No. 14-981

IN THE

Supreme Court of the United States_________

ABIGAIL NOEL FISHER,Petitioner,

v.

UNIVERSITY OF TEXAS AT AUSTIN, et al.,Respondents.

_________

On Writ of Certiorarito the United States Court of Appeals

for the Fifth Circuit_________

BRIEF OF AMICI CURIAE AMERICANCOUNCIL ON EDUCATION AND 37 OTHER

HIGHER EDUCATION ORGANIZATIONSIN SUPPORT OF RESPONDENTS

_________

PETER G. MCDONOUGH

American Councilon Education

One Dupont CircleWashington, DC 20036(202) 939-9300

MARTIN MICHAELSON *ELIZABETH B. MEERS

JOEL D. BUCKMAN

Hogan Lovells US LLP555 Thirteenth St., NWWashington, DC 20004(202) 637-5600martin.michaelson@hoganlovells.com

* Counsel of Record Counsel for Amici Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iii

STATEMENT OF INTEREST....................................1

SUMMARY OF ARGUMENT.....................................2

ARGUMENT ...............................................................5

I. THE COMPELLING INTEREST INCOMPOSITION OF A DIVERSESTUDENT BODY ENTAILSEDUCATIONAL JUDGMENT ANDMERITS JUDICIAL REGARD..........................5

A. The Compelling Interest The CourtHas Approved Is Educational ......................5

1. Colleges And Universities SeekStudent Body Diversity InPursuit Of EducationalExcellence...............................................5

2. The Court Has RepeatedlyRecognized The EducationalValue Of A Diverse StudentBody........................................................9

B. To Compose An Entering ClassLikely To Produce The Benefit OfDiversity Entails Institution-specific Educational Judgments ................12

ii

TABLE OF CONTENTS—Continued

Page

C. Judicial Regard For TheseEducational Judgments UndergirdsThe Finest Higher EducationSystem In The World..................................16

II. NARROW TAILORING ASSESSESMEANS, NOT ENDS.......................................18

A. The Proper Analysis Is WhetherThe Means Chosen By TheInstitution To Attain Diversity AreNarrowly Tailored To The Goal .................18

B. Race-neutral Alternatives AreInappropriate If They ThwartAn Institution’s EducationalJudgments ..................................................20

C. Narrow Tailoring Should Not BeInterpreted To Forbid Race-conscious Holistic Review SimplyBecause The Review OperatesConcurrently With Race-neutralMechanisms ................................................21

CONCLUSION ..........................................................23

iii

TABLE OF AUTHORITIES

Page

CASES:

Bd. of Curators of Univ. of Mo. v. Horowitz,435 U.S. 78 (1978)................................................12

Edwards v. Cal. Univ. of Penn.,156 F.3d 488 (3d Cir. 1998) .................................12

Fisher v. Univ. of Texas,133 S. Ct. 2411 (2013) ................................. passim

Gratz v. Bollinger,539 U.S. 244 (2003)........................................16, 19

Grutter v. Bollinger,539 U.S. 306 (2003)...................................... passim

Parents Involved in Cmty. Sch. v. Seattle Sch.Dist. No. 1,551 U.S. 701 (2007) ........................... 13, 20, 22, 23

Regents of Univ. of Mich. v. Ewing,474 U.S. 214 (1985)............................ 11, 12, 14, 17

Regents of Univ. of Cal. v. Bakke,438 U.S. 265 (1978)...................................... passim

Trs. of Dartmouth Coll. v. Woodward,17 U.S. (4 Wheat.) 518 (1819)..............................17

STATUTES:

20 U.S.C. § 1232a ......................................................17

iv

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES:

1 Richard Hofstadter and Wilson Smith eds.,American Higher Education: ADocumentary History, Vol. 1 (1961) ....................17

A.L. Antonio et al., Approaching DiversityWork in the University: Lessons from anAmerican Context, in As the World Turns:Implications of Global Shifts in HigherEducation for Theory, Research andPractice (Walter R. Allen et al. eds. 2012) ..........10

Arthur H. Compton, Foreword to HustonSmith, The Purposes of Higher Education(1955) ......................................................................6

Carnegie Comm’n on Higher Educ., Reform onCampus: Changing Students, ChangingAcademic Programs (1972) ..................................17

Diane N. Ruble, A Phase Model of Transitions:Cognitive and Motivational Consequences,26 Advances in Experimental Social Psych.163 (1994) ...............................................................7

F.W. Garforth, Educative Democracy: JohnStuart Mill on Education in Society (1980) ..........7

Ian Wilhelm, “U.S. Is Ranked as Top Higher-Education System in the World,” TheChronicle of Higher Education (May 14,2014) .....................................................................16

v

TABLE OF AUTHORITIES—Continued

Page

Jean Piaget, Piaget’s Theory, in 1 Carmichael’sManual of Child Psychology (P. H. Mussened., 3d ed. Wiley 1970) ...........................................7

Lee C. Bollinger, Why Diversity Matters,Chronicle of Higher Education (June 1,2007) .......................................................................6

Lorelle L. Espinosa, Matthew N. Gaertner,and Gary Orfield, Race, Class, & CollegeAccess: Achieving Diversity in a ShiftingLegal Landscape (2015) .................................15, 22

N. Bowman, College Diversity Experiences andCognitive Development: A Meta-Analysis,80 Review of Educational Research 4(2010) ....................................................................10

N. Denson & M.J. Chang, Racial DiversityMatters: The Impact of Diversity-RelatedStudent Engagement and InstitutionalContext, 46 American EducationalResearch Journal 322 (2008) ...............................10

N. Gottfredson et al., Does Diversity at

Student Outcomes?, 1 Journal of Diversityin Higher Education 80 (2008) ............................10

Peter B. Pufall, The Development of Thought:On Perceiving and Knowing, in RobertShaw & John Bransford, Perceiving,Acting, and Knowing: Toward anEcological Psychology (1977) .................................7

vi

TABLE OF AUTHORITIES—Continued

Page

Princeton University, The Admission Decision,https://admission.princeton.edu/applyingforadmission/admission-faqs/admission-decision (last visited Oct. 10, 2015).....................15

Raymond V. Gilmartin, Diversity andCompetitive Advantage at Merck, Harv.Bus. Rev. 146 (Jan. - Feb. 1999)............................6

S. Hurtado & L. D’Angelo, Linking Diversityand Civic-Minded Practices with StudentOutcomes: New Evidence from NationalSurveys, 98 Liberal Education 2 (2012) ..............10

William G. Bowen & Derek Bok, The Shape ofthe River (1998) ......................................................6

1

IN THE

Supreme Court of the United States_________

No. 14-981_________

ABIGAIL NOEL FISHER,Petitioner,

v.

