in the supreme court of the united states · 2016-08-11 · no. 11-345 in the supreme court of the...

No. 11-345

In the

Supreme Court of the United States--------------------------------

ABIGAIL NOEL FISHER,Petitioner,

v.

UNIVERSITY OF TEXAS AT AUSTIN, ET AL.,Respondents.

--------------------------------

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

===============

BRIEF OF SOCIAL AND ORGANIZATIONALPSYCHOLOGISTS AS AMICI CURIAE

SUPPORTING RESPONDENTS===============

EVA PATERSON

Counsel of RecordALLISON S. ELGART

FABIÁN RENTERÍA

EQUAL JUSTICE SOCIETY

260 California Street,Suite 700

San Francisco, CA 94111(415) 288-8700epaterson@

equaljusticesociety.org

DAVID J. BERGER

ELIZABETH M. SAUNDERS

SAVITH S. IYENGAR

RO KHANNA

WILSON SONSINI

GOODRICH & ROSATI, PCOne Market Street,

Suite 3300San Francisco, CA 94105(415) [email protected]

JOHN A. POWELL

STEPHEN MENENDIAN

HAAS DIVERSITY RESEARCH

CENTER, UNIVERSITY OF

CALIFORNIA, BERKELEY

104 California Hall, #1500Berkeley, CA 94720(510) [email protected]

Counsel for Amici Curiae

stedtz

ABA Preview Stamp

www.supremecourtpreview.org

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QUESTION PRESENTED

Whether the University of Texas at Austin’slimited consideration of race in its individualizedadmissions policy is narrowly tailored to serve acompelling governmental interest in achieving thesignificant benefits of diversity in higher education,as articulated in Grutter v. Bollinger, 539 U.S. 306(2003), and supported by recent social scienceresearch.

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TABLE OF CONTENTSPage

QUESTION PRESENTED ......................................... i

TABLE OF AUTHORITIES .......................................v

IDENTITY AND INTEREST OF AMICICURIAE.......................................................................1

SUMMARY OF ARGUMENT.....................................1

ARGUMENT ...............................................................3

I. DIVERSITY IN HIGHER EDUCATIONIS A COMPELLING INTEREST.....................3

A. Recent Social Science StudiesDeepen Scientists’ Understanding ofthe Benefits of Diversity .............................4

1. Diversity Helps All Students byReducing Anxieties That MayResult from InterracialInteractions............................................4

2. Diversity Reduces Prejudice andBias.........................................................6

3. Diversity Reduces the RacialIsolation or Solo Status ofUnderrepresented Students ..................9

4. Diversity Reduces the Effects ofStereotype Threat on AcademicPerformance .........................................12

a. Stereotype threat experiencesare linked to physiologicalstress reactions. .............................14

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TABLE OF CONTENTS—ContinuedPage

b. The actual and perceiveddiversity of a universityenvironment is an importantpart of developing a sense ofbelonging—a predictor foracademic success—forstudents who experiencestereotype threat. ..........................15

B. Social Science Studies Show ThatDiversity Leads to A More Vibrantand Productive Workforce and CivicLife.............................................................17

II. UT’S HOLISTIC ADMISSIONSPOLICY IS NARROWLY TAILOREDAND NECESSARY TO ACHIEVE ITSCOMPELLING DIVERSITYINTEREST......................................................22

A. UT’s Policy Is Narrowly TailoredBecause It Preserves IndividualizedReview .......................................................23

B. UT’s Policy Is Necessary to AchieveA Compelling Interest...............................26

1. The Convergence of MultipleFactors Inextricably Linked toRace Inhibits EducationalOpportunity..........................................27

2. Residential SegregationNecessitates A Race-ConsciousAdmissions Policy to AchieveUT’s Diversity Interest........................32

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TABLE OF CONTENTS—ContinuedPage

CONCLUSION..........................................................37

APPENDIX: LIST OF AMICI CURIAE...................38

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TABLE OF AUTHORITIESPage(s)

CASES

Brown v. Board of Education,347 U.S. 483 (1954) ..................................27, 31

City of Richmond v. J.A. Croson Co.,488 U.S. 469 (1989) ........................................34

Fisher v. University of Texas at Austin,631 F.3d 213 (5th Cir. 2011) ........24, 25, 34, 35

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

Parents Involved in Community Schools v.Seattle School District No. 1,551 U.S. 701 (2007) ......................21, 22, 28, 35

Regents of the University of California v.Bakke,438 U.S. 265 (1978) ........................................17

OTHER AUTHORITIES

Amy J. Orr, Black-White Differences inAchievement: The Importance of Wealth,76 Am. Soc. Ass’n 281 (2003) .........................30

Angel Harris & Marta Tienda, MinorityHigher Education Pipeline:Consequences of Changes in CollegeAdmissions Policy in Texas, 627 AnnalsAm. Acad. Pol. & Soc. Sci. 60 (2010)..............32

Anthony Lising Antonio et al., Effects ofRacial Diversity on Complex Thinkingin College Students, 15 Psychol. Sci. 507(2004) ..............................................................18

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TABLE OF AUTHORITIES—ContinuedPage(s)

Anthony P. Carnevale & Stephen J. Rose,“Socioeconomic Status, Race/Ethnicityand Selective College Admissions,” inAmerica’s Untapped Resource: LowIncome Students in Higher Education106 (Richard D. Kahlenberg ed., 2004) .........30

Claude M. Steele & Joshua Aronson,Stereotype Threat and the IntellectualTest Performance of African Americans,69 J. Personality & Soc. Psychol. 797(1995) ..............................................................13

Colette Van Laar, Shana Levin, StaceySinclair & Jim Sidanius, The Effect ofUniversity Roommate Contact on EthnicAttitudes and Behavior, 41 J.Experimental Soc. Psychol. 329 (2004) ...........8

College Board, 2009 College-Bound Seniors:Total Group Profile Report (2009)..................30

Craig Gurian, Mapping and Analysis of NewData Documents Still-SegregatedAmerica, Remapping Debate (Jan. 18,2011), available athttp://www.remappingdebate.org/map-data-tool/mapping-and-analysis-new-data-documents-still-segregated-america-0 ........................................................32

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Denise Sekaquaptewa et al., Solo Status andSelf-Construal: Being DistinctiveInfluences Racial Self-Construal andPerformance Apprehension in AfricanAmerican Women, 13 Cultural Diversity& Ethnic Minority Psychol. 321 (2007) ...10, 11

Denise Sekaquaptewa & Mischa Thompson,The Differential Effects of Solo Statuson Members of High- and Low-StatusGroups, 28 Personality & Soc. Psychol.Bull. 694 (2002) ..........................................9, 10

Elizabeth Anderson, The Imperative ofIntegration (2010) ...........................................31

Elizabeth Page-Gould, Rodolfo Mendoza-Denton & Linda R. Tropp, With a LittleHelp From My Cross-Group Friend:Reducing Anxiety in Intergroup ContextsThrough Cross-Group Friendship, 95 J.Personality & Soc. Psychol. 1080 (2008) ......... 6

Elizabeth Page-Gould, Wendy Berry Mendes& Brenda Major, Intergroup ContactFacilitates Physiological RecoveryFollowing Stressful IntergroupInteractions, 46 J. Experimental Soc.Psychol. 854 (2010).......................................4, 5

Eric Hanushek, The Impact of DifferentialExpenditures on School Performance, 18Educ. Researcher 45 (1989) ...........................28

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Erica Frankenberg et al., A MultiracialSociety with Segregated Schools: Are WeLosing the Dream?, Harv. U. C.R.Project (2003)......................................29, 30, 33

Gary Orfield & Chungmei Lee, RacialTransformation and the ChangingNature of Segregation, Harv. U. C.R.Project (2006)............................................30, 33

Gary Orfield & Dean Whitla, “Diversity andLegal Education: Student Experiencesin Leading Law Schools,” in DiversityChallenged: Evidence on the Impact ofAffirmative Action 143 (Gary Orfielded., 2001).........................................................18

Gregory M. Walton & Geoffrey L. Cohen, ABrief Social-Belonging InterventionImproves Academic and HealthOutcomes of Minority Students, 331 Sci.Mag. 1447 (2011) ......................................15, 16

Gregory M. Walton & Geoffrey L. Cohen, AQuestion of Belonging: Race, Social Fit,and Achievement, 92 J. Personality &Soc. Psychol. 82 (2007) ...................................15

J. R. Campbell et al., NAEP 1999 Trends inAcademic Progress: Three Decades ofStudent Performance, 2 Nat’l Center forEduc. Stat. 469 (2000) ....................................30

