SUPREME COURT OF THE UNITED STATES
_________________
No. 14–981
_________________
ABIGAIL NOEL FISHER, PETITIONER
v.
UNIVERSITY OF TEXAS AT AUSTIN, et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 23, 2016]
Justice Alito, with whom The Chief Justice and
Justice Thomas join, dissenting.
Something strange has happened since our prior
decision in this case. See
Fisher v.
University of Tex.
at Austin, 570 U. S. ___ (2013) (
Fisher I). In that
decision, we held that strict scrutiny requires the University of
Texas at Austin (UT or University) to show that its use of race and
ethnicity in making admissions decisions serves compelling
interests and that its plan is narrowly tailored to achieve those
ends. Rejecting the argument that we should defer to UT’s judgment
on those matters, we made it clear that UT was obligated (1) to
identify the interests justifying its plan with enough specificity
to permit a reviewing court to determine whether the requirements
of strict scrutiny were met, and (2) to show that those
requirements were in fact satisfied. On remand, UT failed to do
what our prior decision demanded. The University has still not
identified with any degree of specificity the interests that its
use of race and ethnicity is supposed to serve. Its primary
argument is that merely invoking “the educational benefits of
diversity” is sufficient and that it need not identify any metric
that would allow a court to determine whether its plan is needed to
serve, or is actually serving, those interests. This is nothing
less than theplea for deference that we emphatically rejected in
our prior decision. Today, however, the Court inexplicably grants
that request.
To the extent that UT has ever moved beyond a
plea for deference and identified the relevant interests in more
specific terms, its efforts have been shifting, unpersuasive, and,
at times, less than candid. When it adopted its race-based plan, UT
said that the plan was needed to promote classroom diversity. See
Supp. App. 1a, 24a–25a, 39a; App. 316a. It pointed to a study
showing that African-American, Hispanic, and Asian-American
students were underrepresented in many classes. See Supp. App. 26a.
But UT has never shown that its race-conscious plan actually
ameliorates this situation. The University presents no evidence
that its admissions officers, in administering the “holistic”
component of its plan, make any effort to determine whether an
African-American, Hispanic, or Asian-American student is likely to
enroll in classes in which minority students are underrepresented.
And although UT’s records should permit it to determine without
much difficulty whether holistic admittees are any more likely than
students admitted through the Top Ten Percent Law, Tex. Educ. Code
Ann. §51.803 (West Cum. Supp. 2015), to enroll in the classes
lacking racial or ethnic diversity, UT either has not crunched
those numbers or has not revealed what they show. Nor has UT
explained why the underrepresentation of Asian-American students in
many classes justifies its plan, which discriminates
against
those students.
At times, UT has claimed that its plan is needed
to achieve a “critical mass” of African-American and His-panic
students, but it has never explained what this term means.
According to UT, a critical mass is neither some absolute number of
African-American or Hispanic students nor the percentage of
African-Americans or Hispanics in the general population of the
State. The term remains undefined, but UT tells us that it will let
the courts know when the desired end has been achieved. See App.
314a–315a. This is a plea for deference—indeed, for blind
deference—the very thing that the Court rejected in
Fisher
I.
UT has also claimed at times that the race-based
component of its plan is needed because the Top Ten Percent Plan
admits
the wrong kind of African-American and Hispanic
students, namely, students from poor families who attend schools in
which the student body is predominantly African-American or
Hispanic. As UT put it in its brief in
Fisher I, the
race-based component of its admissions plan is needed to admit
“[t]he African-American or Hispanic child of successful
professionals in Dallas.” Brief for Respondents, O. T. 2012, No.
11–345, p. 34.
After making this argument in its first trip to
this Court, UT apparently had second thoughts, and in the latest
round of briefing UT has attempted to disavow ever having made the
argument. See Brief for Respondents 2 (“Petitioner’s argument that
UT’s interest is favoring ‘affluent’ minorities is a fabrication”);
see also
id., at 15. But it did, and the argument turns
affirmative action on its head. Affirmative-action programs were
created to help
disadvantaged students.
Although UT now disowns the argument that the
Top Ten Percent Plan results in the admission of the wrong kind of
African-American and Hispanic students, the Fifth Circuit majority
bought a version of that claim. As the panel majority put it, the
Top Ten African-American and Hispanic admittees cannot match the
holistic African-American and Hispanic admittees when it comes to
“records of personal achievement,” a “variety of perspectives” and
“life experiences,” and “unique skills.” 758 F. 3d 633, 653
(2014). All in all, according to the panel majority, the Top Ten
Percent students cannot “enrich the diversity of the student body”
in the same way as the holistic admittees.
Id., at 654. As
Judge Garza put it in dissent, the panel majority concluded that
the Top Ten Percent admittees are “somehow more homogenous, less
dynamic, and more undesirably stereotypical than those admitted
under holistic review.”
Id., at 669–670 (Garza, J.,
dissenting).
The Fifth Circuit reached this conclusion with
little direct evidence regarding the characteristics of the Top Ten
Percent and holistic admittees. Instead, the assumption behind the
Fifth Circuit’s reasoning is that most of the African-American and
Hispanic students admitted under the race-neutral component of UT’s
plan were able to rank in the top decile of their high school
classes only because they did not have to compete against white and
Asian-American students. This insulting stereotype is not supported
by the record. African-American and Hispanic students admitted
under the Top Ten Percent Plan receive higher college grades than
the African-American and Hispanic students admitted under the
race-conscious program. See Supp. App. 164a–165a.
It should not have been necessary for us to
grant review a second time in this case, and I have no greater
desire than the majority to see the case drag on. But that need not
happen. When UT decided to adopt its race-conscious plan, it had
every reason to know that its plan would have to satisfy strict
scrutiny and that this meant that it would be
its burden to
show that the plan was narrowly tailored to serve compelling
interests. UT has failed to make that showing. By all rights,
judgment should be entered in favor of petitioner.
But if the majority is determined to give UT yet
another chance, we should reverse and send this case back to the
District Court. What the majority has now done—awarding a victory
to UT in an opinion that fails to address the important issues in
the case—is simply wrong.
I
Over the past 20 years, UT has frequently
modified its admissions policies, and it has generally employed
race and ethnicity in the most aggressive manner permitted under
controlling precedent.
Before 1997, race was considered directly as
part of the general admissions process, and it was frequently a
controlling factor. Admissions were based on two criteria:
(1) the applicant’s Academic Index (AI), which was computed
from standardized test scores and high school class rank, and (2)
the applicant’s race. In 1996, the last year this race-conscious
system was in place, 4.1% of enrolled freshmen were
African-American, 14.7% were Asian-American, and 14.5% were
Hispanic. Supp. App. 43a.
The Fifth Circuit’s decision in
Hopwood
v.
Texas, 78 F. 3d 932 (1996), prohibited UT from using
race in admissions. In response to
Hopwood, beginning with
the 1997 admissions cycle, UT instituted a “holistic review”
process in which it considered an applicant’s AI as well as a
Personal Achievement Index (PAI) that was intended, among other
things, to increase minority enrollment. The race-neutral PAI was a
composite of scores from two essays and a personal achievement
score, which in turn was based on a holistic review of an
applicant’s leadership qualities, extracurricular activities,
honors and awards, work experience, community service, and special
circumstances. Special consideration was given to applicants from
poor families, applicants from homes in which a language other than
English was customarily spoken, and applicants from single-parent
households. Because this race-neutral plan gave a preference to
disadvantaged students, it had the effect of “disproportionately”
benefiting minority candidates. 645 F. Supp. 2d 587, 592 (WD
Tex. 2009).
The Texas Legislature also responded to
Hopwood. In 1997, it enacted the Top Ten Percent Plan, which
man-dated that UT admit all Texas seniors who rank in the top 10%
of their high school classes. This facially race-neutral law served
to equalize competition between students who live in relatively
affluent areas with superior schools and students in poorer areas
served by schools offering fewer opportunities for academic
excellence. And by benefiting the students in the latter group,
this plan, like the race-neutral holistic plan already adopted by
UT, tended to benefit African-American and Hispanic students, who
are often trapped in inferior public schools. 758 F. 3d, at
650–653.
Starting in 1998, when the Top Ten Percent Plan
took effect, UT’s holistic, race-neutral AI/PAI system continued to
be used to fill the seats in the entering class that were not taken
by Top Ten Percent students. The AI/PAI system was also used to
determine program placement forall incoming students, including the
Top Ten Percent students.
“The University’s revised admissions process,
coupled with the operation of the Top Ten Percent Law, resulted in
a more racially diverse environment at the University.”
Fisher
I, 570 U. S., at ___ (slip op., at 3). In 2000, UT
announced that its “enrollment levels for African American and
Hispanic freshmen have returned to those of 1996, the year before
the
Hopwood decision prohibited the consideration of race in
admissions policies.” App. 393a; see also Supp. App. 23a–24a
(pre-
Hopwood diversity levels were “restored” in 1999); App.
392a–393a (“The ‘Top 10 Percent Law’ is Working for Texas” and “has
enabled us to diversify enrollment at UT Austin with talented
students who succeed”). And in 2003, UT proclaimed that it had
“effectively compensated for the loss of affirmative action.”
