Individualize Diversity In Texas

The issue with the Texas Top 10 Percent Plan and other race neutral methods is that the UT admissions staff isn’t able to pick out these students that bring a unique aspect of diversity to campus. With the Top 10 Percent Plan, admission is based solely on GPA relative to the other students in one’s high school. Even though this leads to diversity based on race, it is an ineffective means to achieve the “individualized diversity” that the University of Texas needed in order to accomplish their mission. As a result, In 2004, UT re-introduced race and ethnicity in admissions through a newly established holistic admissions system. The process began with a year-long evaluation to determine if UT had met their goals regarding diversity. After a year,

the assessment committee determined that these goals had not been reached, and so they submitted a proposal for a holistic admissions system to the University of Texas Board of Regents. The proposed system calculates a Personal Achievement Score (PAI). One component of the PAI was special circumstances, which includes race as a distinguishing special circumstance, although this component was only one of six. Through this, applicants with desirable special circumstances are given more points in calculating their PAI, meaning that more of them will be admitted to increase the desired diversity at UT.
According to the University of Texas, their educational mission requires diversity in order to be fulfilled. In their words, their mission is “educating the future leaders of Texas, in a State that is increasingly diverse.” In order to achieve this mission to prepare their students for a future that includes diversity, UT had to include race in the holistic admissions process.
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The petitioner is given a chance to refute the respondent’s brief in their reply brief. The first point that the petitioners refute is that they don’t hold Article III standing. In their statement they make the point that in the four times in which Fisher v. University of Texas had been tried, the reviewing court had never found issues with the petitioner’s Article III standing. The petitioner goes even further to refute this point by declaring that “UT’s arguments expose its desperation to avoid a ruling on the merits” The petitioner believes that UT attempts to use standing as a distraction because UT cannot win the case on their own merits.
The petitioner then readdresses the standards that UT needs to meet in their admissions system.

In their brief, the respondents claim that they don’t have to give clear educational goals because it is the petitioner requesting it and not a precedent set in court. However, the petitioner responds to this claim by stating:

Strict scrutiny would be a nullity if UT could survive it merely by making a general claim of seeking the educational benefits of diversity without ever explaining why it needed race to do so. There would be no way for the reviewing court to verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity. Strict scrutiny requires a court to assess both the legitimacy of a university’s rationale for employing racial preferences and the necessity of using race to achieve

it.
In this response, they target the vagueness of UT’s descriptions. In particular, UT never elaborates why they want or need diversity in their school. Under strict scrutiny, they have to explicitly and clearly describe their rationale. This is necessary because it is easy to describe a loosely structured affirmative action system if there is no specific rationale behind it. For example, a university must know what type of diversity they are looking for and how it will improve the campus climate so they are able to design a narrowly tailored system to accomplish it. Even worse, in the case of the University of Texas, they changed their rationales in an attempt to be more clear. Not only does this violate strict scrutiny because the rationale must be clear at the onset of the program, but their justifications became increasingly vague.
The petitioner targets each of UT’s motives for increasing diversity on campus and points out why none of them can be upheld under strict scrutiny. Initially, UT wanted to increase diversity on campus for greater classroom diversity and demographic parity. Over time as arguments in court progressed, they changed their rationales to increasing “intra-racial diversity” In regards to the two initial interests, the petitioner asserts:
The United States half-heartedly defends UT’s abandoned interests in classroom diversity and demographic parity, recognizing that they are the only justifications offered in UT’s Proposal. The United States claims—without analysis—that “classroom diversity” and the disparity “between the racial and ethnic makeup of the student body and the State’s population are constitutionally acceptable goals. But that is wrong, and Grutter supports neither. Nor does the United States explain how UT’s system is narrowly tailored to achieve either.
Attaining classroom diversity is extreme unspecific because they fail to define exactly what level of classroom diversity they are seeking. Although demographic parity is slightly more precise, this is not a compelling interest because very few universities mirror the demographic of the state in which they reside. Also, demographic parity is not an attainable goals because it would require monumental shifts in the current demographics of the university and could not be achieved under a legal affirmative action system. In reference to UT’s interest in intra-racial diversity, the petitioner refutes:
Any claimed interest in intra-racial diversity fails at the outset for two reasons. First, as the United States implicitly acknowledges, U.S. Br. 3, 27-28, it is not “the actual [reason] underlying the discriminatory classification,” Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 730 (1982), but a post hoc rationalization for a classification imposed for different reasons, Pet. Br. 32-35. Second, there is no record evidence “to support [UT’s] conclusion” that racial preferences were necessary to achieve its asserted goal “at the time it acted.” Shaw v. Hunt, 517 U.S. 899, 915 (1996); Pet. Br. 33-35. UT does not seriously contest either charge; rather, it asks the Court to ignore Fisher I and relieve it of the obligation to comply with basic precepts of strict-scrutiny review. Supra at 6-8. That should be the end of the matter.