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Jim Blascovich, Wendy Berry Mendes, SarahB. Hunter, Brian Lickel & NenehKowai-Bell, Perceiver Threat in SocialInteractions With Stigmatized Others,80 J. Personality & Soc. Psychol. 253(2001) ............................................................4, 5

John F. Dovidio et al., Racial, Ethnic, andCultural Differences in Responding toDistinctiveness and Discrimination onCampus: Stigma and Common GroupIdentity, 57 J. Soc. Issues 167 (2001) ............12

Jonathan Kozol, Savage Inequalities: Childrenin America’s Schools (1992)............................28

Jonathan Kozol, Still Separate, Still Unequal:America’s Educational Apartheid, 311Harper’s Mag. 41 (2005).................................28

Katherine W. Phillips et al., Surface-LevelDiversity and Decision-Making inGroups: When Does Deep-LevelSimilarity Help?, 9 Group Processes &Intergroup Rel. 467 (2006) .............................18

Kevin Snider & John F. Dovidio, Ind. St. U., ASurvey of the Racial Climate at IndianaState University (1996)...................................12

Linda Darling-Hammond, The Color Line inAmerican Education: Race, Resources,and Student Achievement, 1 Du BoisRev. 213 (2004) ...............................................29

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Linda Darling-Hammond et al., Does TeacherCertification Matter? Evaluating theEvidence, 23 Educ. Evaluation & Pol’yAnalysis 57 (2001) ..........................................28

Linda Darling-Hammond & Peter Youngs,Defining “Highly Qualified Teachers”:What Does “Scientifically-BasedResearch” Actually Tell Us?, 31 Educ.Researcher 13 (2002)......................................28

Linda Darling-Hammond, Teacher Qualityand Student Achievement: A Review ofState Policy Evidence, 8 Educ. Pol’yAnalysis Archives 1 (2000).............................28

Marta Tienda & Sunny Xinchun Niu¸Capitalizing on Segregation, PretendingNeutrality: College Admissions and theTexas Top 10% Law, 8 Am. L. & Econ.Rev. 312 (2006) ...................................31, 33, 34

Natalie J. Shook & Russell H. Fazio,Interracial Roommate Relationships: AnExperimental Field Test of the ContactHypothesis, 19 Psychol. Sci. 717 (2008)...........9

Negin R. Toosi, Nalini Ambady, Laura G.Babbitt & Samuel R. Sommers, DyadicInterracial Interactions: A Meta-Analysis, 138 Psychol. Bull. 1 (2012)...............7

Patricia Gurin et al., The Benefits of Diversityin Education for DemocraticCitizenship, 60 J. Soc. Issues 17 (2004)...20, 21

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Patricia Gurin et al., Diversity and HigherEducation: Theory and Impact onEducational Outcomes, 72 Harv. Educ.Rev. 330 (2002) .........................................17, 20

Paul A. Jargowsky, Stunning Progress,Hidden Problems: The Dramatic Declineof Concentrated Poverty in the 1990s,Brookings Inst. (2003) ....................................30

Rhiannon N. Turner et al., Reducing Explicitand Implicit Outgroup Prejudice ViaDirect and Extended Contact: TheMediating Role of Self-Disclosure andIntergroup Anxiety, 93 J. Personality &Soc. Psychol. 369 (2007) ...............................7, 8

Robert J. Sampson et al., Durable Effects ofConcentrated Disadvantage on VerbalAbility Among African-AmericanChildren, 105 Proc. Nat’l Acad. Sci. 845(2008) ..............................................................29

Rodolfo Mendoza-Denton et al., Sensitivity toStatus-Based Rejection: Implications forAfrican American Students’ CollegeExperience, 83 J. Personality & Soc.Psychol. 896 (2002).........................................11

Samuel R. Sommers et al., Cognitive Effects ofRacial Diversity: White Individuals’Information Processing inHeterogeneous Groups, 44 J.Experimental Soc. Psychol. 1129 (2008) .19, 20

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Samuel R. Sommers, On Racial Diversity andGroup Decision Making: IdentifyingMultiple Effects of Racial Compositionon Jury Deliberations, 90 J. Personality& Soc. Psychol. 597 (2006) .............................19

Sapna Cheryan, Victoria C. Plaut, Paul G.Davies & Claude M. Steele, AmbientBelonging: How Stereotypical CuesImpact Gender Participation inComputer Science, 97 J. Personality &Soc. Psychol. 1045 (2009) ...............................16

Scott E. Page, The Difference: How the Powerof Diversity Creates Better Groups,Firms, Schools, and Societies (2007) .............18

Sean F. Reardon & Kendra Bischoff, Growthin the Residential Segregation ofFamilies by Income, US2010 Project(2011) ..............................................................29

Stereotype Threat: Theory, Process, andApplication (Michael Inzlicht & ToniSchmader eds., 2012) .....................................13

Sylvia Hurtado, The Next Generation ofDiversity and Intergroup RelationsResearch, 61 J. Soc. Issues 595 (2005).....20, 21

Thomas F. Pettigrew & Linda R. Tropp, AMeta-Analytic Test of IntergroupContact Theory, 90 J. Personality &Soc. Psychol. 751 (2006) ...................................7

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Toni Schmader, Chad E. Forbes, Shen Zhang& Wendy Berry Mendes, AMetacognitive Perspective on theCognitive Deficits Experienced inIntellectually ThreateningEnvironments, 35 Personality & Soc.Psychol. Bull. 584 (2009)................................14

Toni Schmader et al., An Integrated ProcessModel of Stereotype Threat Effects onPerformance, 115 Psychol. Rev. 336(2008) ..................................................13, 14, 15

U.S. Census Bureau, American CommunitySurvey, 2009 Data Release (Dec. 8,2011), available athttp://www.census.gov/acs/www/data_documentation/2009_release/ ...............32

Yolanda Flores Niemann & John F. Dovidio,Relationship of Solo Status, AcademicRank, and Perceived Distinctiveness toJob Satisfaction of Racial/EthnicMinorities, 83 J. Applied Psychol. 55(1998) ..............................................................12

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IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are social and organizationalpsychologists who study intergroup contact and thephysiological and/or psychological effects of a diverseenvironment.1 Amici are college and universityfaculty who have published numerous books andpeer-reviewed articles on topics such as the influenceof diversity on cognitive function, bias, and academicachievement. Amici, listed in the Appendix, file thisbrief to acquaint the Court with current socialscience research and its consequences for theconstitutionality of race-conscious admissionspolicies.

SUMMARY OF ARGUMENT

The Court ruled in Grutter v. Bollinger that arace-conscious university admissions policy meetsstrict scrutiny review if it fulfills a compellinggovernmental interest in student body diversity andis narrowly tailored to achieve this interest. 539U.S. 306, 325-26 (2003). Building on the socialscience that informed the Court’s opinion in Grutter,this brief updates the Court with the most recentsocial science research and offers a deeperunderstanding of why diversity is even more crucialto academic achievement and civic engagement thanpreviously understood. This brief complements but

1 Petitioner and Respondents have consented to thefiling of this brief in letters on file in the Clerk’s office. Nocounsel for Petitioner or Respondents authored this brief inwhole or in part, and no counsel or party made a monetarycontribution intended to fund the preparation or submission ofthis brief. No person other than amici curiae, their members,and their counsel, made a monetary contribution to itspreparation or submission.

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is distinct from other social science briefs submittedon behalf of Respondents. Amici discuss research—presented for the first time to the Court—on howdiversity facilitates better physiological regulation ofstress and threat responses in interracialinteractions, improves academic performance,reduces prejudice, and has broad positive effects oncivic and economic life.

The University of Texas (“UT” or “University”)employs a holistic admissions policy that, whencombined with the Top Ten Percent Plan (the“Plan”), is narrowly tailored to achieve theUniversity’s compelling interest in a diverse studentbody. Historical circumstances have resulted indisproportionate nationwide hypersegregation anddisparate educational opportunities that cannot beaccurately assessed without incorporating race as afactor in a holistic and individualized review of eachapplicant. UT’s admissions policy recognizes andaccounts for these circumstances. It is narrowlydesigned to preserve individualized assessment byconsidering race as only one of many factors inevaluating a student’s unique personal and lifeexperiences.

The Court should affirm the Fifth Circuit’sdecision because UT’s holistic admissions policy isnarrowly tailored to achieve the University’scompelling interest in a diverse educationalenvironment and its significant attendantphysiological and psychological benefits.

