PATRICK E. HIGGINBOTHAM, Circuit Judge:
Abigail Fisher brought this action against the University of Texas at Austin,
Fisher applied to UT Austin for admission to the entering class of fall 2008.
To admit applicants through this holistic review, the admissions office generates an initial AI/PAI matrix for each academic program, wherein applicants are placed into groups that share the same combination of AI and PAI scores.
Fisher's AI scores were too low for admission to her preferred academic programs at UT Austin; Fisher had a Liberal
This reality together with factual developments since summary judgment call into question whether Fisher has standing.
Two competing and axiomatic principles govern the resolution of this question. First, jurisdiction must exist at every stage of litigation. A litigant "generally may raise a court's lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance."
Second, the "mandate rule," a corollary of the law of the case doctrine, "compels compliance on remand with the dictates of a superior court and forecloses
UT Austin's standing arguments carry force,
We turn to the question whether we can and should remand this case. The Supreme Court's mandate frames its resolution, ordering that "[t]he judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion." The mandate must be read against the backdrop of custom that accords courts of appeal discretion to remand to the district court on receipt of remands to it for proceedings consistent with the opinion — a customary discretion not displaced but characterized by nigh boiler plate variations in phrasing of instructions such as "on remand the Court of Appeals may `consider,'" or "for the Court of Appeals to consider in the first instance."
Fisher argues that the Supreme Court's remanding language — "fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis"
UT Austin opposes this parsing of language, arguing that Fisher fails to credit (i) the entirety of the Supreme Court's references which spoke, not just to the fairness of allowing this Court to correct its error, but also to the fairness to the district court, which first heard the case and was faulted for the same error as this Court; and, (ii) that the language used by the Supreme Court is the common language of remand orders and is often followed by a remand to the district court. UT Austin notes that in its remanding language, the Supreme Court cites Adarand Constructors, Inc. v. Pena,
Given the customary practice of the courts of appeals and the less than clear language of the Supreme Court's remand, we are not persuaded that the Supreme Court intended to foreclose our discretion to remand to the district court. A review of the Supreme Court's language lends but little support to each side. Yet, this is telling. Had the Supreme Court intended to control the discretion of this Court as to whether the district court should first address an error that the Supreme Court found was made by both courts, there would have been no uncertainty in the remand language. The question whether we should remand remains.
There is no clear benefit to remanding this case to the district court. The suggestion, without more, that discovery may be necessary given the Supreme Court's holding regarding proper scrutiny and deference adds nothing. Admittedly, this case differs from Grutter, in that Grutter went to trial. And evidence offered by live witnesses is far more likely to surface and resolve fact issues than summary judgment evidence crafted by advocates. But that too is far from certain. Indeed, UT Austin's argument goes no further than "factual questions or disputes may arise on remand."
We find that there are no new issues of fact that need be resolved, nor is there any identified need for additional discovery; that the record is sufficiently developed; and that the found error is common to both this Court and the district court. It follows that a remand would likely result in duplication of effort. We deny UT Austin's
In remanding, the Supreme Court held that its decision in Grutter requires that "strict scrutiny must be applied to any admissions program using racial categories or classifications";
The Supreme Court has made clear that "a university's educational judgment that such diversity is essential to its educational mission is one to which we defer."
In both Fisher and Grutter, the Supreme Court endorsed Justice Powell's conclusion that "attainment of a diverse student body ... is a constitutionally permissible goal for an institution of higher education;"
Diversity is a composite of the backgrounds, experiences, achievements, and hardships of students to which race only contributes. "[A] university is not permitted to define diversity as some specified percentage of a particular group merely because of its race or ethnic origin" because that "would amount to outright racial balancing, which is patently unconstitutional."
In language from which it has not retreated, the Supreme Court explained that the educational goal of diversity must be "defined by reference to the educational benefits that diversity is designed to produce."
A university "must prove that the means chosen by the University to attain diversity are narrowly tailored to
Narrow tailoring requires that the court "verify that it is `necessary' for a university to use race to achieve the educational benefits of diversity."
The Supreme Court emphasized that strict scrutiny must be balanced. That is, "[s]trict scrutiny must not be strict in theory, but fatal in fact," yet it must also "not be strict in theory but feeble in fact."
Fisher insists that our inquiry into narrow tailoring begin in 2004, the last year before UT Austin adopted its current race-conscious admissions program. Looking to that year, Fisher argues that the Top Ten Percent Plan had achieved a substantial combined Hispanic and African-American enrollment of approximately 21.5%;
This effort to truncate the inquiry clings to a baseline that crops events Fisher's claim ignores, as it must. The true narrative presents with a completeness both fair and compelled by the Supreme Court's charge to ascertain the facts in full without deference, exposing the de minimis argument as an effort to turn narrow tailoring upside down. We turn to that narrative.
In 1997, following the Hopwood v. Texas
Nor did these difficulties escape the Texas legislature. Opponents to the proposed plan noted that such a policy "could actually harm institutions" and "would not solve the problems created by [Hopwood]."
We are offered no coherent response to the validity of a potentially different election
Close scrutiny of the data in this record confirms that holistic review — what little remains after over 80% of the class is admitted on class rank alone — does not, as claimed, function as an open gate to boost minority headcount for a racial quota. Far from it. The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top ten percent results in minority students being under-represented — and white students being over-represented — in holistic review admissions relative to the program's impact on each incoming class. In other words, for each year since the Top Ten Percent Plan was created through 2008, holistic review contributed a greater percentage of the incoming class of Texans as a whole than it did the incoming minority students. Examples illustrate this effect. Of the incoming class of 2008, the year Fisher applied for admission, holistic review contributed 19% of the class of Texas students as a whole — but only 12% of the Hispanic students and 16% of the black students, while contributing 24% of the white students.
Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual's contributions to UT Austin's diversity, including those that stem from race, holistic admissions would approach an all-white enterprise. Data for the entering Texan class of 2005, the first year of the Grutter plan, show that Hispanic students admitted through holistic review attained an average SAT score of 1193, African-American students an 1118, and white students a 1295.
UT Austin did not stop with the Top Ten Percent Plan in its effort to exhaust racially neutral alternatives to achieving diversity. It also initiated a number of outreach and scholarship efforts targeting under-represented demographics, including the over half of Texas high school graduates that are African-American or Hispanic.
UT Austin also expanded its outreach and recruitment efforts by increasing its recruitment budget by $500,000, by adding three regional admissions centers in Dallas, San Antonio, and Harlingen,
In addition to the admissions office's efforts, UT Austin's Office of Student Financial Services increased their outreach efforts by putting together the Financial Aid Outreach Group to visit high schools to help prospective students "understand the financial support offered by [UT Austin]."
"Narrow tailoring does not require exhaustion of every race neutral alternative," but rather "serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks."
Despite UT Austin's rapid adoption of these race-neutral efforts, in 1997 — the first freshman class after Hopwood — the percentage of African-American admitted students fell from 4.37% to 3.41%, representing a drop from 501 to 419 students even as the total number of admitted students increased by 833 students.
Numbers aside, the Top Ten Percent Plan's dependence upon a distinct admissions door remained apparent. With each entering class, there was a gap between the lower standardized test scores of students admitted under the Top Ten Percent Plan and the higher scores of those admitted under holistic review. For example, in 2008 — the year Fisher applied for admission — 81% of the seats available to Texas residents were taken up by the Top Ten Percent Plan.
The sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas
Fisher's claim can proceed only if Texas must accept this weakness of the Top Ten Percent Plan and live with its inability to look beyond class rank and focus upon individuals. Perversely, to do so would put in place a quota system pretextually race neutral. While the Top Ten Percent Plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools,
Data for the year Fisher graduated high school show that gaps between the quality of education available to students at integrated high schools and at majority-minority schools are stark. Their impact upon UT Austin is direct. The Top Ten Percent Plan draws heavily from the population concentrations of the three major metropolitan areas of Texas — San Antonio, Houston, and Dallas/Fort Worth — where over half of Texas residents live and where the outcomes gaps of segregated urban schools are most pronounced.
A similar tale of two cities played out in the Houston area between integrated Katy ISD, where 7.8% of graduating students were black, 23.2% Hispanic, and 59.8% white,
The narrative repeats itself in the Dallas/Fort Worth metropolitan area. For example, Keller ISD, a large and "recognized" school district with four "Gold Performance
The top decile of high schools in each of these districts — including large numbers of students from highly segregated, underfunded, and underperforming schools — all qualified for automatic admission to UT Austin. That these students were able to excel in the face of severe limitations in their high school education and earn a coveted place in UT Austin's prestigious freshman class is to be commended. That other students are left out — those who fell outside their high school's top ten percent but excelled in unique ways that would enrich the diversity of UT Austin's educational experience — leaves a gap in an admissions process seeking to create the multi-dimensional diversity that Bakke envisions.
UT Austin's holistic review program — a program nearly indistinguishable from the University of Michigan Law School's program in Grutter — was a necessary and enabling component of the Top Ten Percent Plan by allowing UT Austin to reach a pool of minority and non-minority students with records of personal achievement, higher average test scores, or other unique skills. A variety of perspectives, that is differences in life experiences, is a distinct and valued element of diversity. Yet a significant number of students excelling in high-performing schools are passed over by the Top Ten Percent Plan although they could bring a perspective not captured by admissions along the sole dimension of class rank. For example, the experience of being a minority in a majority-white or majority-minority school and succeeding in that environment offers a rich pool of potential UT Austin students with demonstrated qualities of leadership and sense of self. Efforts to draw from this pool do not demean the potential of Top Ten admittees. Rather it complements their contribution to diversity — mitigating in an important way the effects of the single dimension process.
UT Austin persuades that this reach into the applicant pool is not a further search for numbers but a search for students
These realities highlight the difficulty of an approach that seeks to couch the concept of critical mass within numerical terms. The numbers support UT Austin's argument that its holistic use of race in pursuit of diversity is not about quotas or targets, but about its focus upon individuals, an opportunity denied by the Top Ten Percent Plan. Achieving the critical mass requisite to diversity goes astray when it drifts to numerical metrics. UT Austin urges that it has made clear that looking to numbers, while relevant, has not been its measure of success; and that its goals are not captured by population ratios. We find this contention proved, mindful that by 2011, Texas high school graduates were majority-minority.
UT Austin urges that its first step in narrow tailoring was the admission of over 80% of its Texas students though a facially race-neutral process, and that Fisher's embrace of the sweep of the Top Ten Percent Plan as a full achievement of diversity reduces critical mass to a numerical game and little more than a cover for quotas. Fisher refuses to acknowledge this distinction between critical mass — the tipping point of diversity — and a quota. And in seeking to quantify "critical mass" as a rigid numerical goal, Fisher misses the mark. Fisher is correct that if UT Austin defined its goal of diversity by the numbers only, the Top Ten Percent Plan could be calibrated to meet that mark. To do so, however, would deny the role of holistic review as a necessary complement to Top Ten Percent admissions. We are persuaded that holistic review is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system; that in doing so, its limited use of race is narrowly tailored to this role — as small a part as possible for the Plan to succeed.