UNIVERSITY OF TEXAS AT AUSTIN, et al.,Respondents.

_________

On Writ of Certiorarito the United States Court of Appeals

for the Fifth Circuit_________

BRIEF OF AMICI CURIAE AMERICANCOUNCIL ON EDUCATION AND 37 OTHERHIGHER EDUCATION ORGANIZATIONS IN

SUPPORT OF RESPONDENTS_________

STATEMENT OF INTEREST1

Amici are 38 associations of colleges, universities,educators, trustees, and other representatives ofhigher education in the United States. Amicirepresent public, independent, large, small, urban,rural, denominational, non-denominational,

1 No party or counsel for a party authored or paid for thisbrief in whole or in part, or made a monetary contribution tofund the brief’s preparation or submission. No one other thanamici or their members or counsel made a monetarycontribution to the brief. All parties filed blanket amicusconsent letters with the Clerk.

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graduate, and undergraduate institutions andfaculty. American higher education institutionsenroll over 17 million students. For decades amicihave worked to advance student diversity.

Amicus American Council on Education (ACE)represents all higher education sectors. Itsapproximately 1,700 members reflect theextraordinary breadth and contributions of degree-granting colleges and universities in the UnitedStates. Founded in 1918, ACE seeks to foster highstandards in higher education, believing a stronghigher education system to be the cornerstone of ademocratic society. Among its initiatives, ACE had amajor role in establishing the Commission onMinority Participation in Education and AmericanLife, chaired by former Presidents Ford and Carter,which issued One-Third of a Nation (1988), a reporton minority matriculation, retention, andgraduation.

The Addendum contains information on the otheramici on this brief.

SUMMARY OF ARGUMENT

A diverse student body is essential to educationalobjectives of colleges and universities. The Courtheld in Grutter v. Bollinger, 539 U.S. 306 (2003), andreaffirmed in Fisher v. University of Texas, 133 S. Ct.2411 (2013) (“Fisher I”), that higher educationinstitutions have a compelling interest in educationalbenefit that flows from a diverse student body. Thatinterest can justify narrowly tailored consideration ofrace in admissions as part of holistic review ofindividual applicants.

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The interest in student diversity is compellingbecause grounded in educational benefit, and rootedin educational judgment. Although selective highereducation institutions express student body diversityin various ways based on their respective educationalmissions, their basic objectives are the same—toadmit and support a cohort of students whose“chemistry,” individually and collectively, fostersexceptional learning. In Regents of University ofCalifornia v. Bakke, 438 U.S. 265 (1978), Grutter,and Fisher I, the Court made clear that when acollege or university sets its educational goals—including a goal of attaining the educational benefitof a diverse student body—it makes an educationaljudgment that merits judicial regard.

Whether a given mix of students “ ‘provide[s] thatatmosphere which is most conducive to speculation,experiment, and creation’ ” involves considerationseducators are best equipped to gauge. Fisher I, 133S. Ct. at 2418 (citation omitted). A universityproperly may conclude not only that student bodydiversity in the abstract produces educationalbenefit, but also that a certain conception of diversitywould produce the benefit it seeks. These areeducational judgments. Under controlling precedent,colleges and universities may determine that aparticular conception of diversity would best servetheir educational goals.

Petitioner would have the Court superintendcolleges’ and universities’ educational objectives andjudgments. Rather than focus on whether the meansfit the educational goals, she would change the focusto the goals themselves, asking courts to superviseand supersede educators’ judgments about

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educational objectives and the students who wouldbest achieve them. That approach, at odds withcontrolling precedent, would dictate a singleconception of sound educational policy for everycollege and university and truncate institutionalpluralism, a hallmark of American higher education.Such homogeneity would be as untenable as it isimpractical. Strict scrutiny does not require andshould not tolerate that.

Colleges and universities do not have unfettereddiscretion. They must define their goals “byreference to the educational benefits that diversity isdesigned to produce.” Grutter, 539 U.S. at 330. Theymust be able to articulate a “reasoned, principledexplanation” for their academic decisions. Fisher I,133 S. Ct. at 2419. Narrow tailoring asks whether“the means chosen by the University to attaindiversity are narrowly tailored to that goal.” FisherI, 133 S. Ct. at 2420. This obligation is significantfor colleges and universities. Its performance issubject to judicial review, a review thatacknowledges the educational nature of theinstitution’s judgment, but, where race is aconsideration, also entails strict scrutiny.

Within those parameters, however, a universitymay appropriately conclude, in the exercise of itsacademic judgment, that consideration of race amongmany other characteristics in a holistic review ofapplicants is necessary to enable the institution tomeet its educational objectives. Even under strictscrutiny, narrow tailoring should not be interpretedto forbid race-conscious holistic review merelybecause the review operates concurrently with race-neutral mechanisms.

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ARGUMENT

I. THE COMPELLINGINTERESTINCOMPOSITIONOF A DIVERSE STUDENT BODY ENTAILSEDUCATIONAL JUDGMENT AND MERITSJUDICIALREGARD.

Just three terms ago, Fisher I reaffirmed thatobtaining the educational benefit a diverse studentbody produces is a compelling interest which canjustify narrowly tailored consideration of race incollege admissions. Grounded in educational benefit,the compelling interest requires educationaljudgment and merits judicial regard.

