Fisher v. University of Texas at Austin

631 F.3d 213, 2011 U.S. App. LEXIS 897, 2011 WL 135813

Opinions

PATRICK E. HIGGINBOTHAM, Circuit Judge:

We consider a challenge to the use of race in undergraduate admissions at the University of Texas at Austin. While the University has confined its explicit use of race to the elements of a program approved by the Supreme Court in Grutter v. Bollinger,1 UT’s program acts upon a university applicant pool shaped by a legislatively-mandated parallel diversity initiative that guarantees admission to Texas students in the top ten percent of their high school class. The ever-increasing number of minorities gaining admission under this Top Ten Percent Law casts a shadow on the horizon to the otherwise-plain legality of the Groiter-like admissions program, the Law’s own legal footing aside. While the Law’s ultimate fate is not the fare of this suit, the challenge to the Grutter plan here rests upon the intimate ties and ultimate confluence of the two initiatives. Today we affirm the constitutionality of the University’s program as it existed when Appellants applied and were denied admission.

Abigail Fisher and Rachel Michalewiez, both Texas residents, were denied undergraduate admission to the University of Texas at Austin for the class entering in Fall 2008. They filed this suit alleging that UT’s admissions policies discriminated against them on the basis of race in violation of their right to equal protection under the Fourteenth Amendment and federal civil rights statutes.² They sought damages as well as injunctive and declaratory relief. Proceeding with separate phases of liability and remedy, the district court, in a thoughtful opinion, found no liability and granted summary judgment to the University.

The procedural posture of this case defines the scope of our review. There are no class claims and both students deny intention to reapply to UT.³ It follows that Fisher and Michalewiez lack standing to seek injunctive or forward-looking declaratory relief.⁴ This principle is rote. To obtain forward-looking equitable remedies, a plaintiff must show she faces imminent threat of future injury.⁵ Without that threat, these two applicants only have standing to challenge their rejection and to seek money damages for their injury.⁶

Our focus will be upon the process employed by UT to admit freshmen when Fisher and Michalewiez applied for the class entering Fall 2008, looking to earlier and later years only as they illuminate the rejection of these two applicants.⁷ Our task is burdened by the reality that we are examining a dynamic program administered by a large university subject to government oversight. Indeed, the first of UT’s periodic five-year reviews was to begin in the fall of 2009, a review that must engage an array of variables, including an ever-present question of whether to adjust the percentage of students admitted under the two diversity initiatives.

I. GRUTTER V. BOLLINGER

We begin with Grutter v. Bollinger because UT’s race-conscious admissions procedures were modeled after the program it approved. In rejecting constitutional challenges to the University of Michigan Law School’s admissions program, Grutter held that the Equal Protection Clause did not prohibit a university’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”⁸ Mapping on Grutter, UT evaluates each application using a holistic, multi-factor approach, in which race is but one of many considerations. In granting summary judgment to UT, the district court found that “it would be difficult for UT to construct an admissions policy that more closely resembles the policy approved by the Supreme Court in Grutter,” and “as long as Grutter remains good law, UT’s current admissions program remains constitutional.”⁹ Laying aside the Top Ten Percent Law, that observation is indisputably sound.¹⁰

A

Grutter embraced the diversity interest articulated twenty-five years earlier by Justice Powell, who wrote separately in Regents of the University of California v. Bakke.11 This vision of diversity encompassed a broad array of qualifications and characteristics where race was a single but important element.¹² The Michigan Law School designed its admissions program to achieve this broad diversity, selecting students with varied backgrounds and experiences — including varied racial backgrounds — who would respect and learn from one another.¹³ The Court explained:

[The Law School’s] policy makes clear there are many possible bases for diversity admissions, and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields.¹⁴

The Law School’s policy also reaffirmed its “longstanding commitment” to “one particular type of diversity, that is, racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like Afriean-Americaris, Hispanics and Native Americans, who without this commitment might not be represented in [the] student body in meaningful numbers.”¹⁵

In an effort to ensure representation of minorities, the Law School sought to enroll a “critical mass” of minority students, which would result in increased minority engagement in the classroom and enhanced minority contributions to the character of the School. The Grutter Court endorsed this goal, holding that diversity, including seeking a critical mass of minority students, is “a compelling state interest that can justify the use of race in university admissions.”¹⁶

That the concept of critical mass bears a simple but deceptive label is evidenced by the division of the Justices over its meaning. In his dissent, Chief Justice Rehnquist saw critical mass as only the minimum level necessary “[t]o ensure that the[ ] minority students do not feel isolated or like spokespersons for their race; to provide adequate opportunities for the type of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and reexamine stereotypes.”¹⁷ On this view, critical mass is defined only as a proportion of the student body, and the percentage that suffices for one minority group should also suffice for another group.

In contrast, Justice O’Connor, writing for the Court, explained that critical mass must be “defined by reference to the educational benefits that diversity is designed to produce.”¹⁸ Her opinion recognizes that universities do more than simply impart knowledge to their students. Synthesizing, we find at least three distinct educational objectives served by the diversity she envisioned:

1. Increased Perspectives. Justice O’Connor observed that including diverse perspectives improves the quality of the educational process because “classroom discussion is livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds.”¹⁹ In this respect, Grutter echoes Justice Powell’s recognition in Bakke that it is “essential to the quality of higher education” that a university be able to pursue “[t]he atmosphere of speculation, excitement and creation” that is “promoted by a diverse student body.”²⁰ Indeed, diversity often brings not just excitement, but valuable knowledge as well. “[A] student with a particular background — whether it be ethnic, geographic, culturally advantaged or disadvantaged — may bring to a [university] experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.”²¹

2. Professionalism. The majority pointed to “numerous studies” showing that “student body diversity ... better prepares [students] as professionals.”²² The Court has “repeatedly acknowledged the overriding importance of preparing students for work and citizenship,”²³ and today’s students must be prepared to work within “an increasingly diverse workforce.”²⁴ Indeed, “major American businesses have made clear that the skills needed in today’s increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”²⁵ A diverse student body serves this end by “promoting] cross-racial understanding, help[ing] to break down racial stereotypes, and enabl[ing] students to better understand persons of different races.”²⁶

3. Civic Engagement. The Court recognized that “[e]ffective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.”²⁷ A diverse student body is crucial for fostering this ideal of civic engagement, because “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”²⁸ Maintaining a visibly open path to leadership demands that “[ajccess to [higher] education ... be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”²⁹ Each member of society “must have confidence in the openness and integrity of the educational institutions that provide this training.”³⁰ Further, efforts to educate and to encourage future leaders from previously underrepresented backgrounds will serve not only to inspire, but to actively engage with many woefully underserved communities, helping to draw them back into our national fabric.