The Top Ten Percent Plan is dynamic, its take floating year to year with the number of Texas high school graduates in the top ten percent of their class that choose to capitalize on their automatic admission to the flagship university. Its impact on the composition of each incoming class predictably has grown dramatically, leaving ever fewer holistic review seats available for the growing demographic of Texas high school graduates. In 1996, when the Top Ten Percent Plan was introduced, it admitted 42% of the Texas incoming class; by 2005, when the Grutter plan was introduced, the Plan occupied 69% of the seats available to Texas residents; by 2008, when Fisher applied for admission, it had swelled to 81%.
A quick glance in the public record of data since 2008 confirms that UT Austin's race-conscious holistic review program has a self-limiting nature, one that complements UT Austin's periodic review of the program's necessity to ensure it is limited in time. For the entering class of 2009, the year after Fisher applied for admission, the Top Ten Percent Plan's take of the seats available for Texas residents swelled to 86% and remained at 85% in 2010.
This trend did not escape the Texas Legislature. Consistent with its long-standing view of holistic review as a crucial complement to the Top Ten Percent Plan, Texas passed Senate Bill 175 of the 81st Texas Legislature (SB 175) in 2009. SB 175 modified the Top Ten Percent Plan for UT Austin to authorize the University "to limit automatic admission to no less than 75% of its enrollment capacity for first-time resident undergraduate students beginning with admission for the entering class of 2011 and ending with the entering class of 2015."
In the growing shadow of the Top Ten Percent Plan, there was a cautious, creeping numerical increase in minority representation following the inclusion of race and ethnicity in the holistic review program, a testament, UT Austin says, to its race-conscious holistic review. We must agree. From 2004, the last facially race-neutral holistic review program year, to 2005, the first year that race and ethnicity were considered, the percentage of African-American students admitted to UT Austin climbed from 4.82% to 5.05%. The trend has continued since, climbing to 5.13% in 2006, 5.41% in 2007, and 5.67% in 2008. Similarly, the percentage of Hispanic admitted students climbed from 16.21% in 2004, to 17.88% in 2005, 18.08% in 2006, 19.07% in 2007, and 20.41% in 2008.
Turning in the opposite direction from her claim of racial quotas, Fisher faults UT Austin's holistic use of race for its de minimis contribution to diversity. UT Austin replies that this turns narrow tailoring upside down. We agree. Holistic review allows selection of an overwhelming number of students by facially neutral measures and for the remainder race is only a factor of factors. Fisher's focus on the numbers of minorities admitted through the holistic gate relative to those admitted through the Top Ten Percent Plan is flawed, ignoring its role as a necessary complement to the Plan. The apt question is its contribution to the richness of diversity as envisioned by Bakke against the backdrop of the Top Ten Percent Plan. That is its palliative role claimed by UT Austin. So viewed, holistic review's low production of numbers is its strength, not its weakness.
In sum, Fisher points to the numbers and nothing more in arguing that race-conscious admissions were no longer necessary because a "critical mass" of minority students had been achieved by the time Fisher applied for admission — a head count by skin color or surname that is not the diversity envisioned by Bakke and a measure it rejected. In 2007, Fisher emphasizes, there were 5.8% African-American and 19.7% Hispanic enrolled students, which exceeds pre-Hopwood levels and the minority enrollment at the University of Michigan Law School examined in Grutter. But an examination that looks exclusively at the percentage of minority students fails before it begins. Indeed, as Grutter teaches, an emphasis on numbers in a mechanical admissions process is the most pernicious of discriminatory acts because it looks to race alone, treating minority students as fungible commodities that represent a single minority viewpoint. Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race. Grutter defines critical mass by reference to a broader view of diversity rather than by the achievement of a certain quota of minority students. Here, UT Austin has demonstrated a permissible goal of achieving the educational benefits of diversity within that university's distinct mission, not seeking a percentage of minority students that reaches some arbitrary size.
Implicitly conceding the need for holistic review, Fisher offers socioeconomic disadvantage as a race-neutral alternative in holistic review. UT Austin points to widely accepted scholarly work concluding that "there are almost six times as many white students as black students who both come from [socio-economically disadvantaged] families and have test scores that are above the threshold for gaining admission at an academically selective college or university."
We are satisfied that UT Austin has demonstrated that race-conscious holistic review is necessary to make the Top Ten Percent Plan workable by patching the holes that a mechanical admissions program leaves in its ability to achieve the rich diversity that contributes to its academic mission — as described by Bakke and Grutter.
Over the history of holistic review, its intake of students has declined, minority and non-minority, and changed the profile of the students it admits — the growing number of applicants and increasing take of the Top Ten Percent Plan raises the competitive bar each year, before race is ever considered, for the decreasing number of seats filled by holistic review. Those admitted are those that otherwise would be missed in the diversity mix — for example, those with special talents beyond class rank and identifiable at the admission gate, and minorities with the experience of attending an integrated school with better educational resources.
The data also show that white students are awarded the overwhelming majority of the highly competitive holistic review seats. As we have explained and as shown in Appendix 2, the increasing take of the Top Ten Percent Plan is inherently self-limiting. UT Austin has demonstrated that it is on a path that each year reduces the role of race. After the Top Ten Percent Plan swallowed 81% of the seats available for Texas students in 2008, for example, white Texan students admitted through holistic review occupied an additional 12% of the overall seats. Only 2.4% and 0.9% of the incoming class of Texas high school graduates were Hispanic and black students admitted through holistic review. That is, admission via the holistic review program — overwhelmingly and disproportionally of white students — is highly competitive for minorities and non-minorities alike. These data persuade us of the force of UT Austin's argument that a limited use of race is necessary to target minorities with unique talents and higher test scores to add the diversity envisioned by Bakke to the student body.