A. The Compelling Interest The Court HasApproved Is Educational.

1. Colleges And Universities Seek StudentBody Diversity In Pursuit Of EducationalExcellence.

The nation’s colleges and universities seek studentbody diversity in pursuit of educational excellence.They must prepare students who will have tonavigate a nation more diverse, and a world moreinterconnected, than ever before. Student bodydiversity is critical to the task.

To equip students to flourish in tomorrow’sinterconnected world, colleges and universities muststimulate students’ thirst for the new andunfamiliar. Student body diversity catalyzes theexploratory spirit. “The experience of arriving on acampus to live and study with classmates from adiverse range of backgrounds is essential to students’training for this new world, nurturing in them aninstinct to reach out instead of clinging to the

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comforts of what seems natural or familiar.” Lee C.Bollinger, Why Diversity Matters, Chronicle ofHigher Education (June 1, 2007).

This acquired affinity for the unfamiliar enablesstudents to contribute to economic, scientific, andsocial progress and to function in the global economy.A purpose of higher education is to equipprofessionals and business leaders to interact withdiverse customers, clients, co-workers, and businesspartners. See, e.g., Raymond V. Gilmartin, Diversityand Competitive Advantage at Merck, Harv. Bus.Rev. 146 (Jan. - Feb. 1999). As one business leaderput it, “[o]ur success as a global community is asdependent on utilizing the wealth of backgrounds,skills and opinions that a diverse workforce offers, asit is on raw materials, technology and processes.”William G. Bowen & Derek Bok, The Shape of theRiver 12 (1998) (quoting Robert J. Eaton, thenChairman and CEO of Chrysler Corporation).

Colleges and universities cannot claim to providean excellent education if they send students into theworld wearing blinders. So, too, in fields such aslaw, the natural sciences, and medicine, whereinternational collaboration increasingly isindispensable, students today must receive directexperience with people of different backgrounds,including race and ethnicity. Students cannotadequately acquire it from books, and they willsorely need it. See Arthur H. Compton, Foreword toHuston Smith, The Purposes of Higher Education xiv(1955).

Student body diversity also contributes vitally tothe process of learning, on which the powers of

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reason depend. A longstanding precept ofdevelopmental psychology is that we learn byformulating, revising, and refining conceptions of theworld each time we encounter new facts, beliefs,experiences, and viewpoints. See, e.g., Peter B.Pufall, The Development of Thought: On Perceivingand Knowing, in Robert Shaw & John Bransford,Perceiving, Acting, and Knowing: Toward anEcological Psychology 173-174 (1977). Faced withnew information, students either assimilate it to fitthe existing conception, or revise the conception toaccommodate the new information. This“disequilibration,” as Jean Piaget called it, and thesubsequent restoration of cognitive balance, forcelearners to refine their thinking. Piaget taught that“disequilibration” experiences have greatest impactwhen they come from “social interaction.” JeanPiaget, Piaget’s Theory, in 1 Carmichael’s Manual ofChild Psychology (P. H. Mussen ed., 3d ed. Wiley1970). A student, confronted by a peer who has anew or unexpected perspective on the world, meetsthat perspective as an equal, and can explore andabsorb it more fully than if merely informed of it in,for example, a lecture. See, e.g., Diane N. Ruble, APhase Model of Transitions: Cognitive andMotivational Consequences, 26 Advances inExperimental Social Psych. 163, 171 (1994). Collegesand universities supply and catalyze “that collisionwhich is obtained only in society and by which aknowledge of the world and its manners is bestacquired.” F.W. Garforth, Educative Democracy:John Stuart Mill on Education in Society 164 (1980)(citing David Ricardo).

These bedrock principles of developmentalpsychology, to which educators at all levels

8

subscribe, teach that exposing students to an arrayof peer life experiences and perspectives is critical tolearning. The familiar is less valuable; it tends toreinforce preconception. But the new and differentare food for intellectual growth. Student diversityprovides all learners opportunities to develop theirintellects, through exposure to increasingly complexand nuanced models presented by peers. These newperspectives and experiences are especiallyeducational when encountered in direct interactionwith a peer, because peer encounters entail the give-and-take and the emotional processes that promotecomplex thinking.

Interaction among students from diversebackgrounds exposes each to a broader array ofvantage points from which to view his or her ownvalues than does interaction among like-mindedstudents whose experiences are similar. Of course,students will not and should not always accept newperspectives and abandon their own. Highereducation teaches students to employ reason todecide for themselves which of their beliefs to retain,and which to cast aside in favor of other discoveredtruths. And students in diverse institutions oftenlearn that anticipated differences in perspectives orviews do not exist, or do not correlate as expectedwith race or ethnicity. Preconception is therebydispelled, and stereotype is thereby rebutted.

Student body diversity thus awakens students fromthe sleepy “unexamined life” of which Socrateswarned. It also prepares students for citizenship andenables students to overcome barriers that separatethem from one another, divide them from the worldthey need to know, and impede their intellectual

9

growth. It is in pursuit of such educational benefitthat colleges and universities strive to recruit, admit,and retain a diverse student body.

2. The Court Has Repeatedly RecognizedThe Educational Value Of A DiverseStudent Body.

The Court has three times recognized ascompelling the educational benefit that flows from adiverse student body. In Regents of University ofCalifornia v. Bakke, the Court reversed an injunctionthat barred the State from “ever considering the raceof any applicant.” 438 U.S. at 320 (opinion of theCourt). Justice Powell explained that “in arguingthat its universities must be accorded the right toselect those students who will contribute the most tothe ‘robust exchange of ideas,’ * * * petitioner mustbe viewed as seeking to achieve a goal that is ofparamount importance in the fulfillment of itsmission.” Id. at 313.