Id., at 396a; see also
id., at 398a (“Diversity
efforts at The University of Texas at Austin have brought a higher
number of freshman minority students—African Americans, Hispanics
and Asian-Americans—to the campus than were enrolled in 1996, the
year a court ruling ended the use of affirmative action in the
university’s enrollment process”). By 2004—the last year under the
holistic, race-neutral AI/PAI system—UT’s entering class was 4.5%
African-American, 17.9% Asian-American, and 16.9% Hispanic. Supp.
App. 156a. The 2004 entering class thus had a higher percentage of
African-Americans, Asian-Americans, and Hispanics than the class
that entered in 1996, when UT had last employed racial
preferences.
Notwithstanding these lauded results, UT leapt
at the opportunity to reinsert race into the process. On June 23,
2003, this Court decided
Grutter v.
Bollinger, 539
U. S. 306 (2003) , which upheld the University of Michigan Law
School’s race-conscious admissions system. In
Grutter, the
Court warned that a university contemplating the consideration of
race as part of its admissions process must engage in “serious,
good faith consideration of workable race-neutral alternatives that
will achieve the diversity the university seeks.”
Id., at
339. Nevertheless,
on the very day Grutter was handed down,
UT’s president announced that “[t]he University of Texas at Austin
will modify its admissions procedures” in light of
Grutter, including by “implementing procedures at the
undergraduate level that combine the benefits of the Top 10 Percent
Law with affirmative action programs.” App. 406a–407a (emphasis
added).[
1] UT purports to have
later engaged in “almost a year of deliberations,”
id., at
482a, but there is no evidence that the reintroduction of race into
the admissions process was anything other than a foregone
conclusion following the president’s announcement.
“The University’s plan to resume race-conscious
admissions was given formal expression in June 2004 in an internal
document entitled Proposal to Consider Race and Ethnicity in
Admissions” (Proposal).
Fisher I,
supra, at ___ (slip
op., at 4). The Proposal stated that UT needed race-conscious
admissions because it had not yet achieved a “critical mass of
racial diversity.” Supp. App. 25a. In support of this claim, UT
cited two pieces of evidence. First, it noted that there were
“significant differences between the racial and ethnic makeup of
the University’s undergraduate population and the state’s
population.”
Id., at 24a. Second, the Proposal “relied in
substantial part,”
Fisher I,
supra, at ___ (slip op.,
at 4), on a study of a subset of undergraduate classes containing
at least five students, see Supp. App. 26a. The study showed that
among select classes with five or more students, 52% had no
African-Americans, 16% had no Asian-Americans, and 12% had no
Hispanics.
Ibid. Moreover, the study showed, only 21% of
these classes had two or more African-Americans, 67% had two or
more Asian-Americans, and 70% had two or more Hispanics. See
ibid. Based on this study, the Proposal concluded that UT
“has not reached a critical mass at the classroom level.”
Id., at 24a. The Proposal did not analyze the backgrounds,
life experiences, leadership qualities, awards, extracurricular
activities, community service, personal attributes, or other
characteristics of the minority students who were already being
admitted to UT under the holistic, race-neutral process.
“To implement the Proposal the University
included a student’s race as a component of the PAI score,
beginning with applicants in the fall of 2004.”
Fisher I,
570 U. S., at ___ (slip op., at 4). “The University asks
students to classify themselves from among five predefined racial
categories on the application.”
Ibid. “Race is not assigned
an explicit numerical value, but it is undisputed that race is a
meaningful factor.”
Ibid. UT decided to use racial
preferences to benefit African-American and Hispanic students
because it considers those groups “underrepresented minorities.”
Supp. App. 25a; see also App. 445a–446a (defining “underrepresented
minorities” as “Hispanic[s] and African Americans”). Even though
UT’s classroom study showed that more classes lacked Asian-American
students than lacked Hispanic students, Supp. App. 26a, UT deemed
Asian-Americans “
overrepresented” based on state
demographics, 645 F. Supp. 2d, at 606; see also
ibid.
(“It is undisputed that UT considers African-Americans and
Hispanics to be underrepresented but does not con-sider
Asian-Americans to be underrepresented”).
Although UT claims that race is but a “factor of
a factor of a factor of a factor,”
id., at 608, UT
acknowledges that “race is the only one of [its] holistic factors
that appears on the cover of every application,” Tr. of Oral Arg.
54 (Oct. 10, 2012). “Because an applicant’s race is identified at
the front of the admissions file, reviewers are aware of it
throughout the evaluation.” 645 F. Supp. 2d, at 597; see also
id., at 598 (“[A] candidate’s race is known throughout the
application process”). Consideration of race therefore pervades
every aspect of UT’s admissions process. See App. 219a (“We are
certainly aware of the applicant’s race. It’s on the front page of
the application that’s being read [and] is used in context with
everything else that’s part of the applicant’s file”). This is by
design, as UT considers its use of racial classifications to be a
benign form of “social engineering.” Powers, Why Schools Still Need
Affirmative Action, National L. J., Aug. 4, 2014, p. 22 (editorial
by Bill Powers, President of UT from 2006–2015) (“Opponents accuse
defenders of race-conscious admissions of being in favor of ‘social
engineering,’ to which I believe we should reply, ‘Guilty as
charged’ ”).
Notwithstanding the omnipresence of racial
classifications, UT claims that it keeps no record of how those
classifications affect its process. “The university doesn’t keep
any statistics on how many students are affected by the
consideration of race in admissions decisions,” and it “does not
know how many minority students are affected in a positive manner
by the consideration of race.” App. 337a. According to UT, it has
no way of making these determinations. See
id., at
320a–322a. UT says that it does not tell its admissions officers
how much weight to give to race. See Deposition of Gary Lavergne
43–45, Record in No. 1:08–CV–00263 (WD Tex.), Doc. 94–9 (Lavergne
Deposition). And because the influence of race is always
“contextual,” UT claims, it cannot provide even a single example of
an instance in which race impacted a student’s odds of admission.
See App. 220a (“Q. Could you give me an example where race would
have some impact on an applicant’s personal achievement score? A.
To be honest, not really . . . . [I]t’s impossible
to say—to give you an example of a particular student because it’s
all context-ual”). Accordingly, UT asserts that it has no idea
which students were admitted as a result of its race-conscious
system and which students would have been admitted under a
race-neutral process. UT thus makes no effort to assess how the
individual characteristics of students admitted as the result of
racial preferences differ (or do not differ) from those of students
who would have been admitted without them.
II
UT’s race-conscious admissions program cannot
satisfy strict scrutiny. UT says that the program furthers its
interest in the educational benefits of diversity, but it has
failed to define that interest with any clarity or to demonstrate
that its program is narrowly tailored to achieve that or any other
particular interest. By accepting UT’s rationales as sufficient to
meet its burden, the majority licenses UT’s perverse assumptions
about different groups of minority students—the precise assumptions
strict scrutiny is supposed to stamp out.
A
“The moral imperative of racial neutrality is
the driving force of the Equal Protection Clause.”
Richmond
v.
J. A. Croson Co., 488 U. S. 469, 518 (1989)
(Kennedy, J., concurring in part and concurring in judgment). “At
the heart of the Constitution’s guarantee of equal protection lies
the simple command that the Government must treat citizens as
individuals, not as simply components of a racial, religious,
sexual or national class.”
Miller v.
Johnson, 515
U. S. 900, 911 (1995) (internal quotation marks omitted).
“Race-based assignments embody stereotypes that treat individuals
as the product of their race, evaluating their thoughts and
efforts—their very worth as citizens—according to a criterion
barred to the Government by history and the Constitution.”
Id., at 912 (internal quotation marks omitted). Given our
constitutional commitment to “the doctrine of equality,”
“ ‘[d]istinctions between citizens solely because of their
ancestry are by their very nature odious to a free people.’ ”
Rice v.
Cayetano, 528 U. S. 495, 517 (2000)
(quoting
Hirabayashi v.
United States, 320 U. S.
81, 100 (1943) ).
“[B]ecause racial characteristics so seldom
provide a relevant basis for disparate treatment, the Equal
Protection Clause demands that racial classifications
. . . be subjected to the most rigid scrutiny.”
Fisher
I, 570 U. S., at ___ (slip op., at 8) (internal quotation
marks and citations omitted). “[J]udicial review must begin from
the position that ‘any official action that treats a person
differently on account of his race or ethnic origin is inher-ently
suspect.’ ”
Ibid.; see also
Grutter, 539
U. S., at 388 (Kennedy, J., dissenting) (“ ‘Racial and
ethnic distinctions of any sort are inherently suspect and thus
call for the most exacting judicial examination’ ”). Under
strict scrutiny, the use of race must be “necessary to further a
compelling governmental interest,” and the means employed must be
“ ‘specifically and narrowly’ ” tailored to accomplish
the compelling interest.
Id., at 327, 333 (O’Connor, J., for
the Court).
The “higher education dynamic does not change”
this standard.
Fisher I,
supra, at ___ (slip op., at
12). “Racial discrimination [is] invidious in all contexts,”
Edmonson v.
Leesville Concrete Co., 500 U. S.
614, 619 (1991) , and “ ‘[t]he analysis and level of scrutiny
applied to determine the validity of [a racial] classification do
not vary simply because the objective appears acceptable,’ ”
Fisher I,
supra, at ___ (slip op., at 12).