Numbers are not controlling but they are relevant to UT Austin's claimed need for holistic review as a necessary component of its admission program. In 2005, the first class that included race and ethnicity in holistic review, 176(29%) of 617 total African-American admitted students were admitted via holistic review.
Recall the 3.5 AI threshold that excluded Fisher. Holistic review for the colleges to which Fisher applied only admitted applicants — minority or non-minority — with a minimum AI score of 3.5. This effectively added to the mix a pool of applicants from which those colleges could admit students with higher test scores and a higher predicted level of performance, despite being outside the top ten percent of their class, as part of a greater mosaic of talents. Insofar as some dispersion of minority students among many classes and programs is important to realizing the educational benefits of diversity, race-conscious holistic review is a necessary complement to the Top Ten Percent Plan by giving high-scoring minority students a better chance of gaining admission to UT Austin's competitive academic departments. Fisher's proffered solution is for UT Austin's more competitive academic programs to lower their gates. But this misperceives the source of the AI threshold for admission into the competitive colleges: These programs fill 75% of their seats from the pool of students automatically admitted under the Top Ten Percent Plan. The large number of holistic review candidates competing for the quarter of the remaining seats dictates the high AI threshold that all applicants — minority or non-minority — must meet to qualify for admission. Fisher also points to weak dispersal across classes as evidence of UT Austin's pursuit of numbers. It is precisely the opposite. We repeat, holistic review's search is for diversity, as envisioned by Bakke, one benefit of which is its attendant mitigation of the clustering tendencies of the Top Ten Percent Plan.
Fisher responds that, even if necessary, UT Austin could never narrowly tailor a program that achieves classroom diversity. In particular, Fisher suggests that it is impossible to obtain classroom-level diversity without some sort of fixed curriculum or lower school- or major-level standards. This argument again misses the mark by defining diversity only by numbers. UT Austin does not suggest that the end point of this exercise is a specific measure of diversity in every class or every major. Instead, such measures are relevant but not determinative signals of a want of the array of skills needed for diversity. In other words, diversity in the student body surely produces a degree of intra-classroom and intra-major diversity, with the "important and laudable" benefit recognized in Grutter of "classroom discussion [being] livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds."
Interlacing the Top Ten Percent Plan, with its dependence upon segregated schools to produce minority enrollment, with a plan that did not consider race until it had a universe of applicants clearing a high hurdle of demonstrated scholastic performance strongly supports UT Austin's assertion that its packaging of the two was necessary in its pursuit of diversity. This hurdle is a product of a growing number of applicants competing for an ever-shrinking number of holistic review seats, creating one of the most competitive admissions processes in the country. And when race enters it is deployed in the holistic manner of Grutter as a factor of a factor. Even then the minority student that receives some boost for her race will have survived a fierce competition. These minorities are in a real sense, along with the non-minorities of this universe, overlooked in a facially neutral Top Ten Percent Plan that considers only class rank. While outside the Top Ten Percent Plan's reach, they represent both high scholastic potential and high achievement in majority-white schools. We are persuaded that their absence would directly blunt efforts for a student body with a rich diversity of talents and experiences.
"Context matters when reviewing race-based governmental action under the Equal Protection Clause,"
In sum, it is suggested that while holistic review may be a necessary and ameliorating complement to the Top Ten Percent Plan, UT Austin has not shown that its holistic review need include any reference to race, this because the Plan produces sufficient numbers of minorities for critical mass. This contention views minorities as a group, abjuring the focus upon individuals — each person's unique potential. Race is relevant to minority and non-minority, notably when candidates have flourished as a minority in their school — whether they are white or black. Grutter reaffirmed that "[j]ust as growing up in a particular region or having particular professional experiences is likely to affect an individual's views, so too is one's own, unique experience of being a racial minority in a society, like our own, in which race still matters." We are persuaded that to deny UT Austin its limited use of race in its search for holistic diversity would hobble
It is settled that instruments of state may pursue facially neutral policies calculated to promote equality of opportunity among students to whom the public schools of Texas assign quite different starting places in the annual race for seats in its flagship university. It is equally settled that universities may use race as part of a holistic admissions program where it cannot otherwise achieve diversity. This interest is compelled by the reality that university education is more the shaping of lives than the filling of heads with facts — the classic assertion of the humanities. Yet the backdrop of our efforts here includes the reality that accepting as permissible policies whose purpose is to achieve a desired racial effect taxes the line between quotas and holistic use of race towards a critical mass. We have hewed this line here, persuaded by UT Austin from this record of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race, faithful to the content given to it by the Supreme Court. To reject the UT Austin plan is to confound developing principles of neutral affirmative action, looking away from Bakke and Grutter, leaving them in uniform but without command — due only a courtesy salute in passing.
For these reasons, we AFFIRM.
EMILIO M. GARZA, Circuit Judge, dissenting:
In vacating our previous opinion, Fisher v. Univ. of Tex. at Austin, 631 F.3d 213 (5th Cir.2011), the Supreme Court clarified the strict scrutiny standard as it applies to cases involving racial classifications in higher education admissions: Now, reviewing courts cannot defer to a state actor's argument that its consideration of race is narrowly tailored to achieve its diversity goals. Fisher v. Univ. of Tex. at Austin, ___ U.S. ___, 133 S.Ct. 2411, 2420, 186 L.Ed.2d 474 (2013). Although the University has articulated its diversity goal as a "critical mass," surprisingly, it has failed to define this term in any objective manner. Accordingly, it is impossible
By holding that the University's use of racial classifications is narrowly tailored, the majority continues to defer impermissibly to the University's claims. This deference is squarely at odds with the central lesson of Fisher. A proper strict scrutiny analysis, affording the University "no deference" on its narrow tailoring claims, compels the conclusion that the University's race-conscious admissions process does not survive strict scrutiny.