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ARGUMENT

I. DIVERSITY IN HIGHER EDUCATION ISA COMPELLING INTEREST

As the Court has long recognized, promotingdiversity in higher education is a compellinggovernmental interest. See Grutter, 539 U.S. at 329.In Grutter, the Court made clear that “attaining adiverse student body is at the heart of [aninstitution’s] mission,” id., and that publicuniversities have a compelling interest in “obtainingthe educational benefits that flow from a diversestudent body.” Id. at 343. The Court explained thatthese educational benefits were substantiated by“studies show[ing] that student body diversitypromotes learning outcomes, and better preparesstudents for an increasingly diverse workforce andsociety, and better prepares them as professionals.”Id. at 330 (internal quotation marks and citationomitted). Building on the social science findings theCourt considered in Grutter, this brief presents thenewest social science research offering a deeperunderstanding of how diversity functions and why itis even more crucial than previously understood.This research confirms that racial diversity amongstudents furthers critical educational, economic, andsocietal benefits that underlie UT’s compellinginterest.

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A. Recent Social Science StudiesDeepen Scientists’ Understandingof the Benefits of Diversity

1. Diversity Helps All Students byReducing Anxieties That May Resultfrom Interracial Interactions

Since Grutter, social scientists have expandedthe breadth of research demonstrating the benefitsof diversity.2 This research shows that initialinteractions with “outgroup” members (i.e.,individuals from distinct racial, socio-economic, orgender groups) can stimulate anxiety and distress.This initial anxiety manifests physiologically incardiovascular reactivity, increased production ofcortisol (commonly called the “stress hormone”), andchanges in the regularity of heart rate per breathingcycle. See Jim Blascovich, Wendy Berry Mendes,Sarah B. Hunter, Brian Lickel & Neneh Kowai-Bell,Perceiver Threat in Social Interactions WithStigmatized Others, 80 J. Personality & Soc. Psychol.253, 254 (2001); Elizabeth Page-Gould, Wendy BerryMendes & Brenda Major, Intergroup ContactFacilitates Physiological Recovery FollowingStressful Intergroup Interactions, 46 J. ExperimentalSoc. Psychol. 854, 855 (2010). However, empiricaldata shows that increased short- and long-termcontact with outgroup members ameliorates thesestress responses.

Research provides strong evidence that pastexperience with diverse groups of people,

2 This research directly refutes assertions byPetitioner’s amici. See Brief for Amici Curiae Pacific LegalFoundation et al. at 10-15.

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particularly through interracial contact, predictsfaster and more efficient physiological regulationacross various stress systems in the body. Previousinterracial contact predicts better recovery from anautonomic nervous system (ANS)3 stress response,enabling faster return to a regular heart rate, andquicker neuroendocrine recovery (measured bychanges in cortisol levels), rapidly ceasing theproduction of excess cortisol. Page-Gould, IntergroupContact, supra, at 854-56. Exposure to diversity alsohelps regulate cardiovascular threat response,measured by vascular contractility and loweredcirculatory resistance to blood flow. Blascovich,supra, at 263. For example, non-Black collegestudents who have high levels of past interracialcontact and who interact with a Black fellow studentto perform a specific task show lower cardiovascularthreat responses than college students with lowlevels of past interracial contact. Id. Thisphysiological regulation facilitates interaction withoutgroup members and adaptive coping withintergroup stress and improves long-termcardiovascular and psychological health, preventingchronic hypertension and increasing mentalresilience. Page-Gould, Intergroup Contact, supra,at 855, 858.

The physiological benefits of interracialinteractions that occur in diverse settings are not

3 To assess recovery from ANS stress responses, theauthors of the study monitored changes in respiratory sinusarrhythmia, a measure of parasympathetic activation thatreflects heart rate acceleration and deceleration during therespiratory cycle. Page-Gould, Intergroup Contact, supra, at855.

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just cumulative; they can appear in a matter ofweeks or even days, which is critical for studentswho arrive at college with little or no previousinterracial contact. A 2008 survey of Latino andWhite participants at a selective public universityfound that students who were implicitly prejudicedor concerned about outgroup rejection responded totheir first interracial interaction with an excessiverelease of cortisol, which appeared in saliva withintwenty minutes of first meeting the outgroupmember. Elizabeth Page-Gould, Rodolfo Mendoza-Denton & Linda R. Tropp, With a Little Help FromMy Cross-Group Friend: Reducing Anxiety inIntergroup Contexts Through Cross-GroupFriendship, 95 J. Personality & Soc. Psychol. 1080,1085, 1089 (2008). This physiological reactionsignificantly decreased over the course of only threeinterracial friendship meetings. Id. at 1089. Thisdata suggests that interracial contact lowers anxietylevels “relatively early in the development of cross-group friendship.” Id. (finding also that, after theirfinal cross-group meeting, “implicitly prejudicedparticipants sought out more intergroupinteractions, and participants felt less anxious in thediverse university environment”). Thus, interracialinteractions can produce short- and long-termphysiological benefits to students by reducing theirthreat and stress responses.

2. Diversity Reduces Prejudice andBias

In addition to improved physiologicalreactions and lower anxiety levels, social scienceresearch shows that interracial interactions reduceimplicit and explicit prejudices in the development ofinterpersonal relationships. In 2012, researchers

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from Columbia, Stanford, and Tufts Universitiesreleased a study that examined over forty years’worth of research on interracial interactions,compiling data from 81 different studies with anaggregate of 12,463 participants. Negin R. Toosi,Nalini Ambady, Laura G. Babbitt & Samuel R.Sommers, Dyadic Interracial Interactions: A Meta-Analysis, 138 Psychol. Bull. 1, 6-7 (2012). Thismeta-analysis found that participants engaging ininterracial interactions report feeling more negativeemotions (e.g., anxiety) than participants engagingin same-race interactions. Over time, however,repeated interracial interactions produced morepositive emotional experiences comparable to thoseof participants engaging in same-race interactions.Id. at 16, 18. Another post-Grutter meta-analysis ofover 200 studies, including samples of collegestudents, demonstrated that intergroup contact alsoreduces prejudice and improves attitudes towardsthe outgroup. See Thomas F. Pettigrew & Linda R.Tropp, A Meta-Analytic Test of Intergroup ContactTheory, 90 J. Personality & Soc. Psychol. 751 (2006).These analyses indicate that the benefits ofinterracial interaction increase over time and helpreduce bias, anxiety, and other negative emotionalresponses.

The benefits of diversity can begin to flourisheven when an individual has only indirect contactwith an outgroup, since an individual’s prejudicetowards the outgroup is reduced simply by virtue ofextended contact through an ingroup mutual friend.Rhiannon N. Turner et al., Reducing Explicit andImplicit Outgroup Prejudice Via Direct and ExtendedContact: The Mediating Role of Self-Disclosure andIntergroup Anxiety, 93 J. Personality & Soc. Psychol.

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369, 384 (2007) (studying White and South Asianhigh school students). Empirical evidencedemonstrates that “[e]xtended contact [is] associatedwith lower intergroup anxiety . . . which in turn [is]associated with more positive outgroup attitudes.”Id. at 377.4 Therefore, by engaging in interracialcontact or having close friends who do, individualsexperience less anxiety, increased empathy, andlower levels of prejudice towards outgroup members.

In a university setting, students who acquiremore cross-group friends during their undergraduateyears demonstrate decreased prejudice. See ColetteVan Laar, Shana Levin, Stacey Sinclair & JimSidanius, The Effect of University Roommate Contacton Ethnic Attitudes and Behavior, 41 J.Experimental Soc. Psychol. 329, 330 (2004)(“[S]tudents with more outgroup friendships . . .during their second and third years of universityshowed less prejudice at the end of university . . . .”).One longitudinal study examining two thousanduniversity students showed that both the randomassignment of interracial first-year roommates andvoluntarily selected second-year interracialroommate pairings are associated with reducedprejudice and increased “ethnic heterogeneity of[students’] friendship circle[s].” Id. at 338.Interracial roommate relationships are also“associated with increased interethnic competence[and] decreased interethnic unease.” Id. at 341. Amore recent study surveyed the attitudes of Whitefreshmen randomly assigned to a Black roommate in

4 Another study yielded similar findings with a largerindependent sample. See Turner, supra, at 369.

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college and found similar results after only a ten-week quarter, indicating that

racial attitudes of White students ininterracial rooms became more positivetoward [Blacks], whereas the attitudesof White students in same-race roomsdid not change. Participants ininterracial rooms also reporteddecreased intergroup anxiety toward[Blacks] at the end of the quarter,whereas participants in same-racerooms did not exhibit [such] change . . . .

Natalie J. Shook & Russell H. Fazio, InterracialRoommate Relationships: An Experimental FieldTest of the Contact Hypothesis, 19 Psychol. Sci. 717,721 (2008). These studies show that White students’implicit racial attitudes improve while living with anoutgroup roommate for a mere quarter term,underscoring the significance of interracialinteractions in the college setting in reducingprejudice. Because college is where manyindividuals experience their first meaningful andsustained contact with people of different races andbackgrounds, see infra Section I.B, these earlyinteractions can influence how those students willinteract with others as they seek to becomeproductive members of society.