Nor does the standard of review “ ‘depen[d]
on the race of those burdened or benefited by a particular
classification.’ ”
Gratz v.
Bollinger, 539
U. S. 244, 270 (2003) (quoting
Adarand Constructors,
Inc. v.
Peña, 515 U. S. 200, 224 (1995) ); see also
Miller,
supra, at 904 (“This rule obtains with equal
force regardless of ‘the race of those burdened or benefited by a
particular classification’ ” (quoting
Croson,
supra, at 494 (plurality opinion of O’Connor, J.)). “Thus,
‘any person, of whatever race, has the right to demand that any
governmental actor subject to the Constitution justify any racial
classification subjecting that person to unequal treatment under
the strictest of judicial scrutiny.’ ”
Gratz,
supra, at 270 (quoting
Adarand,
supra, at
224).
In short, in “all contexts,”
Edmonson,
supra, at 619, racial classifications are permitted only “as
a last resort,” when all else has failed,
Croson,
supra, at 519 (opinion of Kennedy, J.). “Strict scrutiny is
a searching examination, and it is the government that bears the
burden” of proof.
Fisher I, 570 U. S., at ___ (slip
op., at 8). To meet this burden, the government must “demonstrate
with clarity that its ‘purpose or interest is both
constitutionally permissible and substantial, and that its use of
the classification is necessary . . . to the
accomplishment of its purpose.’ ”
Id., at ___ (slip
op., at 7) (emphasis added).
B
Here, UT has failed to define its interest in
using racial preferences with clarity. As a result, the narrow
tailoring inquiry is impossible, and UT cannot satisfy strict
scrutiny.
When UT adopted its challenged policy, it
characterized its compelling interest as obtaining a
“ ‘critical mass’ ” of underrepresented minorities.
Id., at ___ (slip op., at 1). The 2004 Proposal claimed that
“[t]he use of race-neutral policies and programs has not been
successful in achieving a critical mass of racial diversity.” Supp.
App. 25a; see
Fisher v.
University of Tex. at Austin,
631 F. 3d 213, 226 (CA5 2011) (“[T]he
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”). But to this day, UT has not
explained in anything other than the vaguest terms what it means by
“critical mass.” In fact, UT argues that it need not identify
any interest more specific than “securing the educational
benefits of diversity.” Brief for Respondents 15.
UT has insisted that critical mass is not an
absolute number. See Tr. of Oral Arg. 39 (Oct. 10, 2012) (declaring
that UT is not working toward any particular number of
African-American or Hispanic students); App. 315a (confirming that
UT has not defined critical mass as a number and has not projected
when it will attain critical mass). Instead, UT prefers a
deliberately malleable “we’ll know it when we see it” notion of
critical mass. It defines “critical mass” as “an adequate
representation of minority students so that the . . .
educational benefits that can be derived from diversity can
actually happen,” and it declares that it “will . . .
know [that] it has reached critical mass” when it “see[s] the
educational benefits happening.”
Id., at 314a–315a. In other
words: Trust us.
This intentionally imprecise interest is
designed to insulate UT’s program from meaningful judicial review.
As Judge Garza explained:
“[T]o 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.” 758 F. 3d, at 667 (dissenting opinion).
Indeed, without knowing in reasonably specific
terms what critical mass is or how it can be measured, a reviewing
court cannot conduct the requisite “careful judicial inquiry” into
whether the use of race was “ ‘necessary.’ ”
Fisher
I,
supra, at ___ (slip op., at 10).
To be sure, I agree with the majority that our
precedents do not require UT to pinpoint “an interest in enrolling
a certain number of minority students.”
Ante, at 11. But in
order for us to assess whether UT’s program is narrowly tailored,
the University must identify
some sort of concrete interest.
“Classifying and assigning” students according to race “requires
more than . . . an amorphous end to justify it.”
Parents Involved in Community Schools v.
Seattle School
Dist. No. 1, 551 U. S. 701, 735 (2007) . Because UT has
failed to explain “with clarity,”
Fisher I,
supra, at
___ (slip op., at 7), why it needs a race-conscious policy and how
it will know when its goals have been met, the narrow tailoring
analysis cannot be meaningfully conducted. UT therefore cannot
satisfy strict scrutiny.
The majority acknowledges that “asserting an
interest in the educational benefits of diversity writ large is
insufficient,” and that “[a] university’s goals cannot be elusory
or amorphous—they must be sufficiently measurable to permit
judicial scrutiny of the policies adopted to reach them.”
Ante, at 12. According to the majority, however, UT has
articulated the following “concrete and precise goals”: “the
destruction of stereotypes, the promot[ion of ] cross-racial
understanding, the preparation of a student body for an
increasingly diverse workforce and society, and the cultivat[ion
of] a set of leaders with legitimacy in the eyes of the citizenry.”
Ibid. (internal quotation marks omitted).
These are laudable goals, but they are not
concrete or precise, and they offer no limiting principle for the
use of racial preferences. For instance, how will a court ever be
able to determine whether stereotypes have been adequately
destroyed? Or whether cross-racial understanding has been
adequately achieved? If a university can justify racial
discrimination simply by having a few employees opine that racial
preferences are necessary to accomplish these nebulous goals, see
ante, at 12–13 (citing
only self-serving statements
from UT officials), then the narrow tailoring inquiry is
meaningless. Courts will be required to defer to the judgment of
university administrators, and affirmative-action policies will be
completely insulated from judicial review.
By accepting these amorphous goals as sufficient
for UT to carry its burden, the majority violates decades of
precedent rejecting blind deference to government officials
defending “ ‘inherently suspect’ ” classifications.
Miller, 515 U. S., at 904 (citing
Regents of Univ.
of Cal. v.
Bakke, 438 U. S. 265, 291 (1978)
(opinion of Powell, J.)); see also,
e.g., Miller,
supra, at 922 (“Our presumptive skepticism of all racial
classifications . . . prohibits us . . . from
accepting on its face the Justice Department’s conclusion”
(citation omitted));
Croson, 488 U. S., at 500 (“[T]he
mere recitation of a ‘benign’ or legitimate purpose for a racial
classification is entitled to little or no weight”);
id., at
501 (“The history of racial classifications in this country
suggests that blind judicial deference to legislative or executive
pronouncements of necessity has no place in equal protection
analysis”). Most troublingly, the majority’s uncritical deference
to UT’s self-serving claims blatantly contradicts our decision in
the prior iteration of this very case, in which we faulted the
Fifth Circuit for improperly “deferring to the University’s good
faith in its use of racial classifications.”
Fisher I, 570
U. S., at ___ (slip op., at 12). As we emphasized just three
years ago, our precedent “ma[kes] clear that it is for the courts,
not for university administrators, to ensure that” an admissions
process is narrowly tailored.
Id., at ___ (slip op., at
10).
A court cannot ensure that an admissions process
is narrowly tailored if it cannot pin down the goals that the
process is designed to achieve. UT’s vague policy goals are “so
broad and imprecise that they cannot withstand strict scrutiny.”
Parents Involved,
supra, at 785 (Kennedy, J.,
concurring in part and concurring in judgment).
C
Although UT’s primary argument is that it need
not point to any interest more specific than “the educational
benefits of diversity,” Brief for Respondents 15, it has—at various
points in this litigation—identified four more specific goals:
demographic parity, classroom diversity, intraracial diversity, and
avoiding racial isolation. Neither UT nor the majority has
demonstrated that any of these four goals provides a sufficient
basis for satisfying strict scrutiny. And UT’s arguments to the
contrary depend on a series of invidious assumptions.
1
First, both UT and the majority cite
demographic data as evidence that African-American and Hispanic
students are “underrepresented” at UT and that racial preferences
are necessary to compensate for this underrepresentation. See,
e.g., Supp. App. 24a;
ante, at 14. But neither UT nor
the majority is clear about the relationship between Texas
demographics and UT’s interest in obtaining a critical mass.
Does critical mass depend on the relative size
of a particular group in the population of a State? For example, is
the critical mass of African-Americans and Hispanics in Texas,
where African-Americans are about 11.8% of the population and
Hispanics are about 37.6%, different from the critical mass in
neighboring New Mexico, where the African-American population is
much smaller (about 2.1%) and the Hispanic population constitutes a
higher percentage of the State’s total (about 46.3%)? See United
States Census Bureau, QuickFacts, online at
https://www.census.gov/quickfacts/table/PST045215/35,48 (all
Inter-net materials as last visited June 21, 2016).
UT’s answer to this question has veered back and
forth. At oral argument in
Fisher I, UT’s lawyer indicated
that critical mass “could” vary “from group to group” and from
“state to state.” See Tr. of Oral Arg. 40 (Oct. 10, 2012). And UT
initially justified its race-conscious plan at least in part on the
ground that “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.” Supp. App. 24a; see also
id., at 16a (“[A]
critical mass in Texas is necessarily larger than a critical mass
in Michigan,” because “[a] majority of the college-age population
in Texas is African American or Hispanic”);
Fisher, 631
F. 3d, at 225–226, 236 (concluding that UT’s reliance on Texas
demographics reflects “measured attention to the community it
serves”); Brief for Respondents in No. 11–345, at 41 (noting
that critical mass may hinge, in part, on “the communities that
universities serve”). UT’s extensive reliance on state demographics
is also revealed by its substantial focus on increasing the
representation of Hispanics, but not Asian-Americans, see,
e.g., 645 F. Supp. 2d, at 606; Supp. App. 25a; App.