As a preliminary matter, Fisher has standing to pursue this appeal, but not because, as the majority contends, the Supreme Court's opinion does "not allow our reconsideration [of the issue of standing]." Ante, at 640.
Federal courts have an affirmative duty to verify jurisdiction before proceeding to the merits. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Although standing was actively contested before the Supreme Court, and although the Court's opinion is silent about the issue,
In our previous opinion, we held that Fisher had standing to "challenge [her] rejection and to seek money damages for [her] injury." Fisher, 631 F.3d at 217. Only one relevant fact has changed since then-in 2012, Fisher graduated from Louisiana State University. The University contends that by graduating, "her forward-looking request for relief became moot" because she could no longer seek reconsideration of her undergraduate application. Fisher's graduation does not alter our previous standing analysis because, as she correctly observes, that determination did not depend on a claim for forward-looking injunctive relief. Id. We held that Fisher had standing to seek nominal monetary damages, and we should reach the same conclusion now.
The University relies on Texas v. Lesage, 528 U.S. 18, 120 S.Ct. 467, 145 L.Ed.2d 347 (1999) (per curiam), for the proposition that Fisher lacks standing because she would not have been admitted regardless of her race. But even if Lesage is a standing case (which is a debatable premise — the case seems to address statutory liability under § 1983), it does not affect the outcome here. Lesage stands for the proposition that a plaintiff challenging governmental use of racial classifications cannot prevail if "it is undisputed that the government would have made the same decision regardless" of such use. Id. at 21, 120 S.Ct. 467 (emphasis added). The University asserts that Fisher would not have been admitted even if she had a "perfect" PAI score. The majority agrees. Ante, at 639 ("If [Fisher] had been a minority the result would have been the same."). While Fisher would have been denied admission during the 2008 admissions cycle even if she had a top PAI score, this is not the relevant inquiry. Rather, as Fisher explains, the proper question is whether she would have fallen above the admissions cut-off line if that line had been
The University further challenges Fisher's standing on redressability grounds. The University's theory is that even if Fisher had been admitted through the race-conscious admissions program, and had not suffered the injury of rejection, she still would have paid the non-refundable application fee. Thus, says the University, because the application fee has no causal link to her injury, any judicial relief would fail to provide redress. This argument misconstrues the nature of Fisher's alleged injury — it is not her rejection, but the denial of equal protection of the laws during the admissions decision process. Fisher correctly explains that the application fee represents nominal damages for the alleged constitutional harm stemming from the University's improper use of racial classifications.
Having confirmed our jurisdiction, our task is to apply strict scrutiny without any deference to the University's claims. Because Fisher effected a change in the law of strict scrutiny, and corrected our understanding of that test as applied in Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), I first review the current principles governing this "searching examination." Fisher, 133 S.Ct. at 2420.
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV. It is canonical that the Constitution treats distinctions between citizens based on their race or ethnic origin as suspect, see, e.g., Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 98 L.Ed. 884 (1954), and that the Equal Protection Clause "demands that racial classifications ... be subjected to the most rigid scrutiny," Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Thus, strict scrutiny begins from the fundamental proposition
When a state university makes race-conscious admissions decisions, those decisions are governed by the Equal Protection Clause, even though they may appear well-intended. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 297, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.). Simply put, the Constitution does not treat race-conscious admissions programs differently because their stated aim is to help, not to harm.
Under strict scrutiny, a university's use of racial classifications is constitutional only if necessary and narrowly tailored to further a compelling governmental interest. See Grutter, 539 U.S. at 326, 123 S.Ct. 2325. It is well-established that there is a compelling governmental interest in obtaining the educational benefits of a diverse student body. See Bakke, 438 U.S. at 311-12, 98 S.Ct. 2733 (holding that the "attainment of a diverse student body" is a "constitutionally permissible goal for an institution of higher education"). Grutter and Gratz v. Bollinger, 539 U.S. 244, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003), confirmed this. See Fisher, 133 S.Ct. at 2418.
Once a university has decided to pursue this compelling governmental interest, it must prove that the means chosen "to attain diversity are narrowly tailored to that goal." Fisher, 133 S.Ct. at 2420. In this, the strict scrutiny test takes the familiar form of a "means-to-ends" analysis: The compelling governmental interest is the ends, and the government program or law — here, the University's race-conscious admissions program — is the means. Strict scrutiny places the burden of proving narrow tailoring firmly with the government. See Johnson v. California, 543 U.S. 499, 505, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005). And, furthermore, narrow tailoring must be established "with clarity." Fisher, 133 S.Ct. at 2418.
In Fisher, the Supreme Court modified the narrow tailoring calculus applied in higher education affirmative action cases. While the overarching principles from Bakke, Gratz, and Grutter — that a university can have a compelling interest in attaining the educational benefits of diversity, and that its admissions program must be narrowly tailored to serve this interest — were taken "as given," id. at 2417-18, the Fisher Court altered the application of those principles in a critical way. Now, courts must give "no deference," to a state actor's assertion that its chosen "means... to attain diversity are narrowly tailored to that goal." Id. at 2420. In so doing, the Fisher Court embraced Justice Kennedy's position on "deference" from Grutter.