3. Diversity Reduces the RacialIsolation or Solo Status ofUnderrepresented Students

Diversity within the classroom also reduces“solo status,” the isolation experienced byunderrepresented students that adversely impactsclassroom learning and performance. Denise

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Sekaquaptewa & Mischa Thompson, The DifferentialEffects of Solo Status on Members of High- and Low-Status Groups, 28 Personality & Soc. Psychol. Bull.694, 694 (2002) (defining solo status as “being theonly member of one’s social category in an otherwisehomogenous group”). While solo status canundermine the educational objectives of any student,it disproportionately impacts the classroomperformance of students from historicallystigmatized groups. Id. at 703.

Social scientists previously determined thatsolo status experienced during performance-orientedtasks (e.g., taking an exam, giving a presentation, orinterviewing) increases evaluation apprehensionbecause of the increased attention directed at theindividual, which increases the salience of socialcategorizations such as race. See id. at 696. Pre-Grutter research showed that individuals fromstereotypically low-status groups perform worsethan groups not bearing this stereotype, id. at 703,and that “the impact of being different from the restof one’s group is greatest when it counts the most:when one is called on to demonstrate one’s abilitiesand skills under the scrutiny of others.” Id. at 705.

New social science findings reveal thatstudents experiencing solo status see themselves asrepresentatives of their racial group and mayintensify their collective self-construal—the degreeto which their sense of self is tied to social groupmembership. Denise Sekaquaptewa et al., SoloStatus and Self-Construal: Being DistinctiveInfluences Racial Self-Construal and PerformanceApprehension in African American Women, 13Cultural Diversity & Ethnic Minority Psychol. 321,321 (2007). Researchers suggest that this increased

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race representativeness and collective self-construalamong individuals experiencing solo status or racialisolation can derail performance. Id. at 322.Conversely, they predict that individuals fromhistorically marginalized groups may positivelyrespond to settings where “their race is perceived tobe adequately or fairly represented.” Id. at 326.The research indicates that diversity in theclassroom positively affects student performance bymitigating the race representativeness and collectiveself-construal that occurs when students are raciallyisolated.

Social science research also demonstrates thatstudents who enter college with high sensitivity tobeing rejected or dismissed because of their racereport greater anxiety after they complete theirsecond or third year than those who enter with lowrejection sensitivity. Students with high rejectionsensitivity show especially heightened anxiety aboutdiscussing an academic problem with faculty,depressed attendance to academic review sessions,and a significant academic achievement gapcompared to those with low rejection sensitivity.Rodolfo Mendoza-Denton et al., Sensitivity to Status-Based Rejection: Implications for African AmericanStudents’ College Experience, 83 J. Personality &Soc. Psychol. 896, 913-14 (2002). Opportunities fordiverse peer engagement may, however, reduce thealienation that Black and other underrepresentedstudents feel in educational environments. Id. at914.

Researchers re-analyzed earlier studiesexamining the interplay of race, stigmatization, jobsatisfaction, and institutional commitment forfaculty and students in higher education. They

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found that solo minority status is associated withhigh levels of stigmatization, which in turn predictslower levels of job satisfaction among faculty andlower levels of commitment among students. JohnF. Dovidio et al., Racial, Ethnic, and CulturalDifferences in Responding to Distinctiveness andDiscrimination on Campus: Stigma and CommonGroup Identity, 57 J. Soc. Issues 167, 169, 176 (2001)(citing Yolanda Flores Niemann & John F. Dovidio,Relationship of Solo Status, Academic Rank, andPerceived Distinctiveness to Job Satisfaction ofRacial/Ethnic Minorities, 83 J. Applied Psychol. 55(1998), and Kevin Snider & John F. Dovidio, Ind. St.U., A Survey of the Racial Climate at Indiana StateUniversity, 136-d (1996)). Research has long shownthat Black students experience higher rates ofdiscrimination and feel “significantly less a part ofthe university community and [are] substantiallyless committed to the university than [are] Whites.”Dovidio, Racial, Ethnic, and Cultural Differences,supra, at 177. After reexamining the data,researchers concluded that feelings of communitybelonging, rather than experiences of discrimination,“significantly [predict] institutional commitment.”Id. A diverse learning environment is thus essentialto defusing feelings of stigmatization and increasinginstitutional commitment.

4. Diversity Reduces the Effects ofStereotype Threat on AcademicPerformance

In the absence of a sufficiently diverseenvironment, racial isolation or solo status and otherforms of anxiety and awareness about one’s racialgroup’s performance capabilities can result in“stereotype threat.” Stereotype threat is a disruptive

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apprehension that individuals feel when they feartheir performance will confirm a salient negativestereotype about the intellectual ability andcompetence of their identity group. See Claude M.Steele & Joshua Aronson, Stereotype Threat and theIntellectual Test Performance of African Americans,69 J. Personality & Soc. Psychol. 797, 797 (1995).5

This fear of confirming an underperformancestereotype has been found to impair intellectualperformance and ability. Id. at 808.

Social science research has demonstrated thatthe academic performance of underrepresentedstudents, including Blacks and Latinos, can beexplained by stereotype threat. See StereotypeThreat: Theory, Process, and Application (MichaelInzlicht & Toni Schmader eds., 2012) (discussingresearch conducted over the last fifteen years). Thefindings on stereotype threat are now supported byover two decades of peer-reviewed research thatconfirms the real-world effects that stereotype threathas on academic performance.6

5 See also Toni Schmader et al., An Integrated ProcessModel of Stereotype Threat Effects on Performance, 115 Psychol.Rev. 336, 337 (2008) (finding that stereotype activation istriggered by “situations that pose a significant threat to self-integrity” when “one’s concept of self and expectation forsuccess conflict with primed social stereotypes suggesting poorperformance,” which then result in “physiologicalmanifestations of stress”).

6 The Petitioner’s amici err in their analysis of thesocial science data that exist on stereotype threat. See Brief forScholars of Economics and Statistics (“SES”) at 31-32; Brief forGail Heriot et al. at 29-34; Brief for Richard Sander and StuartTaylor, Jr. (“Sander”) at 25-26. Amici respectfully refer theCourt to the Respondent’s amici for a more thorough discussion

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a. Stereotype threat experiences arelinked to physiological stressreactions.

Experiencing stereotype threat can result inphysiological changes in the body and brain, thusundermining academic performance expectations,increasing feelings of self-doubt, and generallyreducing an individual’s cognitive resources preciselywhen they are needed most. See Toni Schmader,Chad E. Forbes, Shen Zhang & Wendy Berry

Mendes, A Metacognitive Perspective on theCognitive Deficits Experienced in Intellectually

Threatening Environments, 35 Personality & Soc.

Psychol. Bull. 584, 585-95 (2009); see also Schmader,Stereotype Threat Effects, supra note 5, at 342.Students who experience stereotype threat endureelevated levels of anxiety manifested in their cardiacfunctioning during outcome-oriented tasks, such astaking an exam. This strain results in thephysiological production of cortisol, which greatlyincreases when one “fears being negativelyevaluated during a task.” Schmader, Stereotype

Threat Effects, supra, at 343. In large quantities,cortisol impairs the process of memory stores, suchas “working memory”—the coordination of cognitionand behavior to achieve performance goals in thepresence of other competing information that candistract an individual’s attention when focusing on achallenging task. Id. at 340. Consequently,students may not have full access to their owninternal cognitive processes during the very

of stereotype threat and academic underperformance. See Brieffor Experimental Psychologists.

15

moments when they are being called upon toperform tasks that require high cognitive

functioning. Id. at 351.

b. The actual and perceiveddiversity of a universityenvironment is an importantpart of developing a sense ofbelonging—a predictor foracademic success—for studentswho experience stereotypethreat.

Physiological reactions to stereotype threatcan be mitigated when students have a strong senseof “social belonging,” or have positive relationshipswith and connections to other people. See GregoryM. Walton & Geoffrey L. Cohen, A Question ofBelonging: Race, Social Fit, and Achievement, 92 J.Personality & Soc. Psychol. 82, 82 (2007). Socialbelonging is fundamental to students’ well-being andintellectual achievement. Students who perceivethemselves as outside their social cohort performpoorly academically and can even suffer healthproblems. See Gregory M. Walton & Geoffrey L.Cohen, A Brief Social-Belonging InterventionImproves Academic and Health Outcomes of MinorityStudents, 331 Sci. Mag. 1447, 1447 (2011) (“Socialisolation . . . harm[s] not only subjective well-beingbut also intellectual achievement and immunefunction and health.”) (citations omitted). Blackstudents are particularly susceptible to feelinguncertain about their place in a university. Id. at1448.