445a–446a, because Hispanics, but not Asian-Americans, are
underrepre-sented at UT when compared to the demographics of the
State.[
2]
On the other hand, UT’s counsel asserted that
the critical mass for the University is “not at all” dependent on
the demographics of Texas, and that UT’s “concept [of] critical
mass isn’t tied to demographic[s].” Tr. of Oral Arg. 40, 49 (Oct.
10, 2012). And UT’s
Fisher I brief expressly agreed that “a
university cannot look to racial demographics—and then work
backward in its admissions process to meet a target tied to such
demographics.” Brief for Respondents in No. 11–345, at 31; see
also Brief for Respondents 26–27 (disclaiming any interest in
demographic parity).
To the extent that UT is pursuing parity with
Texas demographics, that is nothing more than “outright racial
balancing,” which this Court has time and again held “patently
unconstitutional.”
Fisher I, 570 U. S., at ___ (slip
op., at 9); see
Grutter, 539 U. S., at 330 (“[O]utright
racial balancing . . . is patently unconstitutional”);
Freeman v.
Pitts, 503 U. S. 467, 494 (1992)
(“Racial balance is not to be achieved for its own sake”);
Croson, 488 U. S., at 507 (rejecting goal of “outright
racial balancing”);
Bakke, 438 U. S., at 307 (opinion
of Powell, J.) (“If petitioner’s purpose is to assure within its
student body some specified percentage of a particular group merely
because of its race or ethnic origin, such a preferential purpose
must be rejected . . . as facially invalid”). An interest
“linked to nothing other than proportional representation of
various races . . . would support indefinite use of
racial classifications, employed first to obtain the appropriate
mixture of racial views and then to ensure that the [program]
continues to reflect that mixture.”
Metro Broadcasting, Inc.
v.
FCC, 497 U. S. 547, 614 (1990) (O’Connor, J.,
dissenting). And as we held in
Fisher I, “ ‘[r]acial
balancing is not transformed from “patently unconstitutional” to a
compelling state interest simply by relabeling it “racial
diver-sity.” ’ ” 570 U. S., at ___ (slip op., at 9)
(quoting
Parents Involved, 551 U. S., at 732).
The record here demonstrates the pitfalls
inherent in racial balancing. Although UT claims an interest in the
educational benefits of diversity, it appears to have paid little
attention to anything other than the number of minority students on
its campus and in its classrooms. UT’s 2004 Proposal illustrates
this approach by repeatedly citing numerical assessments of the
racial makeup of the student body and various classes as the
justification for adopting a race-conscious plan. See,
e.g.,
Supp. App. 24a–26a, 30a. Instead of focusing on the benefits of
diversity, UT seems to have resorted to a simple racial census.
The majority, for its part, claims that
“[a]lthough demographics alone are by no means dispositive, they do
have some value as a gauge of the University’s ability to enroll
students who can offer underrepresented perspectives.”
Ante,
at 14. But even if UT merely “view[s] the demographic disparity as
cause for concern,” Brief for United States as
Amicus Curiae
29, and is seeking only to reduce—rather than eliminate—the
disparity, that undefined goal cannot be properly subjected to
strict scrutiny. In that case, there is simply no way for a court
to know what specific demographic interest UT is pursuing, why a
race-neutral alternative could not achieve that interest, and when
that demographic goal would be satisfied. If a demographic
discrepancy can serve as “a gauge” that justifies the use of racial
discrimination,
ante, at 14, then racial discrimination can
be justified on that basis until demographic parity is reached.
There is no logical stopping point short of patently
unconstitutional racial balancing. Demographic disparities thus
cannot be used to satisfy strict scrutiny here. See
Croson,
supra, at 498 (rejecting a municipality’s assertion that its
racial set-aside program was justified in light of past
discrimination because that assertion had “ ‘no logical
stopping point’ ” and could continue until the percentage of
government contracts awarded to minorities “mirrored the percentage
of minorities in the population as a whole”);
Wygant v.
Jackson Bd. of Ed., 476 U. S. 267, 275 (1986)
(plurality opinion) (rejecting the government’s asserted interest
because it had “no logical stopping point”).
2
The other major explanation UT offered in the
Proposal was its desire to promote classroom diversity. The
Proposal stressed that UT “has not reached a critical mass at the
classroom level.” Supp. App. 24a (emphasis added); see also
id., at 1a, 25a, 39a; App. 316a. In support of this
proposition, UT relied on a study of select classes containing five
or more students. As noted above, the study indicated that 52% of
these classes had no African-Americans, 16% had no Asian-Americans,
and 12% had no Hispanics. Supp. App. 26a. The study further
suggested that only 21% of these classes had two or more
African-Americans, 67% had two or more Asian-Americans, and 70% had
two or more Hispanics. See
ibid. Based on this study, UT
concluded that it had a “compelling educational interest” in
employing racial preferences to ensure that it did not “have large
numbers of classes in which there are no students—or only a single
student—of a given underrepresented race or ethnicity.”
Id.,
at 25a.
UT now equivocates, disclaiming any discrete
interest in classroom diversity. See Brief for Respondents 26–27.
Instead, UT has taken the position that the lack of classroom
diversity was merely a “red flag that UT had not yet fully
realized” “the constitutionally permissible educational benefits of
diversity.” Brief for Respondents in No. 11–345, at 43. But UT has
failed to identify the level of classroom diversity it deems
sufficient, again making it im-possible to apply strict
scrutiny.[
3] A reviewing court
cannot determine whether UT’s race-conscious programwas necessary
to remove the so-called “red flag” without understanding the
precise nature of that goal or know-ing when the “red flag” will be
considered to havedisappeared.
Putting aside UT’s effective abandonment of its
interest in classroom diversity, the evidence cited in support of
that interest is woefully insufficient to show that UT’s
race-conscious plan was necessary to achieve the educational
benefits of a diverse student body. As far as the record shows, UT
failed to even scratch the surface of the available data before
reflexively resorting to racial preferences. For instance, because
UT knows which students were admitted through the Top Ten Percent
Plan and which were not, as well as which students enrolled in
which classes, it would seem relatively easy to determine whether
Top Ten Percent students were more or less likely than holistic
admittees to enroll in the types of classes where diversity was
lacking. But UT never bothered to figure this out. See
ante,
at 9 (acknowledging that UT submitted no evidence regarding “how
students admitted solely based on their class rank differ in their
contribution to diversity from students admitted through holistic
review”). Nor is there any indication that UT instructed admissions
officers to search for African-American and Hispanic applicants who
would fill particular gaps at the classroom level. Given UT’s
failure to present such evidence, it has not demonstrated that its
race-conscious policy would promote classroom diversity any better
than race-neutral options, such as expanding the Top Ten Percent
Plan or using race-neutral holistic admissions.
Moreover, if UT is truly seeking to expose its
students to a diversity of ideas and perspectives, its policy is
poorly tailored to serve that end. UT’s own study—which the
majority touts as the best “nuanced quantitative data” supporting
UT’s position,
ante, at 15—demonstrated that classroom
diversity was more lacking for students classified as
Asian-American than for those classified as Hispanic. Supp. App.
26a. But the UT plan discriminates
against Asian-American
students.[
4] UT is apparently
unconcerned that Asian-Americans “may be made to feel isolated or
may be seen as . . . ‘spokesperson[s]’ of their race or
ethnicity.”
Id., at 69a; see
id., at 25a. And unless
the University is engaged in unconstitutional racial balancing
based on Texas demographics (where Hispanics outnumber
Asian-Americans), see Part II–C–1,
supra, it seemingly views
the classroom contributions of Asian-American students as less
valuable than those of Hispanic students. In UT’s view, apparently,
“Asian Americans are not worth as much as Hispanics in promoting
‘cross-racial understanding,’ breaking down ‘racial stereotypes,’
and enabling students to ‘better understand persons of different
races.’ ” Brief for Asian American Legal Foundation
et al. as
Amici Curiae 11 (representing 117
Asian-American organizations). The majority opinion effectively
endorses this view, crediting UT’s reliance on the classroom study
as proof that the University assessed its need for racial
discrimination (including racial discrimination that undeniably
harms Asian-Americans) “with care.”
Ante, at 15.
While both the majority and the Fifth Circuit
rely on UT’s classroom study, see
ante, at 15; 758 F. 3d, at
658–659, they completely ignore its finding that Hispanics are
better represented than Asian-Americans in UT classrooms. In fact,
they act almost as if Asian-American students do not exist. See
ante, at 14 (mentioning Asian-Americans only a single time
outside of parentheticals, and not in the context of the classroom
study); 758 F. 3d, at 658 (mentioning Asian-Americans only a single
time).[
5] Only the District
Court acknowledged the impact of UT’s policy on Asian-American
students. But it brushed aside this impact,
concluding—astoundingly—that UT can pick and choose which racial
and ethnic groups it would like to favor. According to the District
Court, “nothing in
Grutter requires a university to give
equal preference to every minority group,” and UT is allowed “to
exercise its discretion in determining which minority groups should
benefit from the consideration of race.” 645 F. Supp. 2d, at
606.
This reasoning, which the majority implicitly
accepts by blessing UT’s reliance on the classroom study, places
the Court on the “tortuous” path of “decid[ing] which races to
favor.”