Because the higher-education affirmative action cases do not stand apart from "broader equal protection jurisprudence," Fisher, 133 S.Ct. at 2418, strict scrutiny must be applied with the same analytical rigor deployed in those other contexts. Put simply, there is no special form of strict scrutiny unique to higher education admissions decisions. Accordingly, we must now evaluate narrow tailoring by ensuring that "the means chosen `fit' the [compelling governmental interest] so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype." Croson, 488 U.S. at 493, 109 S.Ct. 706.
Of course, all of the above must be underscored by the principle that using racial classifications is permissible only as a "last resort to achieve a compelling interest." Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 790, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007) (Kennedy, J, concurring).
Here, the University has framed its goal as obtaining a "critical mass" of campus diversity. To uphold the use of race under strict scrutiny, courts must find narrow tailoring through a close "fit" between this goal and the admissions program's consideration of race.
The majority entirely overlooks the University's failure to define its "critical mass" objective for the purposes of assessing narrow tailoring. This is the crux of this case — absent a meaningful explanation of its desired ends, the University cannot prove narrow tailoring under its strict scrutiny burden. Indeed, the majority repeatedly invokes the term "critical mass" without even questioning its definition. See, e.g., ante, at 649 ("But minority representation then remained largely stagnant, within a narrow oscillating band, rather than moving towards a critical mass of minority students."); id. at 654 ("Achieving the critical mass requisite to diversity goes astray when it drifts to numerical metrics."); id. ("Fisher refuses to acknowledge this distinction between critical mass — the tipping point of diversity — and a quota."); id. at 656 ("Critical mass, the tipping point of diversity, has no fixed upper bound of universal application, nor is it the minimum threshold at which minority students do not feel isolated or like spokespersons for their race."). Under Fisher, it is not enough for a court to simply state, as does the majority, that it is not deferring to the University's narrow tailoring arguments. See, e.g., id., at 646 ("Affording no deference, we look for narrow tailoring...."). Rather, the reviewing court's actual analysis must demonstrate that "no deference" has been afforded. Fisher,
Certainly, as explained below, I agree that "critical mass" does not require a precise numerical definition. See infra note 11. But, to meet its narrow tailoring burden, the University must explain its goal to us in some meaningful way. We cannot undertake a rigorous ends-to-means narrow tailoring analysis when the University will not define the ends. We cannot tell whether the admissions program closely "fits" the University's goal when it fails to objectively articulate its goal. Nor can we determine whether considering race is necessary for the University to achieve "critical mass," or whether there are effective race-neutral alternatives, when it has not described what "critical mass" requires.
At best, the University's attempted articulations of "critical mass" before this court are subjective, circular, or tautological. See infra Part III.A. The University explains only that its "concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce." And, in attempting to address when it is likely to achieve critical mass, the University explains only that it will "cease its consideration of race when it determines ... that the educational benefits of diversity can be achieved at UT through a race-neutral policy...." These articulations are insufficient. Under the rigors of strict scrutiny, the judiciary must "verify that it is necessary for a university to use race to achieve the educational benefits of diversity." Fisher, 133 S.Ct. at 2420 (internal quotations omitted). It is not possible to perform this function when the University's objective is unknown, unmeasurable, or unclear.
The exacting scrutiny required by the Supreme Court's "broader equal protection jurisprudence" is entirely absent from today's opinion, which holds that the University has proven narrow tailoring even though it has failed to meaningfully articulate its diversity goals.
The University's failure to define meaningfully its "critical mass" objective is manifest in its various strict scrutiny arguments. The University claims that its use of racial classifications is necessary and narrowly tailored because (1) quantitative metrics reflect an inadequate minority presence; (2) qualitative diversity is lacking; (3) certain selective colleges are insufficiently diverse; (4) its periodic review demonstrates that its goals have not yet been achieved; and (5) its use of racial classifications is almost identical to that approved in Grutter.
First, while not defining its "critical mass" goal with reference to specific quantitative objectives, the University claims that quantitative metrics are relevant in measuring its progress. The University "based its critical mass determination on several data points, including hard data on minority admissions, enrollment, and racial isolation" and found that its use of racial classifications "does increase minority enrollment."
It is undeniable that the University admits only a small number of minority students under race-conscious holistic review. See Fisher, 631 F.3d at 262-63 (Garza, J., specially concurring). In 2008, the sole year at issue in this case, less than 20% of the class was evaluated under the race-conscious holistic review process. Even if we assume that all minority students who were admitted and enrolled in that year through the race-conscious holistic review process gained admission because of their race, this number is strikingly small — only 216 African-American and Hispanic students in an entering class of 6,322.
To be clear, I agree that a race-conscious admissions plan need not have a "dramatic or lopsided impact" on minority enrollment numbers to survive strict scrutiny, as the University reads Fisher's arguments to suggest. But neither can the University prove the necessity of its racial classification without meaningfully explaining how a small, marginal increase in minority admissions is necessary to achieving its diversity goals. Thus, neither the small (and decreasing) percentage of minority holistic-review admittees, nor minorities' "under-representation" in holistic review admissions relative to whites, taken alone,
Under the Equal Protection Clause, diversity cannot be assessed by strictly quantitative metrics, and, to the extent that numbers could be relevant in assessing "critical mass," the University leaves this relevance entirely unexplained.
The University advances a second understanding of "critical mass," which I will refer to as "qualitative." Under this theory, the University says its goal is not boosting minority enrollment numbers alone, but rather promoting the quality of minority enrollment-in short, diversity within diversity. The University submits that its race-conscious holistic review allows it to select for "other types of diversity" beyond race alone, and to identify the most "talented, academically promising, and well-rounded" minority students. According to the University, these are crucial "change agents" who debunk stereotypes but who may fall outside the top 10% of their high school classes.