B

Recognizing the pursuit of diversity, including racial diversity, to be a compelling interest in higher education, Grutter endorsed the right of public universities to increase enrollment of underrepresented minorities. Grutter also cautioned that, while it accepted diversity as a compelling interest, any sorting of persons on the basis of race must be by measures narrowly tailored to the interest at stake.

As we read the Court, a university admissions program is narrowly tailored only if it allows for individualized consideration of applicants of all races.³¹ Such consideration does not define an applicant by race but instead ensures that she is valued for all her unique attributes. Rather than applying fixed stereotypes of ways that race affects students’ lives, an admissions policy must be “ ‘flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.’ ”³² As the Supreme Court later summarized, “The entire gist of the analysis in Grutter was that the admissions program at issue there focused on each applicant as an individual, and not simply as a member of a particular racial group.”³³ Thus, a university admissions policy is more likely to be narrowly tailored if it contemplates that a broad range of qualities and experiences beyond race will be important contributions to diversity and as such are appropriately considered in admissions decisions.³⁴

Because a race-conscious admissions program is constitutional only if holistic, flexible, and individualized, a university may not establish a quota for minority applicants, nor may it evaluate minority applications “on separate admissions tracks.”³⁵ The “racial-set-aside program” rejected by Justice Powell in Bakke ran afoul of these related prohibitions because it reserved 16 out of 100 seats for members of certain minority groups.³⁶ A university also may not award a fixed number of bonus points to minority applicants.³⁷ That was the lesson of Grafter's companion case, Gratz v. Bollinger, in which the Court struck down the University of Michigan’s undergraduate admissions program because it automatically awarded a fixed number of admissions points to all underrepresented minority applicants, resulting in a group-based admissions boost.³⁸

Both Bakke and Gratz firmly rejected group treatment, insisting that the focus be upon individuals and that an applicant’s achievements be judged in the context of one’s personal circumstances, of which race is only a part. So deployed, a white applicant raised by a single parent who did not attend high school and struggled paycheck to paycheck and a minority child of a successful cardiovascular surgeon may both claim adversity, but the personal hurdles each has cleared will not be seen to be of the same height.

C

Finally, Grutter requires that any race-conscious measures must have a “logical end point” and be “limited in time.”³⁹ This durational requirement can be satisfied by sunset provisions or by periodic reviews to reconsider whether there are feasible race-neutral alternatives that would achieve diversify interests “ ‘about as well.’ ”⁴⁰ In this respect, Grutter is best seen not as an unqualified endorsement of racial preferences, but as a transient response to anemic academic diversity. As Justice O’Con-nor observed, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”⁴¹

II. HISTORY OF THE UNIVERSITY’S ADMISSIONS POLICIES

Justice O’Connor’s vision may prove to be more aspirational than predictive. Regardless, universities will construct admissions programs wedded to their missions, which include bringing both meritorious and diverse students to campus. Each year, UT receives applications from approximately four times more students than it can enroll.⁴² Over the past two decades, UT has repeatedly revised its admissions procedures to reflect its calculus of educational values while navigating judicial decisions and legislative mandates.

A

Until 1996, UT selected students using two metrics. The first measure, still employed today, is the Academic Index (“AI”), a computation based on the student’s high school class rank, standardized test scores, and the extent to which the applicant exceeded UT’s required high school curriculum.⁴³ Perceiving that AI alone would produce a class with unacceptably low diversity levels, UT considered a second element for admissions — race. These measures combined resulted in UT admitting more than 90% of applicants who were ranked in the top ten percent of their high school class.⁴⁴

There were then no clear legal limits on a university’s use of race in admissions. The Supreme Court decided Bakke in 1978 but its guidance came in a fractured decision, leaving a quarter century of uncertainty.⁴⁵ The record does not detail precisely how race factored in admissions decisions during this time, but it is undisputed that race was considered directly and was often a controlling factor in admission.⁴⁶ Under this race-conscious admissions policy, the freshman class entering in Fall 1998 included 5,329 students, of whom 238 were African-American (4.5% of the overall class) and 832 were Hispanic (15.6%).⁴⁷

B

Race-conscious admissions ended in 1996 with Hopwood v. Texas, when a panel of this court struck down the use of race-based criteria in admissions decisions at UT’s law school.⁴⁸ A majority of that panel held that diversity in education was not a compelling government interest,⁴⁹ a conclusion the Texas Attorney General interpreted as prohibiting the use of race as a factor in admissions by any undergraduate or graduate program at Texas state universities.⁵⁰

Beginning with the 1997 admissions cycle, UT deployed a Personal Achievement Index (“PAI”) to be used with the Academic Index. In contrast to the mechanical formulas used to calculate the AI, the PAI was meant “to identify and reward students whose merit as applicants was not adequately reflected by their class rank and test scores.”⁵¹ Although facially race-neutral, the PAI was in part designed to increase minority enrollment; many of the PAI factors disproportionately affected minority applicants.⁵²

UT also implemented other facially “race-neutral” policies that, together with the AI and PAI, remain in use today. It created targeted scholarship programs to increase its yield among minority students, expanded the quality and quantity of its outreach efforts to high schools in underrepresented areas of the state, and focused additional attention and resources on recruitment in low-performing schools.⁵³

Despite these efforts, minority presence at UT decreased immediately. Although the 1996 admissions decisions were not affected by Hopwood, the publicity from the case impacted the number of admitted minorities who chose to enroll. In 1997, fewer minorities applied to UT than in years past. The number of African-American and Hispanic applicants dropped by nearly a quarter, while the total number of University applicants decreased by only 13%.⁵⁴ This decrease in minority applicants had a corresponding effect on enrollment. Compared to 1995, African-American enrollment for 1997 dropped almost 40% (from 309 to 190 entering freshmen) while Hispanic enrollment decreased by 5% (from 935 to 892 entering freshmen). In contrast, Caucasian enrollment increased by 14%, and Asian-American enrollment increased by 20%.⁵⁵

C

In 1997, the Texas legislature responded to the Hopwood decision by enacting the Top Ten Percent Law, still in effect.⁵⁶ The law altered UT’s preexisting policy and mandated that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university.