Metro Broadcasting, 497 U. S., at 632 (Kennedy,
J., dissenting). And the Court’s willingness to allow this
“discrimination against individuals of Asian descent in UT
admissions is particularly troubling, in light of the long history
of discrimination against Asian Americans, especially in
education.” Brief for Asian American Legal Foundation et al.
as
Amici Curiae 6; see also,
e.g., id., at 16–17
(discussing the placement of Chinese-Americans in “ ‘separate
but equal’ ” public schools);
Gong Lum v.
Rice,
275 U. S. 78 –82 (1927) (holding that a
9-year-oldChinese-American girl could be denied entry to a “white”
school because she was “a member of the Mongolian or yellow race”).
In sum, “[w]hile the Court repeatedly refers to the preferences as
favoring ‘minorities,’ . . . it must be emphasized that
the discriminatory policies upheld today operate to exclude”
Asian-American students, who “have not made [UT’s] list” of favored
groups.
Metro Broadcasting,
supra, at 632 (Kennedy,
J., dissenting).
Perhaps the majority finds discrimination
against Asian-American students benign, since Asian-Americans are
“
overrepresented” at UT. 645 F. Supp. 2d, at 606. But
“[h]istory should teach greater humility.”
Metro
Broadcasting, 497 U. S., at 609 (O’Connor, J.,
dissenting). “ ‘[B]enign’ carries with it no independent
meaning, but reflects only acceptance of the current generation’s
conclusion that a politically acceptable burden, imposed on
particular citizens on the basis of race, is reasonable.”
Id., at 610. Where, as here, the government has provided
little explanation for why it needs to discriminate based on race,
“ ‘there is simply no way of determining what classifications
are “benign” . . . and what classifications are in fact
motivated by illegitimate notions of racial inferiority or simple
racial politics.’ ”
Parents Involved, 551 U. S., at 783
(opinion of Kennedy, J.) (quoting
Croson, 488 U. S., at
493 (plurality opinion of O’Connor, J.)). By accepting the
classroom study as proof that UT satisfied strict scrutiny, the
majority “move[s] us from ‘separate but equal’ to ‘un-equal but
benign.’ ”
Metro Broadcasting,
supra, at 638
(Kennedy, J., dissenting).
In addition to demonstrating that UT
discriminates against Asian-American students, the classroom study
also exhibits UT’s use of a few crude, overly simplistic racial and
ethnic categories. Under the UT plan, both the favored and the
disfavored groups are broad and consist of students from enormously
diverse backgrounds. See Supp. App. 30a; see also
Fisher I,
570 U. S., at ___ (slip op., at 4) (“five predefined racial
categories”). Because “[c]rude measures of this sort threaten to
reduce [students] to racial chits,”
Parents Involved, 551
U. S., at 798 (opinion of Kennedy, J.), UT’s reliance on such
measures further undermines any claim based on classroom diver-sity
statistics, see
id., at 723 (majority opinion) (criticizing
school policies that viewed race in rough “white/nonwhite” or
“black/‘other’ ” terms);
id., at 786 (opinion of
Kennedy, J.) (faulting government for relying on “crude racial
cat-egories”);
Metro Broadcasting,
supra, at 633, n.
1 (Kennedy, J., dissenting) (concluding that “ ‘the very
attempt to define with precision a beneficiary’s qualifying racial
characteristics is repugnant to our constitutional ideals,’ ”
and noting that if the government “ ‘is to make a serious
effort to define racial classes by criteria that can be
administered objectively, it must study precedents such as the
First Regulation to the Reichs Citizenship Law of November 14,
1935’ ”).
For example, students labeled “Asian American,”
Supp. App. 26a, seemingly include “individuals of Chinese,
Japanese, Korean, Vietnamese, Cambodian, Hmong, Indian and other
backgrounds comprising roughly 60% of the world’s population,”
Brief for Asian American Legal Foundation et al. as
Amici
Curiae, O. T. 2012, No. 11–345, p. 28.[
6] It would be ludicrous to suggest that all of
these students have similar backgrounds and similar ideas and
experiences to share. So why has UT lumped them together and
concluded that it is appropriate to discriminate against
Asian-American students because they are “overrepresented” in the
UT student body? UT has no good answer. And UT makes no effort to
ensure that it has a critical mass of, say, “Filipino Americans” or
“Cambodian Americans.” Tr. of Oral Arg. 52 (Oct. 10, 2012). As long
as there are a sufficient number of “Asian Americans,” UT is
apparently satisfied.
UT’s failure to provide any definition of the
various racial and ethnic groups is also revealing. UT does not
specify what it means to be “African-American,” “His-panic,” “Asian
American,” “Native American,” or “White.” Supp. App. 30a. And UT
evidently labels each student as falling into only a single racial
or ethnic group, see,
e.g., id., at 10a–13a, 30a,
43a–44a, 71a, 156a–157a, 169a–170a, without explaining how
individuals with ancestors from different groups are to be
characterized. As racial and ethnic prejudice recedes, more and
more students will have parents (or grandparents) who fall into
more than one of UT’s five groups. According to census figures,
individuals describing themselves as members of multiple races grew
by 32% from 2000 to 2010.[
7] A
recent survey reported that 26% of Hispanics and 28% of
Asian-Americans marry a spouse of a different race or
ethnicity.[
8] UT’s crude
classification system is ill suited for the more integrated country
that we are rapidly becoming. UT assumes that if an applicant
describes himself or herself as a member of a particular race or
ethnicity, that applicant will have a perspective that differs from
that of applicants who describe themselves as members of different
groups. But is this necessarily so? If an applicant hasone
grandparent, great-grandparent, or great-great-grandparent who was
a member of a favored group, is that enough to permit UT to infer
that this student’s classroom contribution will reflect a
distinctive perspective or set of experiences associated with that
group? UT does not say. It instead relies on applicants to
“classify themselves.”
Fisher I, 570 U. S., at ___
(slip op., at 4). This is an invitation for applicants to game the
system.
Finally, it seems clear that the lack of
classroom diver-sity is attributable in good part to factors other
than the representation of the favored groups in the UT student
population. UT offers an enormous number of classes in a wide range
of subjects, and it gives undergraduates a very large measure of
freedom to choose their classes. UT also offers courses in subjects
that are likely to have special appeal to members of the minority
groups given preferential treatment under its challenged plan, and
this of course diminishes the number of other courses in which
these students can enroll. See,
e.g., Supp. App. 72a–73a
(indicating that the representation of African-Americans and
Hispanics in UT classrooms varies substantially from major to
major). Having designed an undergraduate program that virtually
ensures a lack of classroom diver-sity, UT is poorly positioned to
argue that this very result provides a justification for racial and
ethnic discrimination, which the Constitution rarely allows.
3
UT’s purported interest in intraracial
diversity, or “diversity within diversity,” Brief for Respondents
34, also falls short. At bottom, this argument relies on the
unsupported assumption that there is something deficient or at
least radically different about the African-American and Hispanic
students admitted through the Top Ten Percent Plan.
Throughout this litigation, UT has repeatedly
shifted its position on the need for intraracial diversity.
Initially, in the 2004 Proposal, UT did not rely on this alleged
need at all. Rather, the Proposal “examined two metrics—classroom
diversity and demographic disparities—that it concluded were
relevant to its ability to provide [the] benefits of diversity.”
Brief for United States as
Amicus Curiae 27–28. Those
metrics looked only to the numbers of African-Americans and
Hispanics, not to diversity within each group.
On appeal to the Fifth Circuit and in
Fisher
I, however, UT began to emphasize its intraracial diversity
argument. UT complained that the Top Ten Percent Law hinders its
efforts to assemble a broadly diverse class because the minorities
admitted under that law are drawn largely from certain areas of
Texas where there are majority-minority schools. These students, UT
argued, tend to come from poor, disadvantaged families, and the
Univer-sity would prefer a system that gives it substantial leeway
to seek broad diversity
within groups of underrepresented
minorities. In particular, UT asserted a need for more
African-American and Hispanic students from privileged backgrounds.
See,
e.g., Brief for Respondents in No. 11–345, at 34
(explaining that UT needs race-conscious admissions in order to
admit “[t]he African-American or Hispanic child of successful
professionals in Dallas”);
ibid. (claiming that privileged
minorities “have great potential for serving as a ‘bridge’ in
promoting cross-racial understanding, as well as in breaking down
racial stereotypes”);
ibid. (intimating that the
underprivileged minority students admitted under the Top Ten
Percent Plan “
reinforc[e]” “stereotypical assumptions”); Tr.
of Oral Arg. 43–45 (Oct. 10, 2012) (“[A]lthough the percentage plan
certainly helps with minority admissions, by and large, the—the
minorities who are admitted tend to come from seg-regated,
racially-identifiable schools,” and “we wantminorities from
different backgrounds”). Thus, the Top Ten Percent Law is faulted
for admitting
the wrong kind of African-American and Hispanic
students.
The Fifth Circuit embraced this argument on
remand, endorsing UT’s claimed need to enroll minorities from
“high-performing,” “majority-white” high schools. 758 F. 3d,
at 653. According to the Fifth Circuit, these more privileged
minorities “bring a perspective not captured by” students admitted
under the Top Ten Percent Law, who often come “from highly
segregated, underfunded, and underperforming schools.”