A three-year Stanford University studypublished in 2011 demonstrates that the

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achievement gap between Black and Whiteundergraduate students can be narrowed with asocial belonging intervention. Id. at 1447. Afterreceiving an intervention at the end of their firstsemester at which older students assured youngerBlack students that concerns over “fitting in”diminish with time, the younger students improvedtheir GPAs significantly by senior year, narrowingthe achievement gap by 52%. Id. at 1448.7

Moreover, the academic performance and self-reported health and well-being of the Black studentsimproved over the three years. Id. at 1449. Theseresults suggest that stereotype threat can bemitigated in diverse environments where studentscan identify as individuals and not solely asmembers of their racial group.

Belonging and acceptance have implicationsfor not only school performance but also collegetrajectories and career choices. Findings across theboard show that a lack of belonging can turnstudents away from opportunities as surely as agatekeeper in admissions. Sapna Cheryan, VictoriaC. Plaut, Paul G. Davies & Claude M. Steele,Ambient Belonging: How Stereotypical Cues ImpactGender Participation in Computer Science, 97 J.Personality & Soc. Psychol. 1045, 1058 (2009)(“Across all studies, the degree to which people . . .felt they belonged in the environment stronglypredicted whether they chose to join that group.”).

7 Social science research demonstrates that diversityencourages intellectual engagement and improves academicachievement, contrary to the propositions made by Petitioner’samici. See Sander Br. 7-13; SES Br. 31-32; Brief for AbigailThernstrom et al. (“Thernstrom”) at 24-32.

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Diversity helps allay these concerns.8 Academic andwork environments that emphasize diversity tounderrepresented students increase a sense ofbelonging and foster motivation to participate inthose environments.

B. Social Science Studies Show ThatDiversity Leads to A More Vibrantand Productive Workforce andCivic Life

Diversity is crucial to preparing all students—including our next generation of leaders—to enterthe workforce and civic society and collaborate withmembers of other racial groups. The Court hasfound that racial diversity in higher educationimparts skills that are vital to professionals workingin heterogeneous environments. Regents of theUniversity of California v. Bakke, 438 U.S. 265, 313-14 (1978).

This finding is supported by extensive socialscience evidence that college is a critical place forstudents to learn how to work with those fromdifferent backgrounds. See Gurin, Diversity andHigher Education, supra note 8, at 334-36. Whitestudents often have little or no contact with studentsfrom other racial and ethnic groups before entering

8 Educational outcomes are also enhanced by extensiveand meaningful informal interracial interaction. PatriciaGurin et al., Diversity and Higher Education: Theory andImpact on Educational Outcomes, 72 Harv. Educ. Rev. 330, 359(2002). In a national longitudinal study of data collected fromover 11,000 students at 184 institutions, interracialinteractions consistently accounted for higher levels ofintellectual engagement and self-assessed academic skills forBlack, Asian American, Latino, and White students. Id.

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higher education. See Gary Orfield & Dean Whitla,“Diversity and Legal Education: StudentExperiences in Leading Law Schools,” in DiversityChallenged: Evidence on the Impact of AffirmativeAction 143, 156 (Gary Orfield ed., 2001) (finding thatfifty percent of White students at Harvard andUniversity of Michigan law schools had little or nointerracial contact prior to entering college or lawschool). Due to patterns of de facto segregation, seeinfra Section II.B, college provides the firstopportunity to teach and learn cross-culturalcompetence.

Recent social science research shows thatdiversity also leads to increased innovation, as groupmembers collaborate with one another more whenthey recognize that alternative perspectives exist,leading to novel insights and solutions. KatherineW. Phillips et al., Surface-Level Diversity andDecision-Making in Groups: When Does Deep-LevelSimilarity Help?, 9 Group Processes & IntergroupRel. 467, 475-77 (2006) (finding that diverse groupsspent more time discussing a certain task, whichimproved performance); see also Anthony LisingAntonio et al., Effects of Racial Diversity on ComplexThinking in College Students, 15 Psychol. Sci. 507,509 (2004) (finding a strong association between theracial diversity of a student’s close friends andclassmates and the integrative complexity of thatstudent’s group discussions); Scott E. Page, TheDifference: How the Power of Diversity Creates BetterGroups, Firms, Schools, and Societies 23, 47-50(2007) (explaining that introducing diverseperspectives creates new ways of organizingknowledge to find efficient solutions and mitigatesinefficiencies attributable to groupthink). The

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inclusion of diverse viewpoints in decision-makingthus produces creativity and efficiency.

The mere presence of individuals from otherracial or ethnic groups, even when their views arenot adopted, also improves the performance of Whitegroup members. Samuel R. Sommers, On RacialDiversity and Group Decision Making: IdentifyingMultiple Effects of Racial Composition on JuryDeliberations, 90 J. Personality & Soc. Psychol. 597,606 (2006). The benefits of diversity extend wellbeyond having diverse viewpoints adopted orrepresented in decision-making; rather, the datashow that diverse environments and theaccompanying expectation of interacting with anoutgroup member “can lead White individuals toexhibit more thorough information processing.”Samuel R. Sommers et al., Cognitive Effects ofRacial Diversity: White Individuals’ InformationProcessing in Heterogeneous Groups, 44 J.Experimental Soc. Psychol. 1129, 1132 (2008) (“Thatsimple awareness of group composition can producesuch effects suggests that the general influence ofracial diversity cannot be attributed in whole to thenovel informational contributions” of individualsfrom other racial groups). Indeed, when individualsfrom other racial groups are part of a group, thechanges in the decision-making process of the entiregroup are largely attributed to the Whiteparticipants, and lead to divergent thinking, morecreativity, and more accurate judgments. SeeSommers, On Racial Diversity, supra, at 606(“[T]hese differences did not simply result fromBlack participants adding unique perspectives to thediscussions. Rather, White participants [are] largelyresponsible for the influence of racial composition, as

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they raised more case facts, made fewer factualerrors, and were more amenable to discussion ofrace-related issues when they were members of adiverse group.”). These recent social science findingschallenge prior assumptions that the benefits ofracial diversity were singularly attributable to theinformational contributions of individuals fromunderrepresented racial or ethnic groups. Currentresearch provides compelling evidence that “evenabsent social interaction or exchange of information,mere awareness of a diverse group composition [is]sufficient to impact the cognitive tendencies” ofWhite individuals, allowing for a more robust andproductive decision-making environment. Sommers,Cognitive Effects of Racial Diversity, supra, at 1134.

Civic and social life also improve withincreased interaction with outgroup members.Research has long shown that students with diversecollege experiences are more willing to influence thepolitical structure, help others in need, engage incommunity service, resolve conflict, and overcomesocial division. See Patricia Gurin et al., TheBenefits of Diversity in Education for DemocraticCitizenship, 60 J. Soc. Issues 17, 31-32 (2004); seealso Gurin, Diversity and Higher Education, supra,at 347. Social science research since Gruttersupports these findings and confirms the importanceof diversity in civic engagement. See, e.g., SylviaHurtado, The Next Generation of Diversity andIntergroup Relations Research, 61 J. Soc. Issues 595,601-05 (2005) (“[S]tudents who reported frequentcontact with diverse peers displayed greater . . . self-confidence in cultural awareness, development of apluralistic orientation, believe that conflict enhancesdemocracy, and tend to vote in federal and state

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elections.”). Indeed, students who experience diversecampus environments find such experiencesessential to democracy. See id.; Gurin, The Benefitsof Diversity, supra, at 28-30 (finding that campusdiversity encourages students to increase theirengagement on campus and instills democraticvalues).9

* * *The foregoing facts and empirical evidence

illustrate the many social, economic, intellectual,physiological, cognitive, and psychological benefits ofdiversity. Social science research demonstrates thatdiversity has broad positive effects on civic andeconomic life, improves academic performance for allstudents, reduces both implicit and explicit prejudiceand bias, and facilitates better physiologicalregulation of stress and threat responses ininterracial interactions. This research hasimportant implications for the Court’sunderstanding of why diversity matters.

In Grutter, the Court underscored theuniversity’s need to determine pedagogical goals foruniversity education and select a student populationthat would best serve those goals.10 539 U.S. at 329.

9 Contrary to the findings put forth by Petitioner’samici, see Sander Br. 23-24 and Thernstrom Br. 9-18, the mostrecent social science research overwhelmingly shows thatincreased contact and cross-racial understanding produce apositive effect, thus reinforcing the empirical data underlyingthe Court’s ruling in Grutter. See supra Sections I.A-B.