In its first year, the Top Ten Percent Law succeeded in increasing minority percentages at UT. African-American enrollment rose from 2.7% to 3.0% and Hispanic enrollment rose from 12.6% to 13.2%. However, the absolute number of minorities remained stable as a result of a smaller freshman class. Over time, both the number and percentage of enrolled Hispanics and African-Americans increased. The entering freshman class of 2004, the last admitted without the Grutier-like plan, was 4.5% African-American (309 students), 16.9% Hispanic (1,149 students), and 17.9% Asian-American (1,218 students) in a class of 6,796 students.⁵⁷

The Top Ten Percent Law did not by its terms admit students on the basis of race, but underrepresented minorities were its announced target and their admission a large, if not primary, purpose. In 2004, among freshmen who were Texas residents, 77% of the enrolled African-American students and 78% of the Hispanic students had been admitted under the Top Ten Percent Law, compared to 62% of Caucasian students.⁵⁸ These numbers highlight the contribution of the Top Ten Percent Law to increasing minority enrollment, but they also reflect a trade-off implicit in the Law: the increase rested heavily on the pass from standardized testing offered by the Top Ten Percent Law. After implementation of the Law, the likelihood of acceptance for African-American and Hispanic students in the second decile of their high school class, who were without the benefits of the pass from standardized testing, declined. Meanwhile, the acceptance probability of similarly situated Caucasian students increased.⁵⁹

D

Hopwood’s prohibitions ended after the 2004 admissions cycle with the Supreme Court’s 2003 decision in Grutter.60 In August 2003, the University of Texas Board of Regents authorized the institutions within the University of Texas system to examine “whether to consider an applicant’s race and ethnicity” in admissions “in accordance with the standards enunciated in” Grutter.61

As part of its examination, UT commissioned two studies to explore whether the University was enrolling a critical mass of underrepresented minorities. The first study examined minority representation in undergraduate classes, focusing on classes of “participatory size,” which it defined as between 5 and 24 students. UT analyzed these classes, which included most of the undergraduate courses, because they offered the best opportunity for robust classroom discussion, rich soil for diverse interactions. According to the study, 90% of these smaller classes in Fall 2002 had either one or zero African-American students, 46% had one or zero Asian-American students, and 43% had one or zero Hispanic students.⁶² A later retabulation, which excluded the very smallest of these classes and considered only classes with 10 to 24 students, found that 89% of those classes had either one or zero African-American students, 41% had one or zero Asian-American students, and 37% had either one or zero Hispanic students.⁶³ In its second study, UT surveyed undergraduates on their impressions of diversity on campus and in the classroom. Minority students reported feeling isolated, and a majority of all students felt there was “insufficient minority representation” in classrooms for “the full benefits of diversity to occur.”⁶⁴

The University incorporated the findings of these two studies in its June 2004 Proposal to Consider Race and Ethnicity in Admissions.⁶⁵ The 200k Proposal concluded that diverse student enrollment “break[s] down stereotypes,” “promotes cross-racial understanding,” and “prepares students for an increasingly diverse workplace and society.”⁶⁶ With respect to the undergraduate program in particular, the 200k Proposal explained that “[a] comprehensive college education requires a robust exchange of ideas, exposure to differing cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders.”⁶⁷ With one eye on Grutter, it observed that these objectives are especially important at UT because its “mission and ... flagship role” is to “prepare its students to be the leaders of the State of Texas” — a role which, given the state’s increasingly diverse profile, will require them “to be able to lead a multicultural workforce and to communicate policy to a diverse electorate.”⁶⁸

Citing the classroom diversity study, the 2004 Proposal explained that UT had not yet achieved the critical mass of underrepresented minority students needed to obtain the full educational benefits of diversity. Accordingly, the 2004 Proposal recommended adding the consideration of race as one additional factor within a larger admissions scoring index. This recommendation was presented as “an acknowledgment that the significant differences between the racial and ethnic makeup of the University’s undergraduate population and the state’s population prevent the University from fully achieving" its mission.”⁶⁹

After more than a year of study following the Grutter decision, UT adopted a policy to include race as one of many factors considered in admissions. UT has no set date by which it will end the use of race in undergraduate admissions. Rather, it formally reviews the need for race-conscious measures every five years and considers whether adequate race-neutral alternatives exist. In addition, the district court found that the University informally reviews its admissions procedures each year.⁷⁰

The current policy has produced noticeable results. One magazine dedicated to diversity in higher education ranked UT “sixth in the nation in producing undergraduate degrees for minority groups.”⁷¹ In an entering class that was roughly the same size in 1998 as it was in 2008, the enrollment of African-American students doubled from 165 students to 335 students. Hispanic enrollment increased approximately 1.5 times, from 762 students to 1,228 students. Asian-American enrollment also increased nearly 10%, from 1,034 students to 1,126 students.⁷² By contrast, in 2004, the last year the Top Ten Percent Law operated without the Grutter plan, fall enrollment included only 275 African-Americans and 1,024 Hispanics.

Because of the myriad programs instituted, it can be difficult to attribute increases in minority enrollment to any one initiative. In addition, demographics have shifted in Texas, so increases in minority enrollment likely in part reflect the increased presence of minorities statewide.

III. THE CHALLENGED POLICY

UT’s consideration of race is one part of the complex admissions process operating when Appellants were rejected. Given Appellants’ challenge, we must examine the whole of the process.

A

UT is a public institution of higher education, authorized by the Texas Constitution and supported by state and federal funding. Accordingly, it begins its admissions process by dividing applicants into three pools: (1) Texas residents, (2) domestic non-Texas residents, and (3) international students. Students compete for admission only against other students in their respective pool. Texas residents are allotted 90% of all available seats, with admission based on a two-tiered system, beginning with students automatically admitted under the Top Ten Percent Law and then filling the remaining seats on the basis of the Academic and Personal Achievement Indices.⁷³ Because Appellants are Texas residents, their challenge focuses on the admissions procedures applied to in-state applicants.

Texas applicants are divided into two subgroups: (1) Texas residents who are in the top ten percent of their high school class and (2) those Texas residents who are not. Top ten percent applicants are guaranteed admission to the University, and the vast majority of freshmen are selected in this way, without a confessed consideration of race. In 2008, for example, 81% of the entering class was admitted under the Top Ten Percent Law, filling 88% of the seats allotted to Texas residents and leaving only 1,216 offers of admission university-wide for non-top ten percent residents.⁷⁴ The impact of the Top Ten Percent Law on UT’s admissions has increased dramatically since it was first introduced in 1998, when only 41% of the seats for Texas residents were claimed by students with guaranteed admission.⁷⁵

The remaining Texas applicants, who were not within the top ten percent of their high school graduating class, compete for admission based on their Academic and Personal Achievement Indices.⁷⁶ The Academic Index is the mechanical formula that predicts freshman GPA using standardized test scores and high school class rank.⁷⁷ Some applicants’ AI scores are high enough that they receive admission based on that score alone. Others are low enough that their applications are considered presumptively denied. If an application is presumptively denied, senior admission staff review the file and may, on rare occasions, designate the file for full review notwithstanding the AI score.⁷⁸