As a preliminary matter, these stated ends are too imprecise to permit the requisite strict scrutiny analysis. The University has not provided any concrete targets for admitting more minority students possessing these unique qualitative-diversity characteristics — that is, the "other types of diversity" beyond race alone. At what point would this qualitative diversity target be achieved? Because its ends are unknown to us, the University cannot meet its strict scrutiny burden.
But, even accepting the University's broad and generic qualitative diversity ends, we cannot conclude that the race-conscious policy is constitutionally "necessary." The University has not shown that qualitative diversity is absent among the minority students admitted under the race-neutral Top Ten Percent Law, Tex. Educ.Code Ann. § 51.803 (West 2009). That is, the University does not evaluate the diversity present in this group before deploying racial classifications to fill the remaining seats. The University does not assess whether Top Ten Percent Law admittees exhibit sufficient diversity within diversity, whether the requisite "change agents" are among them, and whether these admittees are able, collectively or individually, to combat pernicious stereotypes. There is no such evaluation despite the fact that Top Ten Percent Law admittees also submit applications with essays, and are even assigned PAI scores for purposes of admission to individual schools.
In effect, the University asks this Court to assume that minorities admitted under
Regrettably, the majority firmly adopts this assumption — that minority students from majority-minority Texas high schools are inherently limited in their ability to contribute to the University's vision of a diverse student body.
Moreover, the only fact from which the majority draws this alarming conclusion is the mere reality that these districts serve majority-minority communities. Ante, at 650-51 ("The de facto segregation of schools in Texas enables the Top Ten Percent Law to increase minorities in the mix, while ignoring contributions to diversity beyond race.").
The record does not indicate that the University evaluates students admitted
In earlier stages of this case, the University framed its diversity goal as achieving "classroom diversity." The University suggested that classroom diversity and the distribution of minority students among colleges and majors were meaningful metrics in determining whether "critical mass" had been attained. And, indeed, the Supreme Court has recognized that increased diversity of perspectives in the classroom provides for a "livelier, more spirited, and simply more enlightening and interesting" experience. Grutter, 539 U.S. at 330, 123 S.Ct. 2325 (quoting Bakke, 438 U.S. at 307, 98 S.Ct. 2733). However, the University has distanced itself from this previously asserted goal, now claiming it "has never pursued classroom diversity as a discrete interest or endpoint," but merely as "one of many factors" to be considered in evaluating diversity. Given the University's failure to press the classroom diversity argument in its briefing on remand, the issue is almost certainly waived. See United States v. Griffith, 522 F.3d 607, 610 (5th Cir.2008) ("It is a well-worn principle that the failure to raise an issue on appeal constitutes waiver of that argument.").
Notwithstanding this waiver, the majority addresses the issue of classroom diversity, contending that the University's race-conscious admissions policy is necessary to give "high-scoring minority students a better chance of gaining admission to UT Austin's competitive academic departments." Ante, at 658. Perhaps, based on the structure of the University's admissions process, it is possible that the use of race as a factor in calculating an applicant's PAI score incrementally increases the odds that a minority applicant will be admitted to a competitive college within the University.
In short, the University has obscured its use of race to the point that even its own officers cannot explain the impact of race on admission to competitive colleges.
The University further claims that its race-conscious admissions program is narrowly tailored because, with the help of a rigorous periodic review system, it will "cease its consideration of race when it determines ... that the educational benefits of diversity can be achieved at [the University] through a race-neutral policy `at reasonable cost' to its other educational objectives." The University seeks to assure us that periodic review of its admissions policy considers enrollment data, "evidence of racial isolation and the racial climate on campus," and "other data including the educational benefits of diversity experienced in the classroom." In simple language, the University asserts that it knows critical mass when it sees it.
On one level, the University's review process captures the essence of the holistic diversity interest established in Bakke, validated in Grutter, and left intact by Fisher, See Ante at 643 ("Diversity is a composite of the backgrounds, experiences, achievements, and hardships of students to which race only contributes."). In fact, the Grutter Court discussed the important role that such reviews can play in determining whether racial classifications have continuing necessity under strict scrutiny. Grutter, 539 U.S. at 342, 123 S.Ct. 2325.
Nonetheless, there are two distinct flaws with the University's assurances that its own, internal, periodic review is sufficient to safeguard against any unconstitutional use of race. First, strict scrutiny does not allow the judiciary to delegate wholesale to state actors the task of determining whether a race-conscious admissions policy continues to be necessary. This is the very point made by the Fisher Court, in vacating our previous opinion for deferring to the University's narrow-tailoring claims. Fisher, 133 S.Ct. at 2420-21.
Second, while the University correctly considers a range of factors in its assessment of the necessity of its use of race, see Bakke, 438 U.S. at 315, 98 S.Ct. 2733 (describing diversity as a "broader array of qualifications and characteristics" of which race is only one), it has still not explained to us how this consideration takes place. In describing its periodic review process, the University never explains how the various factors are measured, the weight afforded to each, and what combination thereof would yield a "critical mass" of diversity sufficient to cease use of racial classifications.
In light of this, I cannot determine that the race-conscious admissions program is narrowly tailored to the University's goal. The University, in effect, defines critical mass as a nebulous amalgam of factors — enrollment data, racial isolation, racial climate, and "the educational benefits of diversity" — that its internal periodic review is calibrated to detect. But, without more, the University fails to prove narrow tailoring with clarity. Fisher, 133 S.Ct. at 2418. Such a bare submission, in essence, begs for the deference that is irreconcilable with "meaningful" judicial review. Id. at 2421.