10 In Parents Involved, the Court recognized that whenapplying strict scrutiny, “context matters” and “universitiesoccupy a special niche in our constitutional tradition.” ParentsInvolved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,

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Recent social science findings show that there is aneven wider array of benefits to diversity in highereducation and bolster the Court’s conclusion thatpromoting such diversity is a compelling interest.Id. at 329. Diversity is an essential tool that enablesschools to fulfill their purpose of educating allstudents, ensuring that students perform their bestacademically, and preparing students to be futureleaders.

II. UT’S HOLISTIC ADMISSIONS POLICY ISNARROWLY TAILORED ANDNECESSARY TO ACHIEVE ITSCOMPELLING DIVERSITY INTEREST

The use of race in higher educationadmissions is constitutional where the means chosenare “narrowly tailored” and “necessary to further acompelling governmental interest.” Grutter, 539U.S. at 326-27 (explaining that “strict” constitutionalscrutiny ensures that the government is pursuing asufficiently important goal). UT’s carefully renderedadmissions policy is narrowly framed, preservingindividualized review of an applicant’s entire file inan admissions process otherwise based on a singlemetric: high school class rank. UT’s policy is alsonecessary. The Plan, while increasing enrollment ofunderrepresented groups, does not ensure thatstudents who do not automatically qualify have ameaningful opportunity to be considered for

724-25 (2007) (citations omitted). “[T]he expansive freedoms ofspeech and thought associated with the universityenvironment” underlie the deference given to universities inmaking “complex educational judgments,” Grutter, 539 U.S. at328, that are “unique to institutions of higher education.”Parents Involved, 551 U.S. at 724 (citations omitted).

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admission to the University of Texas. TheUniversity cannot rely on the Plan alone because itdepends on existing high school segregation in Texasto achieve limited diversity and disproportionatelyexcludes Black and Latino students due toresidential hypersegregation.

Nor can UT rely on an admissions policy thatfails to consider race to achieve the benefits ofdiversity. Black and Latino students’ relativedisadvantage in university admissions results fromdozens of demographic, social, and economic factorsthat vary depending on localized conditions.Universities simply cannot effectively analyze thecomplex factors that contribute to racialdisadvantage as an alternative to considering race.However, the convergence of these factors with raceallows UT to consider race as one of manyindividualized factors as a means to provide ameaningful opportunity for all students to attendUT. A truly holistic race-conscious admissionspolicy, employed in conjunction with the Plan, isnecessary and indispensable to fulfilling UT’s criticalgoals of ensuring that its student body is broadlydiverse and the individualized characteristics of eachstudent are considered for admission. For thesereasons, UT’s holistic admissions policy is narrowlytailored to achieve its compelling interest indiversity.

A. UT’s Policy Is Narrowly TailoredBecause It PreservesIndividualized Review

UT’s policy is narrowly tailored to account forthe limitations of the Plan and the pedagogical needsof the University because it considers race as one

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part of a holistic, individualized admissions process.An admissions policy is narrowly tailored if eachapplicant’s file is evaluated in a “highlyindividualized” way, “giving serious consideration toall the ways an applicant might contribute to a

diverse educational environment.” Grutter, 539 U.S.

at 337; see also Fisher v. Univ. of Texas at Austin,631 F.3d 213, 220-21 (5th Cir. 2011) (explaining

that, under Grutter, a “university admissionsprogram is narrowly tailored only if it allows forindividualized consideration of applicants of allraces” so that an applicant is “valued for all herunique attributes”). A holistic admissions policy“adequately ensures that all factors that maycontribute to student body diversity aremeaningfully considered alongside race in

admissions decisions.” Grutter, 539 U.S. at 337.

UT’s admissions process is both individualizedand constitutional. The University consideredseriously and in good faith “workable race-neutralalternatives that [would] achieve the diversity theuniversity seeks.” Grutter, 539 U.S. at 339-40(finding that the law school “sufficiently considered”these alternatives) (citation omitted); see alsoProposal to Consider Race and Ethnicity inAdmissions, U. Tex. at Austin (June 25, 2004), inSupplemental Joint Appendix, filed May 21, 2012(“SJA”) at 1a-39a. However, UT determined that apolicy that ignored race was not a “workable race-neutral alternative.” SJA 1a-39a.

As in Grutter, UT’s policy properly gives“substantial weight to diversity factors besides race.”Grutter, 539 U.S. at 338. Since 1997, UT has

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employed two metrics to determine freshmanadmission for non-guaranteed11 applicants: an“Academic Index” and a “Personal AchievementIndex” (“PAI”). Fisher, 631 F.3d at 222-23. In thefall of 1999, the year before the Texas Legislatureenacted the Plan, UT began an extensive evaluationof undergraduate impressions and empirical dataregarding campus diversity over fifteen semestersthrough 2003. See SJA 1a-39a. After this carefulanalysis, UT concluded in 2004 that considering racein admissions was crucial to achieving diversity andbegan including it as one of many “specialcircumstance[s]” within the personal achievementfactors. Fisher, 631 F.3d at 230.

Race constitutes only one component of anapplicant’s personal achievement score, which itselfis only one third of the overall PAI, and is thus not apredominant or “defining feature” in UT’s decision-making. See Grutter, 539 U.S. at 393 (Kennedy, J.,dissenting) (reasoning that an admissions policy thatconsiders race is constitutional where theeducational institution ensures that “each applicantreceives individual consideration and that racedoes not become a predominant factor in the

11 UT’s admissions policy affects only those in-stateapplicants whose grade point averages (“GPA”), as reflected intheir class rank, place them outside the top ten percent of theirhigh school class. Fisher, 631 F.3d at 227; Plaintiffs’ Statementof Facts in Support of Motion for Partial Summary Judgment,in Joint Appendix, filed May 21, 2012 (“JA”) at 140a. Underthe original version of the Plan, applicants within the top tenpercent of their classes were guaranteed admission to UT,which accounted for over eighty percent of UT’s enrolled class.Fisher, 631 F.3d at 227. There is a current cap of 75% thatexpires in 2015. JA 140a.

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admissions decision-making.”). UT’s admissionspolicy appropriately considers each applicant’s raceas “one modest factor among many others” that, inconcert with the matrix of considerations that UTexamines as part of its holistic review, constitute aparticularized and truly individualized assessment.Grutter, 539 U.S. at 392-93 (Kennedy, J., dissenting)(“To be constitutional, a university’s compellinginterest in a diverse student body must be achievedby a system where individual assessment issafeguarded through the entire process.”).

B. UT’s Policy Is Necessary to AchieveA Compelling Interest

Petitioner incorrectly argues that “the successof UT’s prior race-neutral admissions system inincreasing minority enrollment, primarily throughthe [Plan],” renders the race-conscious admissionsprocedure unnecessary and therefore not narrowlytailored. Pet’r’s Br. 38. To the contrary, UT’s race-conscious admissions policy is carefully tailored tocompensate for the limitations of the Plan inachieving the University’s compelling interest increating a diverse student body. UT’s inclusion ofrace as one “special circumstance” within its holisticand individualized admissions process is necessarybecause Blacks and Latinos disproportionatelyreside in racially isolated, lower educationalopportunity environments, inhibiting their ability tobenefit from the Plan alone or with an admissionspolicy that excludes race. Without a holisticadmissions policy, falling outside of the top tenpercent would effectively deny many Black andLatino students a realistic chance to be consideredfor admission to UT.

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Research demonstrates that a broad range ofcomplex variables such as socioeconomic status,parental education, school environment, residentialstability, and geographic diversity disproportionatelyaffect the educational opportunities available toBlacks and Latinos. All of these factors intersectwith race. Given the number and complexity ofvariables that contribute to racial disadvantage, anadmissions policy limited to race-neutral factorscannot capture their cumulative effect oneducational opportunity. Considering race within abroader, holistic admissions policy therefore remainsthe only way to account for the uneven distributionof educational opportunities within and across schooldistricts and generate a broadly diverse studentbody at UT. UT simply cannot rely on the Planalone or in conjunction with a race-neutraladmissions policy to accomplish this goal.

1. The Convergence of Multiple FactorsInextricably Linked to Race InhibitsEducational Opportunity

In Brown, the Court concluded that “it isdoubtful that any child may reasonably be expectedto succeed in life if he is denied the opportunity to aneducation. Such an opportunity, where the state hasundertaken to provide it, is a right which must bemade available to all on equal terms.” Brown v.Board of Education, 347 U.S. 483, 493 (1954).Education is important for economic opportunity,civic participation, and democratic engagement. Seesupra at Section I.B. The Court’s decisions in Brownand Grutter both recognize the role education servesfor both individuals and society as a whole;accordingly, education must be provided underconditions of equality. See Brown, 347 U.S. at 493;

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Grutter, 539 U.S. at 332 (“[U]niversities . . .represent the training ground for a large number ofour Nation’s leaders.”); see also Parents Involved, 551U.S. at 787 (Kennedy, J., concurring) (“The enduringhope is that race should not matter; the reality isthat too often it does.”).

