IN THE SUPREME COURT OF THE STATE OF DELAWARE FISHER Appellant, ) ) ) vs. ) ) UNIVERSITY OF TEXAS, ) Fifth Circuit No. 09­50822 Appellee. Supreme Court No. 11­345 ) APPELLEE’S BRIEF Appeal from a final judgment of the Supreme Court The Honorable Judge P. Morrison 1 TABLE OF CONTENTS TABLE OF AUTHORITIES 3 ISSUES PRESENTED FOR REVIEW 4 STATEMENT OF THE CASE 5 Facts 5 Procedural History 5 ARGUMENT 7 1.
The Lower Court was correct in ruling that the use of race in UT Austin’s 7 admission policy does not violate the Fourteenth Amendment's equal protection clause. 2.
The Lower Court was correct in finding that the University of Texas’ 9 admission policy meets the standard of strict scrutiny to allow race to be used in the admission of undergraduate applicants. CONCLUSION 14 2 TABLE OF AUTHORITIES Cases Brief for United States as Amicus Curiae​
13. 7 Fisher v. Univ. of Texas at Austin​
, 133 S. Ct. 2411, 2420 (2013) 8, 9 Fourteenth Amendment ​
7 Grutter v. Bollinger​
12 Keyishian v. Board of Regents of Univ. of State of N. Y.​
, 385 U.S. 589, 603 (1967) 8 Loving v. Virginia​
9 Regents of Univ. of Cal.v. Bakke​
, 438 U.S. 265, 299 (1978) 7, 9, 10, 11 Richmond v. J. A. Croson Co​
. 488 U.S., at 496 11 Richmond v. J. A. Croson Co​
., 488 U.S., at 493 12 Shaw v. Hunt​
517 U.S. 899, 908 (1996) 12 U.S. Const., Amdt. 14, I2​
7 Wygant v.Jackson Bd. of Ed.​
, 476 U.S. 267, 280, n. 6 (1986) 13 3 STATEMENT OF THE ISSUES PRESENT FOR REVIEW 1. Does the use of race in the undergraduates admissions policy violate the Fourteenth Amendment’s equal protection clause? 2.
Does the University of Texas’s admissions policy meet the standard of strict scrutiny to allow race to be used in the admission of undergraduate admissions? 4 STATEMENT OF THE CASE I.
Facts In 1997, the Texas legislature enacted a law requiring the University of Texas at Austin (UT Austin) to admit all high school seniors who ranked within the top ten percent of their class. After the law was enacted, UT Austin noticed a difference between the racial and ethnic makeup of the undergraduate population and the state’s population. To fix this problem, UT Austin amended its race­neutral admissions policy for applicants outside of the top ten percent of their graduating class. The new policy looked at a student’s Academic Index (AI), a composition of the student’s academic achievements and test scores, and their Personal Achievement Index (PAI), a compilation of the student’s essays, leadership abilities, awards, honors, work experience, extra curriculars, and “special circumstances.” Within these “special circumstances” are factors such as socioeconomic status, family status and race. UT Austin determines PAI holistically, never assigning point values to any one particular factor. Abigail N. Fisher, a caucasian female outside of her class’s top ten percent, applied to UT Austin in 2008 and was denied admission. II. Procedural History Fisher filed suit against the University claiming that UT Austin’s use of race in the admissions process violated the Equal Protection clause of the Fourteenth Amendment. In 2009, United States District Court Judge Sam Sparks upheld the university’s policy finding that it complied with the standards set forth in ​
Grutter v. Bollinger. In September 2011, Fisher’s lawyers filed petition seeking review from the Supreme Court. 5 On February 21, 2012, the Supreme Court granted certiorari in ​
Fisher v.University of Texas at Austin. On June 24, 2013, The Supreme Court vacated the Fifth Circuit’s decision by ruling that the Court had not met the standard of strict scrutiny to determine whether the policy was “precisely tailored to serve a compelling governmental interest.” In November 2013, the Fifth Circuit reheard the case and focused on the “critical mass” that UT Austin focused on achieving. The ruling affirmed their original decision that UT Austin’s admissions policy complied with the equal protection clause. On July 22, 2014, Fisher and associates filed an appeal with the Supreme Court. 6 I.