The Personal Achievement Index is based on three scores: one score for each of the two required essays and a third score, called the personal achievement score, which represents an evaluation of the applicant’s entire file. The essays are each given a score between 1 and 6 through “a holistic evaluation of the essay as a piece of writing based on its complexity of thought, substantiality of development, and facility with language.”⁷⁹ The personal achievement score is also based on a scale of 1 to 6, although it is given slightly greater weight in the final PAI calculation than the mean of the two essay scores.⁸⁰

This personal achievement score is designed to recognize qualified students whose merit as applicants was not adequately reflected by their Academic Index. Admissions staff assign the score by assessing an applicant’s demonstrated leadership qualities, awards and honors, work experience, and involvement in extracurricular activities and community service. In addition, the personal achievement score includes a “special circumstances” element that may reflect the socioeconomic status of the applicant and his or her high school, the applicant’s family status and family responsibilities, the applicant’s standardized test score compared to the average of her high school, and — beginning in 2004 — the applicant’s race.⁸¹ To assess these intangible factors, evaluators read the applicant’s essays again, but this time with an eye to the information conveyed rather than the quality of the student’s writing. Admissions officers undergo annual training by a nationally recognized expert in holistic scoring, and senior staff members perform quality control to verify that awarded scores are appropriate and consistent. The most recent study, in 2005, found that holistic file readers scored within one point of each other 88% of the time.⁸²

None of the elements of the personal achievement score — including race — are considered individually or given separate numerical values to be added together. Rather, the file is evaluated as a whole in order to provide the fullest possible understanding of the student as a person and to place his or her achievements in context.⁸³ As UT’s director of admissions explained, “race provides- — -like [the] language [spoken in the applicant’s home], whether or not someone is the first in their family to attend college, and family responsibilities — important context in which to evaluate applicants, and is only one aspect of the diversity that the University seeks to attain.”⁸⁴ Race is considered as part of the applicant’s context whether or not the applicant belongs to a minority group, and so — at least in theory — it “can positively impact applicants of all races, including Caucasian^], or [it] may have no impact whatsoever.”⁸⁵ Moreover, given the mechanics of UT’s admissions process, race has the potential to influence only a small part of the applicant’s overall admissions score. The sole instance when race is considered is as one element of the personal achievement score, which itself is only a part of the total PAI. Without a sufficiently high AI and well-written essays, an applicant with even the highest personal achievement score will still be denied admission.⁸⁶

B

Although the process for calculating AI and PAI scores is common to all parts of the University, each offer of admission to UT is ultimately tied to an individual school or major. Texas residents in the top ten percent of their high school class are guaranteed admission to the University, but they are not assured admission to the individual school or program of their choice.

Most majors and colleges in the University provide automatic admission to Top Ten Percent Law applicants, but certain “impacted majors” — including the School of Business, the College of Communication, and the Schools of Engineering, Kinesiology, and Nursing — are obligated to accept only a certain number of Top Ten Percent Law applicants.⁸⁷ These programs are “impacted” because they could fill 80% or more of their available spaces each year solely through operation of the Top Ten Percent Law. To avoid oversubscription and to allow these colleges and majors to admit some non-top ten percent applicants, UT caps the percentage of students automatically admitted to these programs at 75% of the available spaces.⁸⁸

Top Ten Percent Law applicants who do not receive automatic entry to their first choice program compete for admission to the remaining spaces, and if necessary to their second-choice program, on the basis of their AI and PAI scores. The admissions office places students into matrices for each preferred school or major, with students grouped by AI score along one axis and PAI score along the other axis. Liaisons for the majors then establish a cutoff line, which is drawn in a stair-step pattern. Applicants denied admission to their first-choice program are considered for their second choice, with cutoff lines readjusted to reflect the influx of those applicants. Any top ten percent applicants not admitted to either their first- or second-choice program are automatically admitted as Liberal Arts Undeclared majors. All other applicants not yet admitted to UT compete, again according to AI and PAI scores, for any remaining seats in the Liberal Arts Undeclared program.

Although this completes the admissions process for the fall portion of the freshman class, no Texas resident who submits a timely application is denied admission. Instead, those residents not admitted to the entering fall class are offered admission to either the summer program or the Coordinated Admissions Program (CAP). Marginal applicants who missed the cutoff for the fall class are offered admission to the summer program, which permits students to begin their studies at UT during the summer and then join the regularly admitted students in the fall. About 800 students enroll in the summer program each year. All remaining Texas applicants are automatically enrolled in CAP, which guarantees admission as a transfer student if the student enrolls in another UT system campus for her freshman year and meets certain other conditions, including the completion of thirty credit hours with a cumulative grade point average of 3.2 or higher.

C

The Academic Index and Personal Achievement Index now employed by UT have been in continuous use since 1997. The lone substantive change came in 2005, following the Grutter decision, when the Board of Regents authorized the consideration of race as another “special circumstance” in assessing an applicant’s personal achievement score.

Race — like all other elements of UT’s holistic review — is not considered alone. Admissions officers reviewing each application are aware of the applicant’s race, but UT does not monitor the aggregate racial composition of the admitted applicant pool during the process. The admissions decision for any particular applicant is not affected — positively or negatively— by the number of other students in her racial group who have been admitted during that year.⁸⁹ Thus, “it is difficult to evaluate which applicants have been positively or negatively affected by its consideration or which applicants were ultimately offered admission due to their race who would not have otherwise been offered admission.”⁹⁰ Nevertheless, the district court found that race “is undisputedly a meaningful factor that can make a difference in the evaluation of a student’s application.”⁹¹

D

UT undoubtedly has a compelling interest in obtaining the educational benefits of diversity, and its reasons for implementing race-conscious admissions — expressed in the 2004 Proposal — mirror those approved by the Supreme Court in Grutter. The district court found that both the UT and Grutter policies “attempt to promote ‘cross-racial understanding,’ ‘break down racial stereotypes,’ enable students to better understand persons of other races, better prepare students to function in a multicultural workforce, cultivate the next set of national leaders, and prevent minority students from serving as ‘spokespersons’ for their race.”⁹² Like the law school in Grutter, UT “has determined, based on its experience and expertise, that a ‘critical mass’ of underrepresented minorities is necessary to further its compelling interest in securing the educational benefits of a diverse student body.”⁹³ UT has made an “educational judgment that such diversity is essential to its educational mission,” just as Michigan’s Law School did in Grutter.94

Considering UT’s admissions system in its historical context, it is evident that the efforts of the University have been studied, serious, and of high purpose, lending support to a constitutionally protected zone of discretion. That said, the use of race summons close judicial scrutiny, necessary for the nation’s slow march toward the ideal of a color-blind society, at least as far as the government can see.