The Court elaborated twenty-five years later inGrutter. At issue was the University of MichiganLaw School’s use of race as a means to “obtain[ ] ‘theeducational benefits that flow from a diverse studentbody.’ ” 539 U.S. at 328 (citation omitted). The LawSchool explained that student body diversity was “ ‘ofparamount importance in the fulfillment of itsmission.’ ” Br. for Respondents in No. 02-241, at 28(quoting Bakke, 438 U.S. at 313 (opinion of Powell,J.)). A racially integrated learning environmenthelped its students “learn how to bridge racialdivides, work sensitively and effectively with peopleof different races, and simply overcome the initialdiscomfort of interacting with people visibly different

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from themselves that is a hallmark of humannature.” Id. at 25.

The Court upheld the Law School’s admissionspolicy and endorsed the pursuit of diversity in highereducation. Echoing Justice Powell’s Bakke opinion,the Court held that higher education institutionshave a compelling interest in “obtaining theeducational benefits that flow from a diverse studentbody.” Grutter, 539 U.S. at 343; see also Bakke, 438U.S. at 314 (opinion of Powell, J.) (“the interest ofdiversity is compelling in the context of a university’sadmissions program”). Those benefits, the Courtrecognized, are “substantial.” Grutter, 539 U.S. at330. “[N]umerous studies show that student bodydiversity promotes learning outcomes, * * * ‘betterprepares students for an increasingly diverseworkforce and society, and better prepares them asprofessionals.’ ” Id. (citation omitted).2 Diversityalso promotes cross-racial understanding, helps to

2 Research findings that support this conclusion have grownmore robust since 2003. See, e.g., A.L. Antonio et al.,Approaching Diversity Work in the University: Lessons from anAmerican Context, in As the World Turns: Implications ofGlobal Shifts in Higher Education for Theory, Research andPractice 371–401 (Walter R. Allen et al. eds. 2012); S. Hurtado& L. D’Angelo, Linking Diversity and Civic-Minded Practiceswith Student Outcomes: New Evidence from National Surveys,98 Liberal Education 2 (2012); N. Bowman, College DiversityExperiences and Cognitive Development: A Meta-Analysis, 80Review of Educational Research 4 (2010); N. Denson & M.J.Chang, Racial Diversity Matters: The Impact of Diversity-Related Student Engagement and Institutional Context, 46American Educational Research Journal 322 (2008); N.Gottfredson et al., Does Diversity at Undergraduate Institutions

, 1 Journal of Diversity in HigherEducation 80 (2008).

11

break down stereotypes, and enables students tounderstand better those who are different. Id. Toseek these benefits through diversity is properlyunderstood to be at the core of institutions’ academicmission. Id. at 329.

As the Court in Grutter observed, the educationalbenefit of diversity is “not theoretical but real.” Id.at 330. Although it canvassed evidence thatdemonstrates the benefit of diversity in highereducation, the Court did not purport to weigh thatevidence de novo. Such an exercise would have beenmisguided, for judges are ill-equipped to assess themerits of particular educational approaches. SeeRegents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226(1985). Universities themselves have the “experienceand expertise” to make educational judgments.Grutter, 539 U.S. at 333. Accordingly, the Courtaccepted the Law School’s judgment that attainingstudent body diversity was essential to itseducational mission. Id. at 328.

In Fisher I, the Court reaffirmed that “the decisionto pursue ‘the educational benefits that flow fromstudent body diversity,’ that the University deemsintegral to its mission is, in substantial measure, anacademic judgment to which some, but not complete,judicial deference is proper under Grutter.” 133 S.Ct. at 2419 (italics added) (citation omitted). “Acourt, of course, should ensure that there is areasoned, principled explanation for the decision.”Id.

Such regard is particularly appropriate in light ofthe “special niche” universities occupy in theAmerican constitutional tradition. Grutter, 539 U.S.

12

at 329. The Constitution protects universities’freedom to define and pursue educational goals. See,e.g., Ewing, 474 U.S. at 225; Bd. of Curators of Univ.of Mo. v. Horowitz, 435 U.S. 78, 96 n.6 (1978); Bakke,438 U.S. at 319 n.53 (opinion of Powell, J.).Academic freedom extends beyond scholarship togovernance by the academies themselves, includingcontrol over the composition of the student body.Grutter, 539 U.S. at 329 (citing Bakke, 438 U.S. at312 (opinion of Powell, J.)); see also Edwards v. Cal.Univ. of Penn., 156 F.3d 488, 492 (3d Cir. 1998)(Alito, J.).

B. To Compose An Entering Class Likely To ProduceThe Benefit Of Diversity Entails Institution-specificEducationalJudgments.

While the means chosen to pursue diversity aresubject to judicial scrutiny, the Court should reaffirmthat higher education institutions make educationaljudgments not only with respect to the overarchinggoal of achieving the educational benefit of a diversestudent body, but also with respect to determininghow that principle shall govern particularinstitutional contexts. To compose an entering classis an art that requires educational judgment at everystep.

Determinations about what kinds of diversity, andhow much, a higher education institution needs toachieve the educational benefit sought entailquintessential academic judgment. Grutter, 539 U.S.at 328-329, 333. Because it is at the heart of “auniversity’s definition of its educational objective,”id. at 388 (Kennedy, J. dissenting), diversity is bestdefined by an institution for itself, in accordance

13

with its mission and concept of education. Theconstitutionally protected freedom to assemble adiverse student body would amount to little if it didnot include the freedom to define the diversitysought.

Grutter endorsed judicial regard for an institution’sown conception of diversity. The University ofMichigan Law School identified one particularconception of diversity—“ ‘enroll[ing] a “criticalmass” of minority students’ ”—and determined thatattaining critical mass was “necessary to further itscompelling interest in securing the educationalbenefits of a diverse student body.” 539 U.S. at 329,333 (quoting Br. for Respondent in No. 02-241, at13). The Court accepted that judgment, based inpart on the Law School’s “experience and expertise”within the educational realm. Id. But one lawschool’s particular judgment about what type ofdiversity to pursue in light of its mission does notbind every other college and university in the nation.