ARGUMENT The Lower Court was correct in ruling that the use of race in UT Austin’s admission policy does not violate the Fourteenth Amendment's equal protection clause. The Lower Court was correct in ruling that the use of race in the University of Texas at Austin (UT Austin) admissions policy does not violate the Fourteenth Amendment's equal protection clause. UT Austin lawfully uses race in their undergraduate admissions to further a compelling government interest. The Equal Protection Clause of the ​
Fourteenth Amendment​
declares that no State shall “deny any person within its jurisdiction the equal protection of the laws.” ​
U.S. Const., Amdt. 14, I2​
. The United States, in accordance with the ​
Fourteenth Amendment​
, affirms that, “[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” ​
Brief for United States as Amicus Curiae​
13. And, “[n]owhere is the importance of such openness more acute than in the context of higher education.” Ibid. “When [political judgments] touch upon an individual’s race or ethnic background, he is entitled to a judicial determination that the burden he is asked to bear on that basis is precisely tailored to serve a compelling governmental interest.” ​
Regents of Univ. of Cal.v. Bakke​
, 438 U.S. 265, 299 (1978). UT Austin has tailored its undergraduate admissions program to serve the compelling government interest that is exposure to a diverse people and a diverse environment. The court held in ​
Bakke​
that “State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.” Id ., at 320. Factoring in race and ethnic origin is one of ​
multiple w
​ays that UT Austin considers each applicant’s diversity. “Diversity is a composite of the backgrounds, experiences, achievements and hardships of students to which race only contributes.” ​
Fisher v. 7 Univ. of Texas at Austin​
, (page 15). UT Austin is focused on reaping the benefits that a diverse student body creates. The Supreme Court has recognized 3 distinct educational benefits that stem from a diverse environment: increased perspectives, professionalism, and civic engagement. Increased perspectives breed “livelier” and more enriching classroom discussions. Professionalism created through a diverse student body “better prepares students as professionals,” who must be able to work with people of all backgrounds and ethnicities. Civic engagement creates a diverse student body that is more conducive to “participation by members of all racial and ethnic groups in the civil life of our nation,” which helps to close the gaps between the many diverse people that are governed and therefore affected by the United States government. Exposing people to others of different backgrounds, cultures, and experiences while in an undergraduate setting prepares them to be more involved with their fellow Americans, and to be more prepared for the working world by eliminating stereotypes. The “nation’s future depends upon leaders trained through wide exposure to the ideas and morals of students as diverse as this Nation of many peoples.” ​
Keyishian v. Board of Regents of Univ. of State of N. Y.​
, 385 U.S. 589, 603 (1967). By accepting race as a diversifying factor, UT Austin has only increased the strength of its learning environment. The University of Texas use race as a mere “factor among factors,” assigning it no points and placing it within a sub category of “special circumstances” alongside other factors such as socioeconomic status, family composition, special family responsibilities, and socioeconomic status of the applicant’s high school. Being but one of many factors, the addition of race to holistic review did not result in any major increase in the minority populations at UT Austin. From 2004, the last race­neutral year, to 2008, the year of Fisher’s application, the percent of African American students went from 4.82% to 5.67% and the percent of Hispanic students went from 16.21% to 20.41%. The minimal increases show that race is not he be­all­end­all of 8 undergraduate applications and that its consideration has had only positive impacts on the presence of minorities at UT Austin. The University of Texas at Austin uses race in their undergraduate admissions to further a compelling government interest, diversity in institutions of higher education. Race is considered as one of a few factors to supplement an individual’s personal diversity, not as a way of obtaining a set quota. The Supreme Court should uphold the finding that the UT Austin’s undergraduate admissions program does not violate the Fourteenth Amendment’s equal protection clause. II.
The Lower Court was correct in finding that the University of Texas’ admission policy meets the standard of strict scrutiny to allow race to be used in the admission of undergraduate applicants. The Lower Court was correct in finding that the University of Texas’ admission policy meets the standard of strict scrutiny to allow race to be used in the admission of undergraduate applicants. It is stated in ​
Fisher v. University of Texas, ​
that “race may not be considered unless the admissions process can withstand strict scrutiny”, UT Austin’s policy meets this standard (570 US, 133 S. Ct. 2411 (2013) . In order to meet strict scrutiny, a policy must be justified by a compelling governmental interest, as well as be narrowly tailored to achieve that interest. ​
Loving v. Virginia​
determined that the Equal Protection Clause “demands that racial classifications… be subject to the most rigid scrutiny.” 388 U.S. 1, 11 (1967). But ​
Fisher​
and ​
Grutter​
supported the use of race, stating that the “academic mission of a university is a special concern of the First Amendment… [and part] of the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation, and this in turn leads to the question of who may be 9 admitted to study”. Diversity fulfills a compelling government interest by preparing students for the workplace through exposure to an education complete with views from multiple aspects of society, teaching a sense of acknowledgement from one student to another in regards to the differing viewpoints and opinions. Thus it is supported in ​
Fisher​