Standing against this aspiration is the realitythat educational opportunity remains uneven acrossour nation and the state of Texas. Varying localconditions, including teacher quality, teacherexperience, per-pupil expenditures, local tax basecapacity, school poverty rates, extracurricularactivities, textbooks and classroom technology,neighborhood conditions, average parentaleducational levels, and amenities such as proximityor access to libraries and other educational supportscan vastly inhibit or improve student performance.See, e.g., Linda Darling-Hammond & Peter Youngs,Defining “Highly Qualified Teachers”: What Does“Scientifically-Based Research” Actually Tell Us?, 31Educ. Researcher 13 (2002); Linda Darling-Hammond, Teacher Quality and StudentAchievement: A Review of State Policy Evidence, 8Educ. Pol’y Analysis Archives 1 (2000); LindaDarling-Hammond et al., Does Teacher CertificationMatter? Evaluating the Evidence, 23 Educ.Evaluation & Pol’y Analysis 57 (2001); Eric A.Hanushek, The Impact of Differential Expenditureson School Performance, 18 Educ. Researcher 45(1989); Jonathan Kozol, Savage Inequalities:Children in America’s Schools, Crown Publishers,Inc. (1991); Jonathan Kozol, Still Separate, StillUnequal: America’s Educational Apartheid, 311Harper’s Mag. 41 (2005). Research demonstratesthat these varying factors each correlate with

29

educational outcomes, and when clustered togetherhave a tremendous influence on educationalattainment and college matriculation. See LindaDarling-Hammond, The Color Line in AmericanEducation: Race, Resources, and StudentAchievement, 1 Du Bois Rev. 213 (2004).

Uneven educational opportunity is largely aresult of the interaction of race with economicsegregation and isolation. Residing inneighborhoods of concentrated poverty and racialsegregation has a direct effect on education: it isequivalent to missing an entire year of school. SeeRobert J. Sampson et al., Durable Effects ofConcentrated Disadvantage on Verbal Ability AmongAfrican-American Children, 105 Proc. Nat’l Acad.Sci. 845, 845-52 (2008). The interaction betweenracial segregation and income segregation isprofound,12 and results in the exclusion ofdisproportionate numbers of Black and Latinostudents from educational opportunities. One out ofevery six Black or Latino students attends ahypersegregated school—in which the studentpopulation is 99-100% racially or ethnicallyhomogenous. Erica Frankenberg et al., AMultiracial Society with Segregated Schools: Are WeLosing the Dream?, Harv. U. C.R. Project, 28 (2003).

12 Between 1970 and 2009, income segregation—“theextent to which high- and low-income families live in separateneighborhoods”—grew dramatically in the vast majority ofmetropolitan regions. Sean F. Reardon & Kendra Bischoff,Growth in the Residential Segregation of Families by Income,1970-2009, US2010 Project at 1, 8 (2011) (finding that incomesegregation increased substantially more among Black andLatino families than White families from 1970 to 2007,including “very sharp[ ]” growth between 2000 and 2007).

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Roughly two of every five Black or Latino studentsin the United States attend “intensely segregatedschools,” in which 90-100% of the student body isracially homogenous, up from one-third in 1988. Id.at 31. More than three quarters of these schools arehigh poverty schools. Gary Orfield & Chungmei Lee,Racial Transformation and the Changing Nature ofSegregation Harv. U. C.R. Project, 31 (2006). Eventhough there are more poor Whites in absolutenumbers, three of four persons living in concentratedpoverty—neighborhoods where over 40% of residentslive below the Federal Poverty Line—are Black orLatino. Paul A. Jargowsky, Stunning Progress,Hidden Problems: The Dramatic Decline ofConcentrated Poverty in the 1990s, Brookings Inst.,61 (2003).

The net effect of coming from a family livingin generational poverty disproportionately impactsBlack and Latino students in significant ways. Forexample, high levels of parental education correlatewith higher test scores, higher grade point averages,and greater educational aspirations for theirchildren. J. R. Campbell et al., NAEP 1999 Trendsin Academic Progress: Three Decades of StudentPerformance, 2 Nat’l Center for Educ. Stat. 469(2000). Similarly, wealth is highly correlated withstudent performance and educational attainment.See, e.g., Amy J. Orr, Black-White Differences inAchievement: The Importance of Wealth, 76 Am. Soc.Ass’n 281 (2003); College Board, 2009 College-BoundSeniors: Total Group Profile Report, 1, 4 (2009)(illustrating that in 2009, the highest average scoreon the SAT was posted by students who reportedtheir family income as greater than $200,000annually); Anthony P. Carnevale & Stephen J. Rose,

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“Socioeconomic Status, Race/Ethnicity, and SelectiveCollege Admissions,” in America’s UntappedResource: Low Income Students in Higher Education106, 141 (Richard D. Kahlenberg ed., 2004) (findingthat 74% of students at the 146 most selective four-year colleges and universities in the U.S. came fromthe top socioeconomic status quarter of Americanfamilies, versus 3% from the bottom quarter).Racially isolated Blacks and Latinos aredisproportionately overrepresented across these andmost other determinative factors that inhibit accessto educational opportunity. See Marta Tienda &Sunny Xinchun Niu¸ Capitalizing on Segregation,Pretending Neutrality: College Admissions and theTexas Top 10% Law, 8 Am. L. & Econ. Rev. 312, 328(2006) (“By definition, students who attend minority-dominated schools are mostly [B]lack and[Latino], . . . are usually poorer; [and] on average,their parents are less likely to have college degrees .. . .”); see also Elizabeth Anderson, The Imperative ofIntegration 2 (2010) (“[Racial s]egregation . . .isolates disadvantaged groups from access to publicand private resources, from sources of human andcultural capital, and from the social networks thatgovern access to jobs, business connections, andpolitical influence. It depresses their ability toaccumulate wealth and gain access to credit.”).

Given the complex and compoundeddisadvantages these students face, race is anessential factor in assessing an applicant’s pastacademic and personal achievement and futurepotential. A holistic, race-conscious admissionspolicy is consistent with the Court’s goal of ensuringeducational opportunity, articulated in Brown, and

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its guidance in Grutter explaining the need forindividualized assessments to achieve this goal.

2. Residential SegregationNecessitates A Race-ConsciousAdmissions Policy to Achieve UT’sDiversity Interest

The economic and social systems that lead toresidential segregation and concentrated povertycontribute to the implicit biases, prejudices, racialisolation, and physiological stress responsesexamined in Section I, supra, and reinforce themarginalization of Blacks and Latinos. The Planrelies upon patterns of segregation to ensure someracial diversity at UT, but the Plan alone cannoteffectively address the hypersegregation thatinhibits the opportunity for racially andeconomically marginalized youth to compete foradmission, thereby requiring additional steps toensure that these students are not effectivelyexcluded from consideration for admission. SeeAngel Harris & Marta Tienda, Minority HigherEducation Pipeline: Consequences of Changes inCollege Admissions Policy in Texas, 627 Annals Am.Acad. Pol. & Soc. Sci. 60 (2010).

Black and Latino students aredisproportionately affected by hypersegregation.Seventy-five percent of Black families nationwidereside in only 16% of census block groups. CraigGurian, Mapping and Analysis of New DataDocuments Still-Segregated America, RemappingDebate (Jan. 18, 2011), available at http:// www.remappingdebate.org/map-data-tool/mapping-and-analysis-new-data-documents-still-segregated-america-0; see also U.S. Census Bureau, American

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Community Survey, 2009 Data Release (Dec. 8,2011), available at http://www.census.gov/acs/ www/data_documentation/2009_release/. Demographicand residential patterns in Texas also result in thedisproportionate concentration of Latino students inhigh schools that are mostly or predominantly Blackand Latino. See Tienda, supra, at 341 (finding thatthis disproportionate concentration “reflects twocircumstances[:] (1) that [Latino] high school seniorsoutnumber [B]lack seniors by a factor of three to oneand (2) that within the state, [Latino] seniors aremore regionally concentrated than [B]lacks, largelyin South and West Texas.”). Consequently,residential hypersegregation and correspondingracial concentration channel Blacks and Latinos intohypersegregated educational environments. See id.(explaining that “Texas public high schools arehighly segregated”).