The First Amendment affords each institution“particular latitude in defining diversity.” ParentsInvolved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551U.S. 701, 792 (2007) (Kennedy, J., concurring in partand concurring in the judgment) (“PICS”); see alsoGrutter, 539 U.S. at 388 (Kennedy, J., dissenting)(distinguishing permissible “deference to auniversity’s definition of its educational objective”from impermissible “deference to the implementationof this goal”). What constitutes diversity sufficientfor the educational objectives of one school may notbe suitable at another.

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Judicial regard is owed educators’ educationallyderived conceptions of diversity because suchmatters require evaluation of cumulativeinformation for which those responsible for highereducation are best qualified. See Ewing, 474 U.S. at226. The mix of students that affects learninginvolves considerations educators are best equippedto gauge.

Such judgments often start with institutionalmission and context. The educational experience asmall New England liberal arts college aims toimpart may call for a student body different fromthat appropriate for a flagship state university.Such judgments also require understanding ofcampus and pedagogical dynamics, cognitiveprocesses, and ways to nurture students’ capacity formoral reasoning, along with other specializedknowledge in which educators are trained.Institutions seek to build the strongest possibleclass—the class most conducive to mission andlearning—in a fast-moving, ever-changingcompetitive context. They may consider, forexample, maintaining and improving academicstrength under traditional measures (such as testscores and grades); need to fill various academic andcocurricular programs (such as athletics and arts);likelihood of enrollment by admitted students at agiven institution; and other factors. Institutionsconsider those factors in light of unique, evolvinginstitutional contexts. These “complex educationaljudgments” lie “primarily within the expertise of theuniversity.” Grutter, 539 U.S. at 328.

Selective institutions typically have many morequalified applicants than spaces; and applications

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rarely tell the “whole story.” For instance, gradesfrom different schools have differing significance,and scores on standardized tests may not correlatewith the applicant’s academic motivation orpotential. Confronted with this challenge, manyselective institutions engage in holistic review. See,e.g., Lorelle L. Espinosa, Matthew N. Gaertner, andGary Orfield, Race, Class, & College Access:Achieving Diversity in a Shifting Legal Landscape,57, Appendix B (2015) (“Race, Class ”).

Holistic review respects each applicant’sindividuality in light of the totality of circumstances,and assesses the fit between the applicant, theinstitution, and the class under construction. Basedon their knowledge of the institution’s mission andexperience as educators, admissions officers appraisethe applicants most likely to benefit from theinstitution’s educational offerings and to contributeto its educational environment. The goal is a newclass that will produce a vibrant community forlearning.

Moreover, the ultimate educational judgment as towho is admitted is a judgment without anunarguably right or wrong answer. As PrincetonUniversity explains: “Most of our applicants are wellqualified for Princeton. Since the admission staffmust select a freshman class from an abundance ofhighly able and accomplished candidates, and sinceall applicants are compared to the entire applicantpool, it is extremely difficult to explain why any onestudent is refused.” Princeton University, TheAdmission Decision,https://admission.princeton.edu/applyingforadmissio

16

n/admission-faqs/admission-decision (last visited Oct.10, 2015).

Neither the judiciary nor government departmentsare as qualified as are educators to assess the mix ofapplicants most likely to catalyze the highest levelsof learning. The Court has rejected any requirementthat an institution must define its interest in evenmeasurable terms. As the Court stated in Gratz,“Petitioners further argue that ‘diversity as a basisfor employing racial preferences is simply too open-ended, ill-defined, and indefinite to constitute acompelling interest capable of supporting narrowly-tailored means.’ But for the reasons set forth todayin [Grutter], the Court has rejected these argumentsof petitioners.” Gratz v. Bollinger, 539 U.S. 244, 268(2003) (citations omitted). Judicial scrutiny is “noless strict for taking into account complexeducational judgments in an area that lies primarilywithin the expertise of the university.” Grutter, 539U.S. at 328.

C. Judicial Regard For These EducationalJudgments Undergirds The Finest HigherEducation System In The World.

American higher education is preeminent in theworld and a beacon to other countries. E.g., IanWilhelm, “U.S. Is Ranked as Top Higher-EducationSystem in the World,” The Chronicle of HigherEducation (May 14, 2014). In no small measure, thatstanding derives from America’s decentralized highereducation system in which institutions pursue theirrespective missions in their respective ways. Suchinstitutional pluralism has flourished in consequenceof a tradition of government forbearance that is at

17

least as old as the nation. See, e.g., 1 RichardHofstadter and Wilson Smith eds., American HigherEducation: A Documentary History 157 (1961)(during George Washington’s administration,Congress refused to establish a national universitythat would set federal standards for all new collegesand universities); Trs. of Dartmouth Coll. v.Woodward, 17 U.S. (4 Wheat.) 518 (1819); 20 U.S.C.§ 1232a.

Courts are not “suited to evaluate the substance ofthe multitude of academic decisions that are madedaily by faculty members of public educationalinstitutions—decisions that require ‘an expertevaluation of cumulative information and [are] notreadily adapted to the procedural tools of judicial oradministrative decisionmaking.’ ” Ewing, 474 U.S.at 226 (citation omitted).

For courts to override educators’ reasonedjudgment on how and what kinds of diversity yieldeducational benefit would truncate Americancolleges’ and universities’ historic right to assemblestudents in a way that fits the institutions’educational philosophies and contexts—philosophiesand contexts that with salutary effect are themselvesextraordinarily varied. See Carnegie Comm’n onHigher Educ., Reform on Campus: ChangingStudents, Changing Academic Programs 35 (1972).Determinations of the contours of the compellinginterest in diversity are rooted in educationaljudgment that merits judicial regard. See Ewing,474 U.S. at 226, n.12 (explaining the authority ofcolleges and universities extends to “autonomousdecisionmaking by the academy itself”).

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II. NARROW TAILORING ASSESSES MEANS,NOT ENDS.