This argument first proves that intra-racial diversity isn’t a compelling interest in itself because of precedent set by Mississippi Univ. for Women v. Hogan. However, it goes even further by asserting that this rationale is invalid because they applied it years after 2004 when UT re-introduced race into admissions. Because strict scrutiny requires justification to be present at the time when an affirmative action program begins, the respondent’s argument that they are seeking intra-racial diversity is completely invalid.
The petitioner’s rebuttal is very effective because they address the respondent’s arguments point-for-point and are able to successfully weaken the respondent’s argument. The petitioner proves why they have standing, reiterate why UT has not met the standards for a strict scrutiny review, and gives specific examples why UT has never provided a clear compelling interest for including race in admissions. The most significant advantage to their argument is the evidence that they are able to provide that directly refutes the opinions that the respondent put forth in their brief. While most of the respondent seeks to provide distractions for the true core of the case which is a strict scrutiny review, the petitioner is successfully able to challenge them with precedents from other cases and data from UT admissions.
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Majority Opinion
Written by Peter Brody-Moore
In 2008, Petitioner, Abigal Fisher, sued the University of Texas on the basis that UT’s affirmative action policies discriminated against her as a Caucasian. Petitioner did not receive admission to UT’s 2008 entering class and claims that this rejection is a result of UT’s affirmative action policies. It is the majority opinion of the Supreme Court of the United States that the University of Texas’ use of race in their holistic admissions process violates the Equal Protection Clause of the Fourteenth Amendment and is therefore unconstitutional.
The University of Texas re-introduced race into admission after Grutter v.

Bollinger which allowed for race to be considered in admissions if it was one of many other factors, and Gratz v. Bollinger which declared it unconstitutional to automatically adds points for specific racial identities. UT’s rationale for re-introducing race was to gain a critical mass of diversity in their school in order to better prepare their students for a future in which they would encounter diverse perspective. However, the main question in the case is not whether or not UT needs diversity in their school. It is a commonly accepted fact that students benefit from having a more diverse classroom and from hearing opinions that contradict their own. The question in this case is if the mechanism through which the University of Texas achieves diversity survive under a strict scrutiny test.

The University of Texas’ holistic admission system does not survive a strict scrutiny test and is thus unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Strict scrutiny requires the University to have a compelling interest to institute affirmative action policies and the affirmative action policies must be narrowly tailored. In this case, the University does meet the condition of a compelling interest for diversity. As the respondents argued in their

brief:
UT undertook a year-long assessment of whether UT had met its “overall goal of having a student body that is meritorious and diverse in a variety of educationally relevant ways,” which included discussions with administrators, faculty, and students. JA 445a- 46a, 481a. This lengthy process culminated in a proposal that UT made to the Board of Regents in June 2004 (2004 Proposal). SJA 1a-39a. The 2004 Proposal explained, on the first page and throughout, that UT sought to achieve the same interest that this Court had just reaffirmed was compelling—the “educational values of diversity.”
This demonstrates the time and effort to UT took in both determining their current state of diversity, and then evaluating what level they would ideally be at. Through their year-long assessment, they determined concrete educational benefits to having a diverse student body. These concrete benefits do form a compelling interest in the precedent set by Grutter v. Bollinger.
Even though UT has a compelling interest in diversity, their mechanism to achieve the desired levels of diversity are not narrowly tailored. According to the majority opinion written in the case Grutter v. Bollinger, “When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.” Therefore, Grutter sets that the admissions system needs to be narrowly tailored in addition to having a compelling interest in order to be constitutionally acceptable. An affirmative action system is narrowly tailored if and only if it is instituted to achieve both clearly defined and attainable goals. In addition, it can only be introduced to fulfill on these goals. This is where UT failed a strict scrutiny review, therefore making their admissions system unconstitutional.
When the University of Texas re-introduced race into their holistic admissions system in 2004, they did so for two reasons: to promote demographic parity and classroom diversity. In this case, the Supreme Court places the burden of proof on the University of Texas to prove that these two means are narrowly tailored. In the previous two reviews, the Fifth Circuit Court of Appeals has provided the University of Texas with too much deference in their duty to prove that their policies are narrowly tailored. They accepted demographic parity, classroom diversity, and eventually intra-racial diversity as narrowly tailored based on UT’s credibility as an academic institution, instead of challenging UT to thoroughly explain their goals. This amount of deference is shameful to the United States court system because of the bias the the Fifth Court exercised. In our own review of the facts provided by the briefs, the Supreme Court does not accept UT’s goals of demographic parity, classroom diversity, and intra-racial diversity as narrowly tailored.