IV. STANDARD OF REVIEW

It is a given that as UT’s Grutter-like admissions program differentiates between applicants on the basis of race, it is subject to strict scrutiny with its requirement of narrow tailoring.⁹⁵ At the same time, the Supreme Court has held that “[cjontext matters” when evaluating race-based governmental action, and a university’s educational judgment in developing diversity policies is due deference.⁹⁶

A

Judicial deference to a university’s academic decisions rests on two independent foundations. First, these decisions are a product of “complex educational judgments in an area that lies primarily within the expertise of the university,” far outside the experience of the courts.⁹⁷ Second, “universities occupy a special niche in our constitutional tradition,” with educational autonomy grounded in the First Amendment.⁹⁸ As Justice Powell explained in Bakke, “[ajcademic freedom .... includes [a university’s] selection of its student body.”⁹⁹

Yet the scrutiny triggered by racial classification “is no less strict for taking into account” the special circumstances of higher education.¹⁰⁰ “[S]triet scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decisionmaker for the use of race in [a] particular context.”¹⁰¹ Narrow tailoring, a component of strict scrutiny, requires any use of racial classifications to so closely fit a compelling goal as to remove the possibility that the motive for the classification was illegitimate racial stereotype. Rather than second-guess the merits of the University’s decision, a task we are ill-equipped to perform, we instead scrutinize the University’s decisionmaking process to ensure that its decision to adopt a race-conscious admissions policy followed from the good faith consideration Grutter requires. We presume the University acted in good faith, a presumption Appellants are free to rebut.¹⁰² Relatedly, while we focus on the University’s decision to adopt a Grutter-like plan, admissions outcomes remain relevant evidence of the plan’s necessity — a reality check.

B

With a nod to Grutter’’s command that we generally give a degree of deference to a university’s educational judgments, Appellants urge that Grutter did not extend such deference to a university’s decision to implement a race-conscious admissions policy. Instead, they maintain Grutter deferred only to the university’s judgment that diversity would have educational benefits, not to the assessment of whether the university has attained critical mass of a racial group or whether race-conscious efforts are necessary to achieve that end.

As an initial matter, this argument in its full flower is contradicted by Grutter. The majority held that, like the examination into whether the University has a compelling interest, “the narrow-tailoring inquiry ... must be calibrated to fit the distinct issues raised by the use of race to achieve student body diversity in public higher education.”¹⁰³ That is, the narrow-tailoring inquiry — like the compelling-interest inquiry' — is undertaken with a degree of deference to the University’s constitutionally protected, presumably expert academic judgment.

Appellants would have us borrow a more restrictive standard of review from a series of public employment and government contracting cases, in which the Supreme Court “held that certain government actions to remedy past racial discrimination — actions that are themselves based on race — are constitutional only where there is a ‘strong basis in evidence’ that the remedial actions were necessary.”¹⁰⁴ The Court most recently applied this strong-basis-in-evidence standard in Ricci v. DeStefano.

In Ricci, white firefighters from New Haven, Connecticut sued under Title VII, challenging the city’s decision to disregard a promotions test after the results showed that white candidates significantly outperformed minority candidates.¹⁰⁵ New Haven defended this action, arguing that if it had ratified the test results it could have faced liability under Title VII for adopting a practice that had a disparate impact on the minority firefighters.¹⁰⁶ The white firefighters, however, argued that ignoring the test results was a violation of Title VII’s separate prohibition against intentional race discrimination, or disparate treatment.¹⁰⁷ Responding to this tension, the Supreme Court held that such intentional race-based action is not permitted by Title VII unless the employer can demonstrate with a strong basis in evidence that it would have been liable under the disparate impact provision had it not taken the action.¹⁰⁸ The Court suggested that anything less would risk creating a de facto quota system, where an employer could disregard test results to achieve a preferred racial balance, impermissibly shifting the focus from individual discrimination to group bias.¹⁰⁹ Applying the strong-basis-in-evidenee standard, the Supreme Court held that New Haven’s fear of disparate impact liability was not adequately supported.¹¹⁰

The city had argued it only needed to show a fear of liability based on a good-faith belief — a rough analogy to the university admissions standard. Yet the Court found that an intent-based standard could not be squared with the statutory text. The Ricci Court turned to the strong-basis-in-evidence standard “as a matter of statutory construction to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII.”¹¹¹

Although Ricci did not address the firefighters’ equal protection claim, the Court derived its standard from Richmond v. J.A. Croson Co.,112 a government contracting case, which in turn adopted from a plurality opinion in Wygant v. Jackson Board of Education, a public employment case.¹¹³ In Wygant, the plurality concluded that defending race-based public employment decisions as responsive to present effects of past discrimination required a strong basis in evidence of the past discrimination.¹¹⁴ Similarly, Croson adopted this standard after observing that “an amorphous claim [of] past discrimínation in a particular industry cannot justify the use of an unyielding racial quota.”¹¹⁵

This recitation of history, quick as it is, makes plain that the cases Appellants cite have little purchase in this challenge to university admissions. The high standard for justifying the use of race in public employment decisions responds to the reality that race used in a backward-looking attempt to remedy past wrongs, without focus on individual victims, does not treat race as part of a holistic consideration. In doing so, it touches the third rail of racial quotas. Wygant and Croson both involved explicit quotas; in Ricci, the Court was concerned that the city’s use of race threatened to devolve into a de facto quota.

By contrast, Grutter recognized that universities are engaged in a different enterprise. Their holistic approach is part of a forward-looking effort to obtain the educational benefits of diversity. The look to race as but one element of this further goal, coupled with individualized consideration, steers university admissions away from a quota system. Grutter teaches that so long as a university considers race in a holistic and individualized manner, and not as part of a quota or fixed-point system, courts must afford a measure of deference to the university’s good faith determination that certain race-conscious measures are necessary to achieve the educational benefits of diversity, including attaining critical mass in minority enrollment.

Parents Involved in Community Schools v. Seattle School District No. 1 further supports this understanding.¹¹⁶ When scrutinizing two school districts’ race-conscious busing plans, the Court invoked Grutter's “serious, good faith consideration” standard, rather than the strong-basis-in-evidence standard that Appellants would have us apply.¹¹⁷ The Parents Involved Court never suggested that the school districts would be required to prove their plans were meticulously supported by some particular quantum of specific evidence. Rather, the Court struck down the school districts’ programs because they pursued racial balancing and defined students based on racial group classifications, not on individual circumstances.

In short, the Court has not retreated from Grutter1 s mode of analysis, one tailored to holistic university admissions programs. Thus, we apply strict scrutiny to race-conscious admissions policies in higher education, mindful of a university’s academic freedom and the complex educational judgments made when assembling a broadly diverse student body.