Petitioner argues that the top 10% plan generatedsufficient diversity and made the University ofTexas’s race-conscious holistic review unnecessary.Pet. Br. at 45-46. That argument misreads Fisher I’scall for narrow tailoring. Petitioner asks the courtsto appraise and recast for themselves each college’sand university’s compelling interest in studentdiversity. That course of action would truncateinstitutional pluralism, a hallmark of Americanhigher education. Strict scrutiny does not requireand should not tolerate that result.

A. The Proper Analysis Is Whether TheMeans Chosen By The Institution ToAttain Diversity Are Narrowly Tailored ToThe Goal.

Narrow tailoring asks whether “the means chosenby the University to attain diversity are narrowlytailored to that goal.” Fisher I, 133 S. Ct. at 2420.The question requires “careful judicial inquiry intowhether a university could achieve sufficientdiversity without using racial classifications” at“ ‘tolerable administrative expense.’ ” Id. (citationomitted).

Thus, the goal—the compelling interest—informsthe narrow tailoring inquiry. The compellinginterest in securing the educational benefit of adiverse student body is “complex.” Id. at 2418. It“ ‘encompasses a far broader array of qualificationsand characteristics of which racial or ethnic origin isbut a single though important element.’ ” Id.(quoting Bakke, 438 U.S. at 315 (opinion of Powell,

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J.)). As Part I addresses, colleges and universitiesmust consider which particular conception ofdiversity will best serve their educational goals.Such determinations are contextual. They arespecific to each institution. They may change overtime. They warrant judicial regard.

Colleges and universities do not have unfettereddiscretion to make such determinations. They mustbe able to articulate a “reasoned, principledexplanation” for their academic decisions. Fisher I,133 S. Ct. at 2419. And they may not definediversity in numeric terms. See, e.g., id. (“Auniversity is not permitted to define diversity as‘some specified percentage of a particular groupmerely because of its race or ethnic origin.’ ”)(citation omitted). Even quantitative critical-masstargets can cause Constitutional concern. E.g.,Grutter, 539 U.S. at 392 (use of daily reports could beused to “recalibrate the plus factor given to racedepending on how close they were to achieving theLaw School’s goal of critical mass. The bonus factorof race would then become divorced from individualreview; it would be premised instead on thenumerical objective set by the Law School”)(Kennedy, J., dissenting); cf. Gratz, 539 U.S. at 271(no “single characteristic” should automaticallyensure a “specific and identifiable contribution to auniversity’s diversity”).

Petitioner now asks the Court to endorse anapproach that would allow judges to do in litigationwhat institutions may not do in admissions—definehow much diversity is enough by drawing a numeric

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line based on strict racial demographics.3 Cf. PICS,551 U.S. at 723 (“The point of the narrow tailoringanalysis in which the Grutter Court engaged was toensure that the use of racial classifications wasindeed part of a broader assessment of diversity, andnot simply an effort to achieve racial balance, whichthe Court explained would be ‘patentlyunconstitutional.’ ”) (citation omitted).

Under Petitioner’s approach, case law coulddevelop national standards for the amount and kindof diversity that suffices. Such national standardswould trench on both the professional judgment ofeducators and institutional pluralism. Petitioner’sapproach could leave institutions paralyzed, unsurewhether and when a court would nullify andsupersede their educational judgments and by whatmeasure. Strict scrutiny must not become “ ‘strict intheory, but fatal in fact.’ ” Grutter, 539 U.S. at 326(citation omitted).

B. Race-neutral Alternatives Are Inappropriate IfThey Thwart An Institution’s EducationalJudgments.

Narrow tailoring requires a court to satisfy itselfthat workable race-neutral approaches would notproduce the educational benefit of diversity. FisherI, 133 S. Ct. at 2420. An alternative is workablewhen it would achieve the educational benefit of

3 Pet. Br. at 45–46 (arguing the University of Texas “has notmet its burden of demonstrating why it has not yet achievedcritical mass” and that “UT’s own admissions statisticsdemonstrate that UT effectively achieved critical mass no laterthan 2003, the last year it employed its race neutral admissionsplan”).

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diversity “ ‘about as well’ ” as race-conscious meansat “ ‘tolerable administrative expense.’ ” Id. (citationomitted).

The Court should reaffirm its precedent thatnarrow tailoring does not require a college oruniversity to pursue race-neutral alternatives thatwould thwart its educational objectives. See Grutter,539 U.S. at 340 (“We are satisfied that the LawSchool adequately considered race-neutralalternatives currently capable of producing a criticalmass without forcing the Law School to abandon theacademic selectivity that is the cornerstone of itseducational mission.”). These judgments relate tothe institution’s mission and vary from school toschool.

An open enrollment or lottery system might yieldstudent body diversity, but would eliminate aninstitution’s opportunity to select the most talentedstudents who are best equipped to learn with andfrom one another. Such a system would frustrateany selective institution’s mission. Strict scrutinydoes not and should not require exhaustion of race-neutral alternatives that thwart the institution’seducational judgments.

C. Narrow Tailoring Should Not BeInterpreted To Forbid Race-consciousHolistic Review Simply Because TheReview Operates Concurrently With Race-neutral Mechanisms.

Colleges and universities that seek the educationalbenefit of diversity commonly use race-neutralstrategies, such as targeted recruitment orcommunity college transfer programs, together with

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race-conscious holistic review. E.g., Race, Class, ativ (“Institutions that consider race in admissionsdecisions use other race-conscious and race-neutraldiversity strategies more often and find them moreeffective than institutions that use race-neutralstrategies alone.”); id. at 27-28, 57 (identifying morethan 15 race-neutral strategies).

It can be difficult to disentangle with confidencethe effect of various strategies to admit a diversestudent body. Narrow tailoring should not beinterpreted to forbid race-conscious holistic reviewmerely because race-neutral tools contribute tosuccess in achieving unquantifiable goals.

For example, a small, selective institution mightcreate a transfer program from community collegesin nearby cities. That program might ultimatelygenerate in numeric terms a significant number ofstudents from an underrepresented minority group.But that fact alone should not stop the institutionfrom concluding that the educational benefit ofdiversity would be well-served by admitting studentsof the same minority group who grew up in otherparts of the country, including through race-conscious holistic review.