that the “attainment of a diverse student body” is a “constitutionally permissible goal for an institution of higher education”and that “the diversity that furthers a compelling [government] interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element” ​
Univ. of Cal. v. Bakke​
, 438 U.S. at 515. UT Austin’s admissions policy also meets the qualification of least restrictive means under strict scrutiny because race is not considered separately from an applicant’s other qualifications (essays, work experience,community service, etc.) under holistic review. It is stated under the explanation of the Personal Achievement Index (PAI) that race is a subsection of “special circumstances” considered, and because it is considered in the context of each applicant’s entire experience, therefore can be beneficial for a minority ​
or n
​on­minority student. UT Austin’s undergraduate admissions program does not seek to meet a quota but rather to obtain a “critical mass” of racial minority students. A “ ‘quota’ is a certain fixed number or proportion of opportunities that are reserved exclusively for certain minority groups.” Richmond v. J. A. Croson Co.​
, 488 U.S., at 496. During the admissions process, the racial composition of the current admittees is never checked or analyzed. UT Austin does not monitor these numbers because doing so would turn the program into a quota which is not their goal or purpose for using race as a factor in the first place. UT Austin seeks to admit a “critical mass” of minority students. As established in Grutter, a “ ‘critical mass’ ” means “ ‘meaningful numbers’ ” or “ ‘meaningful representation,’ ” which mean[s] a number that encourages underrepresented minority students to participate in the classroom and not feel isolated”. ​
Id.​
, at 208a—209a 10 (internal quotations omitted). The University of Michigan law school’s admissions process, as examined in ​
Grutter​
, is almost identical to that of UT Austin. Both schools examine the student on two fronts: academic achievements and personal achievements, the later of which includes “special circumstance” such as race. Being so similar, it is logical that the court would apply the same definition of critical mass to the two. UT Austin has always referenced ​
Grutter​
for its similarities, thus it seemed implied that critical mass would be of the same definition for both programs. With this definition of “critical mass,” it becomes clear that UT Austin is in no way aiming to meet a quota. In ​
University of California v. Bakke​
, Justice Powell rejected the argument that a program, such as that of UT Austin, becomes “the functional equivalent of a quota” merely because it had some “ ‘plus’ ” for race, or gave greater “weight” to race than to some other factors, in order to achieve student body diversity.” 438 U.S., at 317—318. With the diversity envisioned by Justice Powell in ​
Bakke​
in mind, ​
Grutter​
approved of the goal of “attaining a critical mass of underrepresented minority students,” and noted that such a goal “does not transform its program into a quota.” Much like the University of Michigan Law School’s admissions policy, UT Austin does not use race in its admissions to meet a quota but rather to create a critical mass of diverse students to further enrich the education that they provide. UT Austin’s use of race in undergraduate admissions is narrowly tailored to its goal of achieving a critical mass of minority students. When aiming to achieve any goal, it must be clear that “[t]he means chosen to accomplish the asserted purpose must be specifically and narrowly framed to accomplish that purpose.” ​
Shaw v. Hunt​
, 517 U.S. 899, 908 (1996) and that “the means chosen ‘fit’ … th[e] compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.” ​
Richmond v. J. A. Croson Co​
., 488 U.S., at 493. UT Austin employs race as a means of achieving the 11 aforementioned benefits of diversity that the Supreme Court recognizes as furthering a compelling government interest. To narrowly tailor their process to these goals, UT Austin uses race as only one factor of many, recognizing the diversity created by many factors. Narrow tailoring does ... require serious, good faith consideration of workable race­neutral alternatives that will achieve the diversity the university seeks.” ​
Grutter v. Bollinger​
, 539 U.S. 306 (2003). When the University noticed the dearth of minority representation that was created by the top ten percent plan, they began implementing race­neutral policies to attempt to fill the gap. They added $500,000 to their recruitment budget and created three new regional centers to expand their outreach programs to high school students. Some of their new programs included seminars for high school counselors and multiple day and overnight trips to UT Austin for prospective students. Between 1997 and 2007, UT Austin awarded $59 million through various scholarship programs targeted at low income students. In 2007, they spent $5.8 million on just two of such programs. “Narrow tailoring does not require exhaustion of every conceivable race­neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups,” ​
Wygant v.Jackson Bd. of Ed.​
, 476 U.S. 267, 280, n. 6 (1986) UT Austin made serious efforts to obtain their sought after critical mass of low income and minority students but ultimately found that the race­neutral alternatives were not enough. It was only then that UT Austin turned to using race in their admissions so to fill the gap that the top ten percent plan created. By exhausting the race­neutral alternatives, UT Austin narrowly tailored their use of race in undergraduate admissions to achieving the critical mass of diverse students that fulfils a compelling governmental interest. 12 CONCLUSION For the reasons stated above, this Court should uphold the Fifth Circuit Court’s findings that the use of race in undergraduate admissions does not violate the Fourteenth Amendment’s equal protection clause and that the University of Texas’ admissions policy meets the standard of strict scrutiny necessary to use race in the admission of undergraduate applicants. Respectfully submitted at Wilmington, Delaware on March 22, 2015. 13