C

Appellants do not allege that UT’s race-conscious admissions policy is functionally different from, or gives greater consideration to race than, the policy upheld in Grutter. Rather, Appellants question whether UT needs a Grutter-like policy. As their argument goes, the University’s race-conscious admissions program is unwarranted because (1) UT has gone beyond a mere interest in diversity for education’s sake and instead pursues a racial composition that mirrors that of the state of Texas as a whole, amounting to an unconstitutional attempt to achieve “racial balancing”; (2) the University has not given adequate consideration to available “race-neutral” alternatives, particularly percentage plans like the Top Ten Percent Law; and (3) UT’s minority enrollment under the Top Ten Percent Law already surpassed critical mass, such that the additional (and allegedly “minimal”) increase in diversity achieved through UT’s Grutterlike policy does not justify its use of race-conscious measures. We will consider each of these arguments in turn.

V. RACIAL BALANCING

Again, diversity is a permissible goal for educational institutions, but “outright racial balancing” is not. Attempting to ensure that the student body contains some specified percentage of a particular racial group is “patently unconstitutional.”¹¹⁸ This concept follows from the Supreme Court’s repeated emphasis that, by itself, increasing racial representation is not a sufficiently compelling interest to justify the use of racial preferences. Grutter described many important educational interests that may be sought through diversity, but steadfastly maintained that “ ‘[r]acial balance is not to be to be achieved for its own sake.’ ”¹¹⁹ Moreover, “[t]he point of the narrow tailoring analysis in which the Grutter Court engaged was to ensure that the use of racial classifications was indeed part of a broader assessment of diversity, and not simply an effort to achieve racial balance” by creating an unconstitutional quota.¹²⁰

A

Looking to the details of UT’s race-conscious admissions policy, it is clear that administrators knew a quota system would not survive judicial review, and they took care to avoid this fatal mistake. UT’s system was modeled after the Grutter program, which the Supreme Court held was not a quota. UT has never established a specific number, percentage, or range of minority enrollment that would constitute “critical mass,” nor does it award any fixed number of points to minority students in a way that impermissibly values race for its own sake.¹²¹

Further, there is no indication that UT’s Grutter-like plan is a quota by another name. It is true that UT looks in part to the number of minority students when evaluating whether it has yet achieved a critical mass, but “[s]ome attention to numbers, without more, does not transform a flexible admissions system into a rigid quota.”¹²² Whereas a quota imposes a fixed percentage standard that cannot be deviated from, a permissible diversity goal “ ‘require[s] only a good-faith effort ... to come within a range demarcated by the goal itself.’ ”¹²³ Indeed, UT’s policy improves upon the program approved in Grutter because the University does not keep an ongoing tally of the racial composition of the entering class during its admissions process.¹²⁴

UT has not admitted students so that its undergraduate population directly mirrors the demographics of Texas. Its methods and efforts belie the charge. The percentage of Hispanics at UT is less than two-thirds the percentage of Hispanics in Texas, and the percentage of African-Americans at UT is half the percentage of Texas’s African-American population, while Asian-American enrollment is more than five times the percentage of Texan Asian-Americans.¹²⁵

B

Appellants nevertheless argue that UT’s program amounts to racial balancing because it supposedly evinces a special comcern for demographically underrepresented groups, while neglecting the diverse contributions of others. These arguments do not account for the operation of UT’s admissions system or the scope of the diversity interest approved by the Court in Grwtter.

The district court expressly found that race can enhance the personal achievement score of a student from any racial background, including whites and Asian-Americans.¹²⁶ For example, a white student who has demonstrated substantial community involvement at a predominantly Hispanic high school may contribute a unique perspective that produces a greater personal achievement score than a similarly situated Hispanic student from the same school. This possibility is the point of Grower’s holistic and individualized assessments, which must be “ ‘flexible enough to consider all pertinent elements of diversity in light of the particular qualifications of each applicant.’ ”¹²⁷ Indeed, just as in Grutter, UT applicants of every race may submit supplemental information to highlight their potential diversity contributions, which allows students who are diverse in unconventional ways to describe their unique attributes.¹²⁸

The summary judgment record shows that demographies are not consulted as part of any individual admissions decision, and UT’s admissions procedures do not treat certain racial groups or minorities differently than others when reviewing individual applications. Rather, the act of considering minority group demographics (to which Appellants object) took place only when the University first studied whether a race-conscious admissions program was needed to attain critical mass. Appellants’ objection therefore must be directed not to the design of the program, but rather to whether UT’s decision to reintroduce race as a factor in admissions was made in good faith.

Appellants contend that UT revealed its true motive to be outright racial balancing when it referenced state population data to justify the adoption of race-conscious admissions measures. They insist that if UT were truly focused on educational benefits and critical mass, then there should be no reason to consult demographic data when determining whether UT had sufficient minority representation.

We disagree. The University’s policies and measured attention to the community it serves are consonant with the educational goals outlined in Grutter and do not support a finding that the University was engaged in improper racial balancing during our time frame of review. Both Grutter and Bakke recognized that “there is of course ‘some relationship between numbers and achieving the benefits to be derived from a diverse student body.’ ”¹²⁹ In its policymaking process, UT gave appropriate attention to those educational benefits identified in Grutter without overstepping any constitutional bounds.

Grutter recognized that racial and ethnic backgrounds play an influential role in producing the diversity of views and perspectives which are paramount to a university’s educational mission. As Justice O’Connor explained, the “unique experience of being a racial minority in a society, like our own, in which race unfortunately still matters” can have a significant impact on a student’s views.¹³⁰ The Court acknowledged that “[b]y virtue of our Nation’s struggle with racial inequality, [underrepresented minority students] are both likely to have experiences with particular importance to the [University’s] mission, and less likely to be admitted in meaningful numbers on criteria that ignore these experiences.”¹³¹ UT properly concluded that these individuals from the state’s underrepresented minorities would be most likely to add unique perspectives that are otherwise absent from its classrooms. Identifying which backgrounds are underrepresented, in turn, presupposes some reference to demographics, and it was therefore appropriate for UT to give limited attention to this data when considering whether its current student body included a critical mass of underrepresented groups.