“Context matters” when applying strict scrutiny.Grutter, 539 U.S. at 327. A selective institution’sdifficult educational judgments, in which race is onefactor of many that bear on applicants’ relativepotential contributions to a class, are altogetherdifferent than a school district’s assignment ofstudents to elementary school on the basis of “acrude system of individual racial classifications” inwhich race decides every contested case. See PICS,

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551 U.S. at 789 (Kennedy, J. concurring in part andconcurring in the judgment). Holistic reviewinvolves no “[r]eduction of an individual to anassigned racial identity for differential treatment” ortelling “each student he or she is to be defined byrace.” Id. at 789, 795. Rather, holistic reviewinvolves considering a student’s race as one smallpart of an overall (if imperfect) assessment of thestudent’s likely contribution to a vibrant educationalenvironment in a nation in which the “enduring hopeis that race should not matter; the reality is that toooften it does.” Id. at 787.

CONCLUSION

For the foregoing reasons, the Court should affirmthat the University of Texas’s determination of itsstudent diversity goal and progress toward that goalmerit judicial regard, and that no one conception ofstudent diversity binds all of American highereducation.

Respectfully submitted,

PETER G. MCDONOUGH

American Councilon Education

One Dupont CircleWashington, DC 20036(202) 939-9300

MARTIN MICHAELSON *ELIZABETH B. MEERS

JOEL D. BUCKMAN

Hogan Lovells US LLP555 Thirteenth St., NWWashington, DC 20004(202) 637-5600

* Counsel of Record Counsel for Amici Curiae

October 30, 2015

ADDENDUM

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ADDENDUM: AMICI ON THIS BRIEF

The American Council on Education is describedat page 2 of this brief.

The Accreditation Council for PharmacyEducation (ACPE) is the national agency for theaccreditation of professional degree programs inpharmacy and of providers of continuingpharmacy education.

The American Anthropological Association (AAA)represents more than 11,000 archaeologists andanthropologists in the academy and practice.

The American Association of Community Colleges(AACC) is the primary advocacy organization forthe nation’s community colleges. It representsnearly 1,200 two-year, associate degree-grantinginstitutions.

The American Association of State Colleges andUniversities (AASCU) includes as members morethan 400 public colleges, universities, andsystems whose members share a learning- andteaching-centered culture, a historic commitmentto underserved student populations, and adedication to research and creativity thatadvances their regions’ economic progress andcultural development.

The American Association of UniversityProfessors (AAUP) represents the interests ofover 40,000 faculty, librarians, graduate students,and academic professionals. AAUP defendsacademic freedom and the free exchange of ideasin higher education.

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The American College Personnel Association(ACPA) is the largest comprehensive studentaffairs association that advances student affairsand engages students for a lifetime of learningand discovery. ACPA, with almost 8,000members, supports and fosters college studentlearning through the generation anddissemination of knowledge, which informspolicies, practices, and programs for studentaffairs professionals and the higher educationcommunity.

The American Indian Higher EducationConsortium (AIHEC) is the unifying voice of ournation’s 37 Tribal Colleges and Universities—federally recognized public institutions workingto strengthen tribal nations and make a lastingdifference in the lives of American Indians andAlaska Natives. Through public policy, advocacy,research, and program initiatives, AIHEC strivesto ensure strong tribal sovereignty throughexcellence in American Indian higher education.

The American Speech-Language-HearingAssociation (ASHA) is the national professional,scientific, and credentialing association for182,000 members and affiliates who areaudiologists; speech-language pathologists;speech, language, and hearing scientists;audiology and speech-language pathology supportpersonnel; and students.

The APPA, “Leadership in Educational Facilities”(APPA) promotes leadership in educationalfacilities for its more than 5,200 professional

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members throughout the United States, Canada,and abroad.

The Association of American Colleges andUniversities (AAC&U) has more than 1,300member institutions, including accredited publicand private colleges, community colleges, anduniversities of every type and size. Its mission isto reinforce commitment to liberal education andinclusive excellence, and help institutionsprioritize the quality of student learning.

The Association of American Universities (AAU)is an association of 62 leading public and privateresearch universities in the United States andCanada. Founded in 1900 to advance theinternational standing of U.S. researchuniversities, AAU today focuses on issues that areimportant to research-intensive universities, suchas funding for research, research policy issues,and graduate and undergraduate education.

The Association of Community College Trustees(ACCT) represents over 6,000 board memberswho govern community, technical, and juniorcolleges.

The Association of Governing Boards ofUniversities and Colleges (AGB) serves theinterests and needs of academic governing boards,boards of institutionally related foundations, andcampus CEOs and other senior-level campusadministrators on issues related to highereducation governance and leadership. Its missionis to strengthen, protect, and advocate on behalfof citizen trusteeship that supports and advanceshigher education.

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The Association of Jesuit Colleges andUniversities (AJCU) represents all 28 Jesuitinstitutions in the U.S. and is affiliated with over100 Jesuit institutions worldwide. The firstJesuit institution opened in 1548 in Messina,Sicily, and Jesuit institutions remain committedto academic rigor, with a focus on qualityteaching, learning, and research to educate thewhole person.

The Association of Public and Land-grantUniversities (APLU) is a research, policy, andadvocacy organization with a membership of 237public universities in all 50 states and theDistrict of Columbia (as well as 13 in Canada andMexico), land-grant institutions, state universitysystems, and affiliated organizations.

The Association of Research Libraries (ARL) is anonprofit organization of 124 research libraries atcomprehensive, research institutions in the U.S.and Canada that share similar research missions,aspirations, and achievements.

The Association to Advance Collegiate Schools ofBusiness (AACSB) represents more than 1,400business schools worldwide in 90 countries andterritories. Its mission is to advance qualitymanagement education worldwide throughaccreditation, thought leadership, and value-added services.