As discussed in Section II.B.1, supra, of Blackand Latino students nationwide, one in six attends ahypersegregated school and roughly forty percentattend intensely segregated schools. Frankenberg, AMultiracial Society, supra, at 28, 31. More thanthree-quarters of hypersegregated and intenselysegregated schools are high poverty. Orfield, RacialTransformation, supra, at 31; see also Tienda, supra,at 341 (stating that “[s]patial segregation is apowerful force perpetuating the concentration ofeconomic disadvantage” and “school racial mix andsocial class composition often are tightly coupled”).“The pernicious underside of school segregation isthat it accentuates class differences, which easilytrump any admission advantages afforded to Blacksand [Latinos] clustered in predominantly minorityschools.” Tienda, supra, at 341. Given the operative

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patterns of hypersegregation, the vast majority ofBlacks and Latinos—and a disproportionately highpercentage relative to other racial groups—may onlybe considered for admission by additional measuresoutside of the Plan. Id. at 342 (“[B]y itself, [thePlan] appears to be insufficient to broadeneducational opportunity for minorities even in theface of pervasive segregation.”).

In light of this stark reality and the Plan’slimitations, which affect its present and long-termviability, UT took affirmative race-neutral steps toincrease diversity. The University created programsthat targeted low-income students, actively recruitedstudents from lower opportunity environments,instituted summer training programs, andencouraged private individuals to recruitunderrepresented students to apply for admission.See Fisher, 631 F.3d at 223-25; JA 146a-150a.However, these race-neutral policies and programs,executed alongside the Plan, predictably failed toeffectively account for the many variables that causeBlacks’ and Latinos’ lower educational opportunityand resulted in a continuing lack of meaningfuldiversity at UT.

The University’s race-neutral efforts weresimply insufficient for it to fulfill its mission ofachieving a diverse student body and providing anopportunity for public college education to Texashigh school students. The Court has recognized thatgovernment actors and other policy makers need notpassively permit systems that exclude. See, e.g., Cityof Richmond v. J.A. Croson Co., 488 U.S. 469, 492(1989) (“Thus, if the city could show that it hadessentially become a ‘passive participant’ in a systemof racial exclusion practiced by elements of the local

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construction industry, we think it clear that the citycould take affirmative steps to dismantle such asystem.”); Parents Involved, 551 U.S. at 788(Kennedy, J., concurring) (“To the extent theplurality opinion suggests the Constitutionmandates that state and local school authoritiesmust accept the status quo of racial isolation inschools, it is, in my view, profoundly mistaken.”). Inconnection with its post-Grutter decision toreintroduce race and ethnicity to admissions in 2004,the University found that the percentage of classesof five or more students containing zero or one Blackor Latino student actually increased between 1999and 2003. See SJA 1a-39a. As a result of theUniversity’s reintroduction of race as oneconsideration within its admissions policy,enrollment of Black and Latino students increased.Fisher, 631 F.3d at 226. UT therefore appropriatelyconsidered race as one of many individualizedcharacteristics to account for the myriad complex,ingrained, and variable factors that inhibiteducational opportunity.13

* * *

Social science research demonstrates thatdiversity in higher education is critical to reducingnegative physiological and psychological responses,improving academic performance, and better

13 Petitioner and their amici ask the Court to adopt aninapplicable “strong basis in evidence” standard to establish thenecessity of race in university admissions to satisfy strictscrutiny review. Even if the Court were to adopt this standard,UT has amply satisfied it, having considered and amassed farmore than the requisite quantum of evidence to further itscompelling interest in a diverse student body.

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preparing our future leaders. An admissions policythat fails to consider race cannot ensure thisdiversity given the numerous and variable factorsthat disproportionately disadvantage Black andLatino students in university admissions.Considering race within a broader, holisticadmissions policy, therefore, remains the onlyeffective and efficient way for the University topromote equal educational opportunity for allstudents and achieve UT’s compelling interest in themany benefits of diversity in higher education.

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CONCLUSION

Amici curiae urge the Court to affirm thejudgment of the court of appeals.

Dated: August 13, 2012 Respectfully submitted,

EVA PATERSON

Counsel of RecordALLISON S. ELGART

FABIÁN RENTERÍA

EQUAL JUSTICE SOCIETY

260 California Street,Suite 700

San Francisco, CA 94111(415) 288-8700epaterson@

equaljusticesociety.org

DAVID J. BERGER

ELIZABETH M. SAUNDERS

SAVITH S. IYENGAR

RO KHANNA

WILSON SONSINI

GOODRICH & ROSATI, PCOne Market Street,

Suite 3300San Francisco, CA 94105(415) [email protected]

JOHN A. POWELL

STEPHEN MENENDIAN

HAAS DIVERSITY RESEARCH

CENTER, UNIVERSITY OF

CALIFORNIA, BERKELEY

104 California Hall, #1500Berkeley, CA 94720(510) [email protected]

Counsel for Amici CuriaeSocial and Organizational Psychologists

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APPENDIX: LIST OF AMICI CURIAE14

Dr. Evan Apfelbaum is a social psychologist andAssistant Professor of Organization Studies at MITSloan School of Management. Dr. Apfelbaum hasextensively researched the implications of race-blindversus race-conscious practices in contexts rangingfrom cross-race interactions and organizationalteams to the educational system and the law.

Dr. Max H. Bazerman is the Jesse Isidor StrausProfessor at the Harvard Business School. Inaddition, Dr. Bazerman is formally affiliated withthe Harvard Kennedy School of Government, thePsychology Department, and the Program onNegotiation. He is the author, co-author, or co-editorof nineteen books (including Blind Spots [with AnnTenbrunsel], Princeton University Press, 2011) andover 200 research articles and chapters. His workfocuses on how humans engage in unethical actionswithout their own awareness, with implicitdiscrimination as one form of this bounded ethicality.

Dr. Wendy Berry Mendes is the Sarlo/EkmanProfessor of Human Emotion in the Department ofPsychiatry at University of California, SanFrancisco. Her expertise is in the area ofneurobiological responses stemming from intergroupanxiety and stereotype threat.

Dr. Sapna Cheryan is an Assistant Professor ofPsychology at the University of Washington. Herresearch interests include identity, stereotypes, andprejudice. Dr. Cheryan has received numerous

14 Affiliations are listed for identifications purposesonly. Amici submit this brief in their individual capacitiesalone, and not on behalf of any institution or organization.

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awards for her research, including the NationalScience Foundation CAREER Award and theAmerican Psychological Association DissertationResearch Award.

Dr. Rodolfo Mendoza-Denton is an AssociateProfessor of Psychology at the University ofCalifornia, Berkeley. His research focuses onintergroup relations and the negative impact ofstigmatization and lack of inclusion on minoritystudents’ educational outcomes.

Dr. Elizabeth Page-Gould is an AssistantProfessor of Psychology at the University of Toronto.Dr. Page-Gould’s research has primarily taken anexperimental and longitudinal approach tounderstand the role that cross-ethnic friendshipplays in psychological and physiological thriving indiverse contexts.

Dr. Katherine W. Phillips is the Paul CalelloProfessor of Leadership and Ethics in theManagement Division at Columbia Business Schoolat Columbia University. Dr. Phillips has publishednumerous papers on the effects of diversity on workteam process and performance, including empiricalwork on how diversity increases cognitive processingof information and motivation.

Dr. Victoria C. Plaut is a Professor of Law andSocial Science and Affiliated Psychology Faculty atthe University of California, Berkeley. Dr. Plaut hasconducted extensive empirical research on diversityand intergroup relations, including research on theexperiences of inclusion and psychologicalengagement of both majority and underrepresentedstudents and employees.

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Dr. Denise Sekaquaptewa is a Professor ofPsychology, and Faculty Associate at the ResearchCenter for Group Dynamics, at the University ofMichigan, Ann Arbor. Dr. Sekaquaptewa’s researchfocuses on stereotyping, stereotype threat, andeffects of solo status on test performance andacademic identification.

Dr. Stacey Sinclair is an Associate Professor ofPsychology and African American Studies atPrinceton University. Dr. Sinclair has conductedextensive research on how interpersonal interactionsshape unconscious prejudice and the benefits ofinter-ethnic contact in academic settings.

Dr. Samuel R. Sommers is an Associate Professorof Psychology at Tufts University. An experimentalsocial psychologist, Dr. Sommers’ research examinesissues related to stereotyping, prejudice, and groupdiversity. His scholarly work focuses on two oftenoverlapping topics: race and social perception,judgment, and interaction; and the intersection ofpsychology and law.

Dr. Negin R. Toosi is a Postdoctoral ResearchScholar and Adjunct Assistant Professor atColumbia Business School, Columbia University.Dr. Toosi conducts experimental research ondiversity in group settings, examining theimportance of context and various social identities.

Dr. Linda R. Tropp is a Professor of Psychology atthe University of Massachusetts Amherst. Dr.Tropp has conducted extensive research on theeffects of intergroup contact, including meta-analytic, experimental, and longitudinal studies onthe expectations, experiences, and outcomes ofcontact among diverse racial and ethnic groups.