Preparing students to function as professionals in an increasingly diverse workforce likewise calls for some consideration of a university’s particular educational mission and the community it serves. For instance, a nationally renowned law school draws upon a nationwide applicant pool and sends its graduates into careers in all states; therefore it is appropriate for such a school to consider national diversity levels when setting goals for its admissions program. In contrast, UT’s stated goal is to “produce graduates who are capable of fulfilling the future leadership needs of Texas.”¹³² This objective calls for a more tailored diversity emphasis. In a state as racially diverse as Texas, ensuring that graduates learn to collaborate with members of racial groups they will encounter in the workforce is especially important. The 2004 Proposal concluded that a race-conscious admissions program was necessary at UT specifically because “from a racial, ethnic, and cultural standpoint, students at the University [were] being educated in a less-than-realistic environment that [was] not conducive to training the leaders of tomorrow.”¹³³

The need for a state’s leading educational institution to foster civic engagement and maintain visibly open paths to leadership also requires a degree of attention to the surrounding community. A university presenting itself as open to all may be challenged when the state’s minority population grows steadily but minority enrollment does not. Indeed, the 2004 Proposal expressed concern that UT appeared “largely closed to nonwhite applicants” and did not “provide a welcoming supportive environment” for minority students.¹³⁴ UT was keenly aware that by sending a message that people of all stripes can succeed at UT, the University would attract promising applicants from once-insulated communities, over time narrowing the credentials gap between minority and non-minority applicants.¹³⁵ After Hopwood, such applicants were dissuaded from applying to UT. But through the Top Ten Percent Law and Grutter-like plan, UT has increased its minority applicant pool in its effort to ensure that it serves as a flagship university for the entire state, not just Texans of certain backgrounds. Cultivating paths to leadership for underrepresented groups serves both the individual and the public, sustaining an infrastructure of leaders in an increasingly pluralistic society. Although a university must eschew demographic targets, it need not be blind to significant racial disparities in its community, nor is it wholly prohibited from taking the degree of disparity into account.

Finally, Grutter’s structure accepts that a university’s twin objectives of rewarding academic merit and fostering diversity can be complementary rather than competing goals; that students rising to the top of underrepresented groups demonstrate promise as future leaders. These students’ relative success in the face of harmful and widespread stereotypes evidences a degree of drive, determination, and merit not captured by test scores alone. Insofar as Appellants complain that the University’s limited attention to demographics was inconsistent with the legitimate educational concerns recognized in Bakke and Grutter, we conclude that their contention cannot be sustained.

Appellants argue that a broad approach to educational diversity is improper because “critical mass” must be an “inward-facing concept ... that focuses on the functioning of the student body,” encompassing only that level of minority enrollment necessary to ensure that minority students participate in the classroom and do not feel isolated. While Appellants’ view may comport with one literal interpretation of the “critical mass” label, it is not the view that prevailed in Grutter. The Grutter majority defined critical mass “by reference to the educational benefits that diversity is designed to produce,”¹³⁶ and the educational benefits recognized in Grutter go beyond the narrow “pedagogical concept” urged by Appellants. On this understanding, there is no reason to assume that critical mass will or should be the same for every racial group or every university. We are persuaded, as was the district court, that the University adhered to Grutter when it reintroduced race into its admissions process based in part on an analysis that devoted special attention to those minorities which were most significantly underrepresented on its campus.

VI. THE TOP TEN PERCENT LAW

Grutter is best read as a path toward the moment when all race-conscious measures become unnecessary. To that end, Grutter requires universities that employ race-conscious admissions to seriously consider race-neutral alternatives. But “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,” especially if the proffered alternatives would require the University to sacrifice other important interests, like its academic selectivity and reputation for excellence.¹³⁷

The parties devote significant attention to the Top Ten Percent Law.¹³⁸ Since the Law was first enacted in 1997, UT has seen increases in both African-American and Hispanic enrollment, but again, changing demographics and other minority outreach programs render it difficult to quantify the increases attributable to the Top Ten Percent Law.¹³⁹

Appellants put forward the Top Ten Percent Law as a facially race-neutral alternative that would allow UT to obtain a critical mass of minority enrollment without resorting to race-conscious admissions. As the argument goes, if the Top Ten Percent Law were able to serve the University’s interests “about as well” as race-conscious admissions, without differentiating between students on the basis of race, then it would render UT’s current admissions program unconstitutional.¹⁴⁰ UT responds that the Top Ten Percent Law does not constitute a workable alternative to a flexible admissions system, and so it is “entirely irrelevant” as a matter of law in determining whether or not a university may adopt the holistic consideration of race to achieve critical mass.

UT is correct that so-called “percentage plans” are not a constitutionally mandated replacement for race-conscious admissions programs under Grutter, although — as will become apparent — this realization alone does not end our constitutional inquiry. The idea of percentage plans as a viable alternative to race-conscious admissions policies was directly advocated to the Grutter Court by the United States, arguing as amicus curiae.141 In response, the Court held that although percentage plans may be a race-neutral means of increasing minority enrollment, they are not a workable alternative — at least in a constitutionally significant sense — because “they may preclude the university from conducting the individualized assessments necessary to assemble a student body that is not just racially diverse, but diverse along all the qualities valued by the university.”¹⁴² In addition, the Court emphasized existing percentage plans — including UT’s — are simply not “capable of producing a critical mass without forcing [universities] to abandon the academic selectivity that is the cornerstone of [their] educational mission.”¹⁴³

That the Top Ten Percent Law is not a constitutionally-mandated alternative does not make it irrelevant. By now it is clear that the Law is inescapably tied to UT’s Grutter plan, as Gndter does its work with the applicants who remain after the cut of the Top Ten Percent Law. In 2008, top ten percent applicants accounted for 8,984 of the. 10,200 Texas admittees.¹⁴⁴ Thus, with the Top Ten Percent Law in effect, UT’s Grutter plan can only possibly influence the review of approximately 1,200 admitted students’ applications.¹⁴⁵ In evaluating the constitutionality of an admissions program, we cannot ignore a part of the program comprising 88% of admissions offers for Texas residents and yielding 81% of enrolled Texan freshmen.¹⁴⁶

The reality is that the Top Ten Percent Law alone does not perform well in pursuit of the diversity Grutter endorsed and is in many ways at war with it. While the Law may have contributed to an increase in overall minority enrollment, those minority students remain clustered in certain programs, limiting the beneficial effects of educational diversity.¹⁴⁷ For example, nearly a quarter of the undergraduate students in UT’s College of Social Work are Hispanic, and more than 10% are African-American. In the College of Education, 22.4% of students are Hispanic and 10.1% are African-American. By contrast, in the College of Business Administration, only 14.5% of the students are Hispanic and 3.4% are African-American.¹⁴⁸ It is evident that if UT is to have diverse interactions, it needs more minority students who are interested in and meet the requirements for a greater variety of colleges, not more students disproportionately enrolled in certain programs. The holistic review endorsed by Grutter gives UT that discretion, but the Top Ten Percent Law, which accounts for nearly 90% of all Texas resident admissions, does not.¹⁴⁹