The College and University ProfessionalAssociation for Human Resources (CUPA-HR),the voice of human resources in higher education,represents more than 14,000 human-resourcesprofessionals at over 1,800 colleges and

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universities. Its membership includes 92 percentof all United States doctoral institutions, 75percent of all master’s institutions, 60 percent ofall bachelor’s institutions, and nearly 600 two-year and specialized institutions.

The Commission on Institutions of HigherEducation of the New England Association ofSchools and Colleges (CIHE of NEASC) accredits240 colleges and universities in the six NewEngland states.

The Council for Advancement and Support ofEducation (CASE) is a professional associationserving educational institutions and theadvancement professionals who work on theirbehalf in alumni relations, communications,development, marketing, and allied areas. CASEhelps its members build stronger relationshipswith their alumni and donors, raise funds forcampus projects, produce recruitment materials,market their institutions to prospective students,diversify the profession, and foster public supportof education.

The Council of Graduate Schools (CGS) is anorganization of institutions of higher education inthe United States, Canada, and across the globeengaged in graduate education, research,scholarship, and the preparation of candidates foradvanced degrees.

The Council of Independent Colleges (CIC) is anassociation of 755 nonprofit independent collegesand universities and higher education affiliatesand organizations that works to support collegeand university leadership, advance institutional

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excellence, and enhance public understanding ofprivate higher education’s contributions tosociety. CIC conducts the largest annualconferences for presidents and chief academicofficers, and supports state fundraisingassociations that organize programs and generatecontributions for private colleges.

EDUCAUSE is an association of over 2,400colleges, universities, and related organizationswhose mission is to advance higher educationthrough the use of information technology

The Graduate Management Admission Council(GMAC) is an organization of more than 200leading graduate management school memberslocated in the United States and worldwide. Itowns and administers the GMAT® exam andprovides research and market intelligence,marketing and recruiting tools and programs,worldwide professional developmentopportunities, and innovative grant initiativesdesigned to serve the graduate managementcommunity.

The Group for the Advancement of DoctoralEducation in Social Work is an organization madeup of over 80 social work doctoral programdirectors worldwide who represent their memberUniversities. GADE’s primary purpose is topromote excellence in doctoral education in socialwork, especially through networking, informationsharing, and advocacy.

The Hispanic Association of Colleges andUniversities (HACU), founded in 1986, representsmore than 400 colleges and universities

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committed to Hispanic higher education successin the U.S., Puerto Rico, Latin America, andSpain.

The Middle States Commission on HigherEducation (MSCHE) is a regional accreditingagency that accredits a diverse group of 534colleges and universities located in New York,New Jersey, Pennsylvania, Maryland, Delaware,the District of Columbia, Puerto Rico, the U.S.Virgin Islands, and some international locations.

The National Association for Equal Opportunityin Higher Education (NAFEO) is the umbrellaorganization of the nation’s Historically BlackColleges and Universities and PredominantlyBlack Institutions. It represents the presidentsand chancellors of the diverse black colleges anduniversities: public, private, and land-grant, two-year, four-year, graduate, and professional,historically and predominantly black colleges anduniversities

The National Association of College andUniversity Business Officers (NACUBO)represents more than 2,500 colleges, universities,and higher education service providers. Itrepresents chief business and financial officersthrough advocacy efforts, community service, andprofessional development activities. NACUBO’smission is to advance the economic viability andbusiness practices of higher educationinstitutions in fulfillment of their academicmissions.

The National Association of Diversity Officers inHigher Education (NADOHE) is the leading voice

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of chief diversity officers in higher education. Itsmembership includes almost 200 colleges anduniversities, as well as individual members,affiliated professional organizations, and twoformal state chapters.

The National Association of Independent Collegesand Universities (NAICU) has more than 1,000member institutions and associations and servesas the unified national voice of independenthigher education, reflecting the diversity ofprivate, nonprofit higher education in the UnitedStates. NAICU’s 963 member institutions, whichserve more than three million students, includemajor research universities, church-relatedcolleges, historically black colleges, art and designcolleges, traditional liberal arts and scienceinstitutions, women’s colleges, two-year colleges,and schools of law, medicine, engineering,business, and other professions

The National Association of Student FinancialAid Administrators (NASFAA) represents morethan 18,000 student financial assistanceprofessionals at nearly 2,800 institutions ofhigher education, serving over 16 millionstudents. It supports the training, diversity, andprofessional development of financial aidadministrators; advocates for public policies andprograms that increase student access to andsuccess in postsecondary education; and serves asa forum for communication and collaboration onstudent financial aid issues.

The National Collegiate Athletic Association(NCAA) serves as the organizing, regulating, and

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standard-setting body for 23 intercollegiatesports. The NCAA’s active membership includesover 1,000 institutions of higher education thatjointly create seasons of amateur intercollegiatecompetition across three Divisions.

The Southern Association of Colleges and SchoolsCommission on Colleges (SACSCOC) is theregional body for the accreditation of degree-granting higher education institutions in 11Southern states. Its mission is the enhancementof educational quality throughout the region, andit strives to improve the effectiveness ofinstitutions by ensuring that institutions meetstandards established by the higher educationcommunity that address the needs of society andstudents.

Student Affairs Administrators in HigherEducation (NASPA) is the leading association forthe advancement, health, and sustainability ofthe student affairs profession. It serves a fullrange of professionals who provide programs,experiences, and services that cultivate studentlearning and success in concert with the missionof our colleges and universities. NASPA has morethan 13,000 members in all 50 states, 29countries, and 8 U.S. Territories.

The Thurgood Marshall College Fund (TMCF) isthe only national organization founded for thesole purpose of providing scholarships to studentsattending the nation’s public Historically BlackColleges and Universities. In addition toscholarships, TMCF provides leadershipdevelopment, and training as well as

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programmatic and capacity building and policyand advocacy support to its member schools.

The WASC Senior College and UniversityCommission is a regional accrediting agencyserving a diverse membership of public andprivate higher education institutions throughoutCalifornia, Hawaii, and the Pacific as well as alimited number of institutions outside the U.S.