Ibid.
For instance, the court determined, privileged minorities “can
enrich the diversity of the student body in distinct ways” because
such students have “higher levels of preparation and better
prospects for admission to UT Austin’s more demanding colleges”
than underprivileged minorities.
Id., at 654; see also
Fisher, 631 F. 3d, at 240, n. 149 (concluding thatthe
Top Ten Percent Plan “widens the ‘credentials gap’ between minority
and non-minority students at the University, which risks driving
away matriculating minor-ity students from difficult majors like
business or the sciences”).
Remarkably, UT now contends that petitioner has
“fabricat[ed]” the argument that it is seeking affluent minorities.
Brief for Respondents 2. That claim is impossible to square with
UT’s prior statements to this Court in the briefing and oral
argument in
Fisher I.[
9]
Moreover, although UT reframes its argument, it continues to assert
that it needs affirmative action to admit privileged minorities.
For instance, UT’s brief highlights its interest in admitting
“[t]he black student with high grades from Andover.” Brief for
Respondents 33. Similarly, at oral argument, UT claimed that its
“interests in the educa-tional benefits of diversity would not be
met if all of [the] minority students were . . . coming
from depressed socioeconomic backgrounds.” Tr. of Oral Arg. 53
(Dec. 9, 2015); see also
id., at 43, 45.
Ultimately, UT’s intraracial diversity rationale
relies on the baseless assumption that there is something wrong
with African-American and Hispanic students admitted through the
Top Ten Percent Plan, because they are “from the lower-performing,
racially identifiable schools.”
Id., at 43; see
id.,
at 42–43 (explaining that “the basis” for UT’s conclusion that it
was “not getting a variety of perspectives among African-Americans
or Hispanics” was the fact that the Top Ten Percent Plan admits
underprivileged minorities from highly segregated schools). In
effect, UT asks the Court “to
assume”—without any
evidence—“that minorities admitted under the Top Ten Percent Law
. . . are somehow more homogenous, less dynamic, and more
undesirably stereotypical than those admitted under holistic
review.” 758 F. 3d, at 669–670 (Garza, J., dissenting). And
UT’s assumptions appear to be based on the pernicious stereotype
that the African-Americans and Hispanics admitted through the Top
Ten Percent Plan only got in because they did not have to compete
against very many whites and Asian-Americans. See Tr. of Oral Arg.
42–43 (Dec. 9, 2015). These are “the very stereotypical assumptions
[that] the Equal Protection Clause forbids.”
Miller, 515
U. S., at 914. UT cannot satisfy its burden by attempting to
“substitute racial stereotype for evidence, and racial prejudice
for reason.”
Calhoun v.
United States, 568 U. S.
___, ___ (2013) (slip op., at 4) (Sotomayor, J., respecting denial
of certiorari).
In addition to relying on stereotypes, UT’s
argument that it needs racial preferences to admit privileged
minorities turns the concept of affirmative action on its head.
When affirmative action programs were first adopted, it was for the
purpose of helping the disadvantaged. See,
e.g., Bakke, 438
U. S., at 272–275 (opinion of Powell, J.) (explaining that the
school’s affirmative action program was designed “to increase the
representation” of “ ‘economically and/or educationally
disadvantaged’ applicants”). Now we are told that a program
that tends to admit poor and disadvantaged minority students is
inadequate because it does not work to the advantage of those who
are more fortunate. This is affirmative action gone wild.
It is also far from clear that UT’s assumptions
about the socioeconomic status of minorities admitted through the
Top Ten Percent Plan are even remotely accurate. Take, for example,
parental education. In 2008, when petitioner applied to UT,
approximately 79% of Texans aged 25 years or older had a high
school diploma, 17% had a bachelor’s degree, and 8% had a graduate
or professional degree. Dept. of Educ., Nat. Center for Educ.
Statistics, T. Snyder & S. Dillow,Digest of Education
Statistics 2010, p. 29 (2011). In contrast, 96% of
African-Americans admitted through the Top Ten Percent Plan had a
parent with a high school diploma, 59% had a parent with a
bachelor’s degree, and 26% had a parent with a graduate or
professional degree. See UT, Office of Admissions, Student Profile,
Admitted Freshman Class of 2008, p. 8 (rev. Aug. 1,2012) (2008
Student Profile), online at
https://uteas.app.box. com / s /twqozsbm2vb9lhm14o0v0czvqs1ygzqr/1/7732448553/23476747441/1.
Similarly, 83% of Hispanics admitted through the Top Ten Percent
Plan had a parent with a high school diploma, 42% had a parent with
a bachelor’s degree, and 21% had a parent with a graduate or
professional degree.
Ibid. As these statistics make plain,
the minorities that UT characterizes as “coming from depressed
socioeconomic backgrounds,” Tr. of Oral Arg. 53 (Dec. 9, 2015),
generally come from households with education levels exceeding the
norm in Texas.
Or consider income levels. In 2008, the median
annual household income in Texas was $49,453. United States Census
Bureau, A. Noss, Household Income for States: 2008 and 2009,
p. 4 (2010), online at
https://www.census.gov/prod/2010pubs/acsbr09-2.pdf. The household
income levels for Top Ten Percent African-American and Hispanic
admittees were on par: Roughly half of such admittees came from
households below the Texas median, and half came from households
above the median. See 2008 Student Profile 6. And a large portion
of these admittees are from households with income levels far
exceeding the Texas median. Specifically, 25% of African-Americans
and 27% of Hispanics admitted through the Top Ten Percent Plan in
2008 were raised in households with incomes exceeding $80,000.
Ibid. In light of this evidence, UT’s actual argument is not
that it needs affirmative action to ensure that its minority
admittees are representative of the State of Texas. Rather, UT is
asserting that it needs affirmative action to ensure that its
minority students disproportionally come from families that are
wealthier and better educated than the average Texas family.
In addition to using socioeconomic status to
falsely denigrate the minority students admitted through the Top
Ten Percent Plan, UT also argues that such students are
academically inferior. See,
e.g., Brief for Respondents in
No. 11–345, at 33 (“[T]he top 10% law systematically hinders UT’s
efforts to assemble a class that is . . . academically
excellent”). “On average,” UT claims, “African-American and
Hispanic holistic admits have higher SAT scores than their Top 10%
counterparts.” Brief for Respondents 43, n. 8. As a result, UT
argues that it needs race-conscious admissions to enroll
academically superior minority students with higher SAT scores.
Regrettably, the majority seems to embrace this argument as well.
See
ante, at 16 (“[T]he Equal Protection Clause does not
force universities to choose between a diverse student body and a
reputation for academic excellence”).
This argument fails for a number of reasons.
First, it is simply not true that Top Ten Percent minority
admittees are academically inferior to holistic admittees. In fact,
as UT’s president explained in 2000, “top 10 percent high school
students make much higher grades in college than non-top 10 percent
students,” and “[s]trong academic performance in high school is an
even better predictor of success in college than standardized test
scores.” App. 393a–394a; see also Lavergne Deposition 41–42
(agreeing that “it’s generally true that students admitted pursuant
to HB 588 [the Top Ten Percent Law] have a higher level of academic
performance at the University than students admitted outside of HB
588”). Indeed, the statistics in the record reveal that, for each
year between 2003 and 2007, African-American in-state freshmen who
were admitted under the Top Ten Percent Law earned a higher mean
grade point average than those admitted outside of the Top Ten
Percent Law. Supp. App. 164a. The same is true for Hispanic
students.
Id., at 165a. These conclusions correspond to the
results of nationwide studies showing that high school grades are a
better predictor of success in college than SAT scores.[
10]
It is also more than a little ironic that UT
uses the SAT, which has often been accused of reflecting racial and
cultural bias,[
11] as a
reason for dissatisfaction with poor and disadvantaged
African-American and Hispanic students who excel both in high
school and in college. Even if the SAT does not reflect such bias
(and I am ill equipped to express a view on that subject), SAT
scores clearly correlate with wealth.[
12]
UT certainly has a compelling interest in
admitting students who will achieve academic success, but it does
not follow that it has a compelling interest in maximizing
admittees’ SAT scores. Approximately 850 4-year-degree institutions
do not require the SAT or ACT as part of the admissions process.
See J. Soares, SAT Wars: The Case for Test-Optional College
Admissions 2 (2012). This includes many excellent schools.[
13]
To the extent that intraracial diversity refers
to something other than admitting privileged minorities and
minorities with higher SAT scores, UT has failed to define that
interest with any clarity. UT “has not provided any concrete
targets for admitting more minority students possessing [the]
unique qualitative-diversity characteristics” it desires. 758
F. 3d, at 669 (Garza, J., dissenting). Nor has UT specified
which characteristics, viewpoints, and life experiences are
supposedly lacking in the African-Americans and Hispanics admitted
through the Top Ten Percent Plan. In fact, because UT
administrators make no collective, qualitative assessment of the
minorities admitted automatically, they have no way of knowing
which attributes are missing. See
ante, at 9 (admitting that
there is no way of knowing “how students admitted solely based on
their class rank differ in their contribution to diversity from
students admitted through holistic review”); 758 F. 3d, at 669
(Garza, J., dissenting) (“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”). Furthermore, UT has not
identified “when, if ever, its goal (which remains undefined) for
qualitative diversity will be reached.”
