. 112 111 488 U.S. at 500. 476 U.S. at 277. Id. at 277278. Croson, 488 U.S. at 499. 31 113 114 115 No. 09-50822 This recitation of history, quick as it is, makes plain that the cases Appellants cite have little purchase in this challenge to university admissions. The high standard for justifying the use of race in public employment decisions responds to the reality that race used in a backward-looking attempt to remedy past wrongs, without focus on individual victims, does not treat race as part of a holistic consideration. In doing so, it touches the third rail of racial quotas. Wygant and Croson both involved explicit quotas; in Ricci, the Court was concerned that the city's use of race threatened to devolve into a de facto quota. By contrast, Grutter recognized that universities are engaged in a different enterprise. Their holistic approach is part of a forward-looking effort to obtain the educational benefits of diversity. The look to race as but one element of this further goal, coupled with individualized consideration, steers university admissions away from a quota system. Grutter teaches that so long as a university considers race in a holistic and individualized manner, and not as part of a quota or fixed-point system, courts must afford a measure of deference to the university's good faith determination that certain race-conscious measures are necessary to achieve the educational benefits of diversity, including attaining critical mass in minority enrollment. Parents Involved in Community Schools v. Seattle School District No. 1 further supports this understanding.116 When scrutinizing two school districts' race-conscious busing plans, the Court invoked Grutter's "serious, good faith consideration" standard, rather than the strong-basis-in-evidence standard that Appellants would have us apply.117 The Parents Involved Court never suggested that the school districts would be required to prove their plans were meticulously supported by some particular quantum of specific evidence. Rather, the Court struck down the school districts' programs because they pursued racial balancing 116 551 U.S. 701 (2007). See id. at 735 (quoting Grutter, 539 U.S. at 339). 32 117 No. 09-50822 and defined students based on racial group classifications, not on individual circumstances. In short, the Court has not retreated from Grutter's mode of analysis, one tailored to holistic university admissions programs. Thus, we apply strict scrutiny to race-conscious admissions policies in higher education, mindful of a university's academic freedom and the complex educational judgments made when assembling a broadly diverse student body. C Appellants do not allege that UT's race-conscious admissions policy is functionally different from, or gives greater consideration to race than, the policy upheld in Grutter. Rather, Appellants question whether UT needs a Grutter-like policy. As their argument goes, the University's race-conscious admissions program is unwarranted because (1) UT has gone beyond a mere interest in diversity for education's sake and instead pursues a racial composition that mirrors that of the state of Texas as a whole, amounting to an unconstitutional attempt to achieve "racial balancing"; (2) the University has not given adequate consideration to available "race-neutral" alternatives, particularly percentage plans like the Top Ten Percent Law; and (3) UT's minority enrollment under the Top Ten Percent Law already surpassed critical mass, such that the additional (and allegedly "minimal") increase in diversity achieved through UT's Grutterlike policy does not justify its use of race-conscious measures. We will consider each of these arguments in turn. V. RACIAL BALANCING Again, diversity is a permissible goal for educational institutions, but "outright racial balancing" is not. Attempting to ensure that the student body contains some specified percentage of a particular racial group is "patently 33 No. 09-50822 unconstitutional."118 This concept follows from the Supreme Court's repeated emphasis that, by itself, increasing racial representation is not a sufficiently compelling interest to justify the use of racial preferences. Grutter described many important educational interests that may be sought through diversity, but steadfastly maintained that "`[r]acial balance is not to be to be achieved for its own sake.'"119 Moreover, "[t]he point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance" by creating an unconstitutional quota.120 A Looking to the details of UT's race-conscious admissions policy, it is clear that administrators knew a quota system would not survive judicial review, and they took care to avoid this fatal mistake. UT's system was modeled after the Grutter program, which the Supreme Court held was not a quota. UT has never established a specific number, percentage, or range of minority enrollment that would constitute "critical mass," nor does it award any fixed number of points to minority students in a way that impermissibly values race for its own sake.121 Grutter, 539 U.S. at 32930 (quoting Bakke, 438 U.S. at 308 (opinion of Powell, J.)). 119 118 Id. at 330 (quoting Freeman v. Pitts, 503 U.S. 467, 494 (1992)). Parents Involved, 551 U.S. at 723. 120 Appellants argue that UT's "head-in-the-sand approach"--refusing to identify any specific number, percentage, or range of minority students that would constitute critical mass--is an improper attempt "to short circuit any inquiry into whether it can justify its policy with evidence by arguing that critical mass is a purely subjective concept that cannot be evaluated in numerical terms." Appellants claim that until UT identifies some "finishing line," the use of race has "no logical stopping point" and is therefore "too amorphous a basis for imposing a racially classified remedy." But in both Bakke 34 121 No. 09-50822 Further, there is no indication that UT's Grutter-like plan is a quota by another name. It is true that UT looks in part to the number of minority students when evaluating whether it has yet achieved a critical mass, but "[s]ome attention to numbers, without more, does not transform a flexible admissions system into a rigid quota."122 Whereas a quota imposes a fixed percentage standard that cannot be deviated from, a permissible diversity goal "`require[s] only a good-faith effort . . . to come within a range demarcated by the goal itself.'"123 Indeed, UT's policy improves upon the program appr