Lastly, the University submits that its race-conscious admissions policy necessarily satisfies narrow tailoring because it is closely modeled on the admissions program upheld by the Supreme Court in Grutter. Similarly, the majority implies that the race-conscious admissions policy's similarity to Grutter is, itself, a meaningful factor in our strict scrutiny analysis.
Certain aspects of the University's admissions policy do parallel the features of the plan upheld in Grutter — race is only a sub-factor within a holistic, individualized review process, and the University's goal is framed in terms of "critical mass." But the University, under mandate by the Texas Legislature's Top Ten Percent Law, admits the majority of its entering class through a separate, race-neutral scheme.
Similarity to Grutter is not a narrow-tailoring talisman that insulates the University's policy from strict scrutiny. The University's burden is to prove that its own use of racial classifications is necessary and narrowly tailored for achieving its own diversity objectives.
Ultimately, the record is devoid of any specifically articulated connection between the University's diversity goal of "critical mass" and its race-conscious admissions process. The University has not shown how it determines the existence, or lack, of a "critical mass" of diversity in its student population. Rather, the University only frames its goal as "obtaining the educational benefits of diversity." This is entirely circular reasoning that cannot satisfy the rigorous means-to-ends analysis required under strict scrutiny. Fisher, 133 S.Ct. at 2421.
To be clear, my concern is not with the University's use of the term "critical mass" itself. Even if the University were to adopt another rhetorical construct to explain its diversity objectives, it faces the same underlying problem — it does not offer a clear and definite articulation of its goal sufficient for a reviewing court to verify narrow tailoring. The University's failure to meet its strict scrutiny burden is
The majority concludes that the University's race-conscious admissions program is narrowly tailored because the University has exhausted all workable alternatives. Ante, at 660. Much of today's opinion explores the historical "narrative" of the University's admissions process, including many race-neutral recruitment programs intended to bolster minority enrollment. Id. at 645. And, indeed, the University's many efforts to achieve a diverse campus learning environment without resorting to racial classifications are commendable. But, framing this history as something akin to a process of elimination, the majority finds that the University's race-conscious admissions program must be necessary and narrowly tailored to the University's diversity objectives. This is insufficient to satisfy strict scrutiny.
Certainly, the University's past experiences with race-neutral initiatives are relevant to the inquiry because the University must establish that "no workable race-neutral alternatives would produce the educational benefits of diversity," and because the University's "experience and expertise" provide some context to inform judicial review. Fisher, 133 S.Ct. at 2420. However, we cannot conclude that the University's current race-conscious admissions program — the only matter before this court — is narrowly tailored to achieve the educational benefits of diversity because the University has failed to define what it means by "critical mass." In other words, the University's long history of purportedly unsuccessful alternatives is meaningless if we cannot discern the contours of the success it now seeks.
Additionally, the majority's sustained focus on the Top Ten Percent Law is misplaced. While the Law is indeed central to this case, here, as in our previous consideration of this appeal, "[n]o party challenged, in the district court or in this court, the validity or the wisdom of the Top Ten Percent Law." Fisher, 631 F.3d at 247 (King, J., specially concurring). Nevertheless, the majority forcefully indicts the Law for frustrating the University's efforts to achieve well-rounded diversity. In the majority's view, the Law's shortcomings make a holistic review program more necessary. Ante, at 654 ("We are persuaded that holistic review is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system...."). At most, the Law's mechanical operation — admitting students based on the sole metric of high school class rank — might suggest that some form of holistic review is advisable to supplement the admissions process. But this issue is not before us at all. Our task is to determine whether the University's injection of race into its admissions process survives strict scrutiny.
The Top Ten Percent Law matters only insofar as it causes the University to admit a large number of minority students separate and apart from the holistic review process. That is, the Law creates a separate admissions channel for many minority students, which then calls into question the necessity of using race as a factor in the holistic review process for filling the remaining seats. Whether, in light of the Top Ten Percent Law, race-conscious holistic review is more or less necessary is an open question, and it is the University that bears the burden of explaining how the Law impacts its achievement of its diversity goal. Here, it has failed to do so, under any theory of "critical mass" it has proffered.
The material facts of this case have remained unchanged since the district court's grant of summary judgment, but the governing law has changed markedly. Fisher established that strict scrutiny in the higher education affirmative action setting is no different than strict scrutiny in other equal protection contexts — the state actor receives no deference in proving that its chosen race-conscious means are narrowly tailored to its ends. The majority fails to give Fisher its proper weight. Today's opinion sidesteps the new strict scrutiny standard and continues to defer to the University's claims that its use of racial classifications is narrowly tailored to its diversity goal. Because the University has not defined its diversity goal in any meaningful way — instead, reflexively reciting the term "critical mass" — it is altogether impossible to determine whether its use of racial classifications is narrowly tailored.
This is not to say, however, that it is impossible for a public university to define its diversity ends adequately for a court to verify narrow tailoring with the requisite exacting scrutiny. After all, "[s]trict scrutiny must not be strict in theory but fatal in fact." Fisher, 133 S.Ct. at 2421 (internal quotations omitted). It may even be possible for a university to do so while seeking a "critical mass." What matters now, after Fisher, is that a state actor's diversity goals must be sufficiently clear and definite such that a reviewing court can assess, without deference, whether its particular use of racial classifications is necessary and narrowly tailored to those goals. On this record, the University has not "offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity." Fisher, 133 S.Ct. at 2421. Accordingly, I would reverse and render judgment for Fisher.
I respectfully dissent.