Id., at 671. UT’s
intraracial diversity rationale is thus too imprecise to permit
strict scrutiny analysis.
Finally, UT’s shifting positions on intraracial
diversity, and the fact that intraracial diversity was not
emphasized in the Proposal, suggest that it was not “the actual
purpose underlying the discriminatory classification.”
Mississippi Univ. for Women v.
Hogan, 458 U. S.
718, 730 (1982) . Instead, it appears to be a
post hoc
rationalization.
4
UT also alleges—and the majority embraces—an
interest in avoiding “feelings of loneliness and isolation” among
minority students.
Ante, at 14–15; see Brief for Respondents
7–8, 38–39. In support of this argument, they cite only demographic
data and anecdotal statements by UT officials that some students
(we are not told how many) feel “isolated.” This vague interest
cannot possibly satisfy strict scrutiny.
If UT is seeking demographic parity to avoid
isolation, that is impermissible racial balancing. See Part II–C–1,
supra. And linking racial loneliness and isolation to state
demographics is illogical. Imagine, for example, that an
African-American student attends a university that is 20%
African-American. If racial isolation depends on a comparison to
state demographics, then that student is more likely to feel
isolated if the school is located in Mississippi (which is 37.0%
African-American) than if it is located in Montana (which is 0.4%
African-American). See United States Census Bureau, QuickFacts,
online at https://www.census.gov/quickfacts/table/PST045215/28,30.
In reality, however, the student may feel—if anything—
less
isolated in Mississippi, where African-Americans are more prevalent
in the population at large.
If, on the other hand, state demographics are
not driving UT’s interest in avoiding racial isolation, then its
treatment of Asian-American students is hard to understand. As the
District Court noted, “the gross number of Hispanic students
attending UT exceeds the gross number of Asian-American students.”
645 F. Supp. 2d, at 606. In 2008, for example, UT enrolled
1,338 Hispanic freshmen and 1,249 Asian-American freshmen. Supp.
App. 156a. UT never explains why the Hispanic students—but not the
Asian-American students—are isolated and lonely enough to receive
an admissions boost, notwithstanding the fact that there are more
Hispanics than Asian-Americans in the student population. The
anecdotal statements from UT officials certainly do not indicate
that Hispanics are somehow lonelier than Asian-Americans.
Ultimately, UT has failed to articulate its
interest in preventing racial isolation with any clarity, and it
has provided no clear indication of how it will know when such
isolation no longer exists. Like UT’s purported interests in
demographic parity, classroom diversity, and intraracial diversity,
its interest in avoiding racial isolation cannot justify the use of
racial preferences.
D
Even assuming UT is correct that, under
Grutter, it need only cite a generic interest in the
educational benefits of diversity, its plan still fails strict
scrutiny because it is not narrowly tailored. Narrow tailoring
requires “a careful judicial inquiry into whether a university
could achieve sufficient diversity without using racial
classifications.”
Fisher I, 570 U. S., at ___ (slip
op., at 10). “If a ‘ “nonracial approach . . . could
promote the substantial interest about as well and at tolerable
administrative expense,” ’ then the university may not
consider race.”
Id., at ___ (slip op., at 11) (citations
omitted). Here, there is no evidence that race-blind, holistic
review would not achieve UT’s goals at least “about as well” as
UT’s race-based policy. In addition, UT could have adopted other
approaches to further its goals, such as intensifying its outreach
efforts, uncapping the Top Ten Percent Law, or placing greater
weight on socioeconomic factors.
The majority argues that none of these
alternatives is “a workable means for the University to attain the
benefits of diversity it sought.”
Ante, at 16. Tellingly,
however, the majority devotes only a single, conclusory sentence to
the most obvious race-neutral alternative: race-blind, holistic
review that considers the applicant’s unique characteristics and
personal circumstances. See
ibid.[
14] Under a system that combines the Top Ten Percent
Plan with race-blind, holistic review, UT could still admit “the
star athlete or musician whose grades suffered because of daily
practices and training,” the “talented young biologist who
struggled to maintain above-average grades in humanities classes,”
and the “student whose freshman-year grades were poor because of a
family crisis but who got herself back on track in her last three
years of school.”
Ante, at 17. All of these unique
circumstances can be considered without injecting race into the
process. Because UT has failed to provide any evidence whatsoever
that race-conscious holistic review will achieve its diversity
objectives more effectively than race-blind holistic review, it
cannot satisfy the heavy burden imposed by the strict scrutiny
standard.
The fact that UT’s racial preferences are
unnecessary to achieve its stated goals is further demonstrated by
their minimal effect on UT’s diversity. In 2004, when race was not
a factor, 3.6% of non-Top Ten Percent Texas enrollees were
African-American and 11.6% were Hispanic. See Supp. App. 157a. It
would stand to reason that at least the same percentages of
African-American and Hispanic students would have been admitted
through holistic review in 2008 even if race were not a factor. If
that assumption is correct, then race was determinative for only 15
African-American students and 18 Hispanic students in 2008
(representing 0.2% and 0.3%, respectively, of the total enrolled
first-time freshmen from Texas high schools). See
ibid.[
15]
The majority contends that “[t]he fact that race
consciousness played a role in only a small portion of admissions
decisions should be a hallmark of narrow tailoring, not evidence of
unconstitutionality.”
Ante, at 15. This argument directly
contradicts this Court’s precedent. Because racial classifications
are “ ‘a highly suspect tool,’ ”
Grutter, 539
U. S, at 326, they should be employed only “as a last resort,”
Croson, 488 U. S., at 519 (opinion of Kennedy, J.); see
also
Grutter,
supra, at 342 (“[R]acial
classifications, however compelling their goals, are potentially so
dangerous that they may be employed no more broadly than the
interest demands”). Where, as here, racial preferences have only a
slight impact on minority enrollment, a race-neutral alternative
likely could have reached the same result. See
Parents
Involved, 551 U. S., at 733–734 (holding that the “minimal
effect” of school districts’ racial classifications “casts doubt on
the necessity of using [such] classifications” and “suggests that
other means [of achieving their objectives] would be effective”).
As Justice Kennedy once aptly put it, “the small number of
[students] affected suggests that the schoo[l] could have achieved
[its] stated ends through different means.”
Id., at 790
(opinion concurring in part and concurring in judgment). And in
this case, a race-neutral alternative could accomplish UT’s
objectives without gratuitously branding the covers of tens of
thousands of applications with a bare racial stamp and “tell[ing]
each student he or she is to be defined by race.”
Id., at
789.
III
The majority purports to agree with much of
the above analysis. The Court acknowledges that “ ‘because
racial characteristics so seldom provide a relevant basis for
disparate treatment,’ ” “ ‘[r]ace may not be considered
[by a university] unless the admissions process can withstand
strict scrutiny.’ ”
Ante, at 6–7. The Court admits that
the burden of proof is on UT,
ante, at 7, and that “a
university bears a heavy burden in showing that it had not obtained
the educational benefits of diversity before it turned to a
race-conscious plan,”
ante, at 13–14. And the Court
recognizes that the record here is “almost devoid of information
about the students who secured admission to the Univer-sity through
the Plan,” and that “[t]he Court thus cannot know how students
admitted solely based on their class rank differ in their
contribution to diversity from students admitted through holistic
review.”
Ante, at 9. This should be the end of the case:
Without identifying what was missing from the African-American and
Hispanic students it was already admitting through its race-neutral
process, and without showing how the use of race-based admissions
could rectify the deficiency, UT cannot demonstrate that its
procedure is narrowly tailored.
Yet, somehow, the majority concludes that
petitioner must lose as a result of UT’s failure to provide
evidence justifying its decision to employ racial discrimination.
Tellingly, the Court frames its analysis as if petitioner bears the
burden of proof here. See
ante, at 11–19. But it is not the
petitioner’s burden to show that the consideration of race is
unconstitutional. To the extent the record is inadequate, the
responsibility lies with UT. For “[w]hen a court subjects
governmental action to strict scrutiny, it cannot construe
ambiguities in favor of the State,”
Parents Involved,
supra, at 786 (opinion of Kennedy, J.), particularly where,
as here, the summary judgment posture obligates the Court to view
the facts in the light most favorable to petitioner, see
Matsushita Elec. Industrial Co. v.
Zenith Radio
Corp., 475 U. S. 574, 587 (1986) .
Given that the University bears the burden of
proof, it is not surprising that UT never made the argument that it
should win based on the
lack of evidence. UT instead asserts
that “if the Court believes there are any deficiencies in [the]
record that cast doubt on the constitutionality of UT’s policy, the
answer is to order a trial, not to grant summary judgment.” Brief
for Respondents 51; see also
id., at 52–53 (“[I]f this Court
has any doubts about how the Top 10% Law works, or how UT’s
holistic plan offsets the tradeoffs of the Top 10% Law, the answer
is to remand for a trial”). Nevertheless, the majority cites three
reasons for breaking from the normal strict scrutiny standard. None
of these is convincing.
A
First, the Court states that, while “th[e]
evidentiary gap perhaps could be filled by a remand to the district
court for further factfinding” in “an ordinary case,” that will not
work here because “[w]hen petitioner’s application was rejected,
. . . the University’s combined
percentage-plan/holistic-review approach to admission had been in
effect for just three years,” so “further factfinding” “might yield
little insight.”
Ante, at 9. This reasoning is dangerously
incorrect. The Equal Protection Clause does not provide a 3-year
grace period for racial discrimination. Under strict scrutiny, UT
was required to identify evidence that race-based admissions were
necessary to achieve a compelling interest
before it put
them in place—not three or more years after. See
ante, at
13–14 (“Petitioner is correct that a university bears a heavy
burden in showing that it had not obtained the educational benefits
of diversity
before it turned to a race-conscious plan”
(emphasis added));
Fisher I, 570 U. S., at ___ (slip
op., at 11) (“[S]trict scrutiny imposes on the university the
ultimate burden of demonstrating,
before turning to racial
classifications, that available, workable race-neutral alternatives
do not suffice” (emphasis added)). UT’s failure to obtain actual
evidence that racial preferences were necessary before resolving to
use them only confirms that its decision to inject race into
admissions was a reflexive response to
Grutter,[
16] and that UT did not seriously
consider whether race-neutral means would serve its goals as well
as a race-based process.
B
Second, in an effort to excuse UT’s lack of
evidence, the Court argues that because “the University lacks any
authority to alter the role of the Top Ten Percent Plan,” “it
similarly had no reason to keep extensive data on the Plan or the
students admitted under it—particularly in the years before
Fisher I clarified the stringency of the strict-scrutiny
burden for a school that employs race-conscious review.”
Ante, at 9–10. But UT has long been aware that it bears the
burden of justifying its racial discrimination under strict
scrutiny. See,
e.g., Brief for Respondents in No. 11–345, at
22 (“It is undisputed that UT’s consideration of race in its
holistic admissions process triggers strict scrutiny,” and “that
inquiry is undeniably rigorous”).[
17] In light of this burden, UT had
every reason
to keep data on the students admitted through the Top Ten Percent
Plan. Without such data, how could UT have possibly identified any
characteristics that were lacking in Top Ten Percent admittees and
that could be obtained via race-conscious admissions? How could UT
determine that employing a race-based process would serve its goals
better than, for instance, expanding the Top Ten Percent Plan? UT
could not possibly make such determinations without studying the
students admitted under the Top Ten Percent Plan. Its failure to do
so demonstrates that UT unthinkingly employed a race-based process
without examining whether the use of race was actually necessary.
This is not—as the Court claims—a “good-faith effor[t] to comply
with the law.”
Ante, at 10.
The majority’s willingness to cite UT’s “good
faith” as the basis for excusing its failure to adduce evidence is
particularly inappropriate in light of UT’s well-documented absence
of good faith. Since UT described its admissions policy to this
Court in
Fisher I, it has been revealed that this
description was incomplete. As explained in an independent
investigation into UT admissions, UT maintained a clandestine
admissions system that evaded public scrutiny until a former
admissions officer blew the whistle in 2014. See Kroll, Inc.,
Univer-sity of Texas at Austin—Investigation of Admissions
Prac-tices and Allegations of Undue Influence 4 (Feb. 6, 2015)
(Kroll Report). Under this longstanding, secret process, university
officials regularly overrode normal holistic review to allow
politically connected individuals—such as donors, alumni,
legislators, members of the Board of Regents, and UT officials and
faculty—to get family members and other friends admitted to UT,
despite having grades and standardized test scores substantially
below the median for admitted students.
Id., at 12–14; see
also Blanchard & Hoppe, Influential Texans Helped
Underqualified Students Get Into UT, Dallas Morning News, July 20,
2015, online at http://www.dallasnews.com/news/
education / headlines / 20150720 - influential - texans-helped-underqualified-students-get-into-ut.ece
(“Dozens of highly influential Texans—including lawmakers,
millionaire donors and university regents—helped underqualified
students get into the University of Texas, often by writing to UT
officials, records show”).
UT officials involved in this covert process
intentionally kept few records and destroyed those that did exist.
See,
e.g., Kroll Report 43 (“Efforts were made to minimize
paper trails and written lists during this end-of-cycle process. At
one meeting, the administrative assistants tried not keeping any
notes, but this proved difficult, so they took notes and later
shredded them. One administrative assistant usually brought to
these meetings a stack of index cards that were subsequently
destroyed”); see also
id., at 13 (finding that “written
records or notes” of the secret admissions meetings “are not
maintained and are typically shredded”). And in the course of this
litigation, UT has been less than forthright concerning its
treatment of well-connected applicants. Compare,
e.g., Tr.
of Oral Arg. 51 (Dec. 9, 2015) (“University of Texas does not do
legacy, Your Honor”), and App. 281a (“[O]ur legacy policy is such
that we don’t consider legacy”), with Kroll Report 29 (discussing
evidence that “alumni/legacy influence” “results each year in
certain applicants receiving a competitive boost or special
consideration in the admissions process,” and noting that this is
“an aspect of the admissions process that does not appear in the
public representations of UT-Austin’s admissions process”). Despite
UT’s apparent readiness to mislead the public and the Court, the
majority is “willing to be satisfied by [UT’s] profession of its
own good faith.”
Grutter, 539 U. S., at 394 (Kennedy,
J., dissenting).[
18]
Notwithstanding the majority’s claims to the
contrary, UT should have access to plenty of information about “how
students admitted solely based on their class rank differ in their
contribution to diversity from students admitted through holistic
review.”
Ante, at 9. UT undoubtedly knows which students
were admitted through the Top Ten Percent Plan and which were
admitted through holistic review. See,
e.g., Supp. App.
157a. And it undoubtedly has a record of all of the classes in
which these students enrolled. See,
e.g., UT, Office of the
Reg-istrar, Transcript—Official, online at
https://registrar.utexas.edu/students/transcripts-official
(instructing graduates on how to obtain a transcript listing a
“comprehensive record” of classes taken). UT could use this
information to demonstrate whether the Top Ten Percent minority
admittees were more or less likely than the holistic minority
admittees to choose to enroll in the courses lacking diversity.
In addition, UT assigns PAI scores to all
students—including those admitted through the Top Ten Percent
Plan—for purposes of admission to individual majors. Accordingly,
all students must submit a full application containing essays,
letters of recommendation, a resume, a list of courses taken in
high school, and a description of any extracurricular activities,
leadership experience, or special circumstances. See App.
212a–214a; 235a–236a; 758 F. 3d, at 669, n. 14 (Garza,
J., dissenting). Unless UT has destroyed these files,[
19] it could use them to compare the
unique personal characteristics of Top Ten minority admittees with
those of holistic minority admittees, and to determine whether the
Top Ten admittees are, in fact, less desirable than the holistic
admittees. This may require UT to expend some resources, but that
is an appropriate burden in light of the strict scrutiny standard
and the fact that all of the relevant information is in UT’s
possession. The cost of factfinding is a strange basis for awarding
a victory to UT, which has a huge budget, and a loss to petitioner,
who does not.
Finally, while I agree with the majority and the
Fifth Circuit that
Fisher I significantly changed the
governing law by clarifying the stringency of the strict scrutiny
standard,[
20] that does not
excuse UT from meeting that heavy burden. In
Adarand, for
instance, another case in which the Court clarified the rigor of
the strict scrutiny standard, the Court acknowledged that its
decision “alter[ed] the playing field in some important respects.”
515 U. S., at 237. As a result, it “remand[ed] the case to the
lower courts for further consideration
in light of the
principles [it had] announced.”
Ibid. (emphasis added).
In other words, the Court made clear that—notwithstanding the shift
in the law—the government had to meet the clarified burden it was
announcing. The Court did not embrace the notion that its decision
to alter the stringency of the strict scrutiny standard somehow
allowed the government to automatically prevail.
C
Third, the majority notes that this litigation
has persisted for many years, that petitioner has already graduated
from another college, that UT’s policy may have changed over time,
and that this case may offer little prospective guidance. At most,
these considerations counsel in favor of dismissing this case as
improvidently granted. But see,
e.g., Gratz, 539 U. S.,
at 251, and n. 1, 260–262 (rejecting the dissent’s argument
that, because the case had already persisted long enough for the
petitioners to graduate from other schools, the case should be
dismissed);
id., at 282 (Stevens, J., dissenting). None of
these considerations has any bearing whatsoever on the merits of
this suit. The majority cannot side with UT simply because it is
tired of this case.
IV
It is important to understand what is and what
is not at stake in this case.
What is not at stake is
whether UT or any other university may adopt an admissions plan
that results in a student body with a broad representation of
students from all racial and ethnic groups. UT previously had a
race-neutral plan that it claimed had “effectively compensated for
the loss of affirmative action,” App. 396a, and UT could have taken
other steps that would have increased the diversity of its admitted
students without taking race or ethnic background into account.
What is at stake is whether university
administrators may justify systematic racial discrimination simply
by asserting that such discrimination is necessary to achieve “the
educational benefits of diversity,” without explaining—much less
proving—why the discrimination is needed or how the discriminatory
plan is well crafted to serve its objectives. Even though UT has
never provided any coherent explanation for its asserted need to
discriminate on the basis of race, and even though UT’s position
relies on a series of unsupported and noxious racial assumptions,
the majority concludes that UT has met its heavy burden. This
conclusion is remarkable—and remarkably wrong.
Because UT has failed to satisfy strict
scrutiny, I respectfully dissent.