Focusing narrowly on geographic diversity, in part as a proxy for race, the Top Ten Percent Law crowds out other types of diversity that would be considered under a Grutter-\ike plan. By ignoring these other diversity contributions, the Top Ten Percent Law restricts the University’s ability to achieve the maximum educational benefits of a truly diverse student body.¹⁵⁰ As UT’s 2003 classroom study shows, percentage plans bear little promise of producing the meaningful diverse interactions envisioned by Grutter, at least not in the classroom. For instance, the study reported that although overall enrollment of minority students at UT rose significantly between 1996 and 2002, the Fall 2002 schedule contained more classes with zero or one African American or Hispanic students than had the Fall 1996 schedule.¹⁵¹

Justice Ginsburg pointed out in Gruttef s companion case that percentage plans create damaging incentives to the education system. She observed that “[p]ercentage plans depend for their effectiveness on continued racial segregation at the secondary school level.” These measures “encourage parents to keep their children in low-performing segregated schools, and discourage students from taking challenging classes that might lower their grade point averages.”¹⁵² Similarly, these plans create a strong incentive to avoid competitive educational institutions like magnet schools.¹⁵³

Texas applicants falling outside the top ten percent group face extreme competition to gain admittance to the University. There are approximately 16,000 students competing for only 1,216 fall admissions slots. The competition is so great that, on average, students admitted from outside the top ten percent of their high school class, regardless of race, have even higher SAT scores than those granted automatic admission under the Top Ten Percent Law.¹⁵⁴ Perversely, this system negatively impacts minority students (who nationally have lower standardized test scores) in the second decile of their classes at competitive high schools. Grutter1 s holistic look at race may soften this unreasonable exclusion of those second-decile minorities better qualified than many of the non-minorities bluntly swept in under the Top Ten Percent Law. But not much. It requires no empirical study to observe that those excluded under this Law have been a rich source of Texas leaders over its history and that for some applicants, admission to the flagship school of Texas is little more possible than admission to Harvard.¹⁵⁵ That all of these weaknesses are apparent in the Top Ten Percent Law only make its focus upon race the plainer.¹⁵⁶

The Top Ten Percent Law was adopted to increase minority enrollment. That it has done, but its sweep of admissions is a polar opposite of the holistic focus upon individuals. Its internal proxies for race end-run the Supreme Court’s studied structure for the use of race in university admissions decisions. It casts aside testing historically relied upon, admitting many top ten percent minorities with significantly lower scores than rejected minorities and non-minorities alike. That these admitted minorities are academically able to remain in the University does not respond to the reality that the Top Ten Percent Law eliminated the consideration of test scores, and correspondingly reduced academic selectivity, to produce increased enrollment of minorities. Such costs may be intrinsic to affirmative action plans. If so, Grutter at least sought to minimize those costs through narrow tailoring. The Top Ten Percent Law is anything but narrow.

In short, while the Top Ten Percent Law appears to succeed in its central purpose of increasing minority enrollment, it comes at a high cost and is at best a blunt tool for securing the educational benefits that diversity is intended to achieve. We cannot fault UT’s contention that the Top Ten Percent Law is plainly not the sort of workable race-neutral alternative that would be a constitutionally mandated substitute for race-conscious university admissions policies. We are keenly aware that the University turned to the Top Ten Percent Law in response to a judicial ruling. Yet we cannot agree that it is irrelevant. To the contrary, that the Top Ten Percent Law, accounting for the vast majority of in-state admissions, threatens to erode the foundations UT relies on to justify implementing Grutter policies is a contention not lacking in force. “Facially neutral” has a talismanic ring in the law, but it can be misleading. It is here.

VII. CRITICAL MASS

Appellants contend that UT’s decision to reintroduce race-conscious admissions was unconstitutional because minority enrollment already met or exceeded “critical mass” when this decision was made, and thus any further facial consideration of race was neither warranted nor constitutional. Appellants claim the best measure of whether UT had attained the benefits of diversity is the raw percentage of minorities enrolled. As a result of the combined effects of changing demographics, targeted high school programs, and the Top Ten Percent Law, total minority enrollment had increased over the years. When the decision was made to reintroduce race-conscious admissions in 2004, underrepresented minorities made up 21.4% of the incoming class (4.5% African-American and 16.9% Hispanic).¹⁵⁷

Although Texas was not constitutionally required to enact the Top Ten Percent Law, Appellants are correct that the decision to do so — and the substantial effect on aggregate minority enrollment at the University — places at risk UT’s race-conscious admissions policies. We are confident, and hold, that a Gratter-style admissions system standing alone is constitutional. That said, whether to overlay such a plan with the Top Ten Percent Law and how to calibrate its flow presents a Hobson’s choice between the minority students it contributes and the test of constitutional bounds it courts. True enough, the Top Ten Percent Law is in a sense, perhaps a controlling sense, a “facially” race-neutral plan. But it was animated by efforts to increase minority enrollment, and to the extent it succeeds it is because at key points it proxies for race.

A

Appellants propose various baseline levels of diversity which, they suggest, would fully satisfy the University’s interest in attaining critical mass. They first argue that if “from 13.5 to 20.1 percent” minority enrollment was adjudged to be great enough diversity each year by Michigan’s Law School in Grutter, then the 21.4% minority enrollment that UT had achieved prior to reintroducing race-conscious admissions must already have achieved critical mass. We find this comparison inapt for numerous reasons.

Appellants’ comparison presumes that critical mass must have some fixed upper bound that applies across different schools, different degrees, different states, different years, different class sizes, and different racial and ethnic subcomposition. It is based on Appellants’ continued insistence that the concept of critical mass is defined by the minimum threshold for minority students to have their ideas represented in class discussions and not to feel isolated or like spokespersons for their race. As we have discussed, Grutter firmly rejects that premise and defines critical mass by reference to a broader view of diversity.

At oral argument, Appellants qualified this insistence and wisely conceded that what constitutes critical mass in the eyes of one school might not suffice at another. Grutter concerned a law school, whereas Appellants challenge UT’s undergraduate program. Michigan’s Law School operates on a national level, while UT focuses on recruiting and producing future leaders for Texas. The law school enrolled approximately 350 students in its first-year class, few enough students that diversity in the student body readily approximates diversity in the classroom. In contrast, UT enrolls approximately 7,000 undergraduates in its first-year class and has data showing diversity rates vary widely across individual classrooms. African-Americans and Hispanics never represented more than a combined 14.8% of the Michigan Law School’s applicant pool during the examined time period,¹⁵⁸ while those same underrepresented minorities were 28% of UT’s freshman applicant pool for Fall 2008.¹⁵⁹

Appellants point to the Supreme Court’s observation in United States v. Virginia that the Virginia Military Institute “could achieve at least 10% female enrollment — a sufficient critical mass to provide the female cadets with a positive educational experience.”¹⁶⁰ But this figure, even if accurate, covers only one component of the multi-faceted concept of diversity elaborated in Grutter. In any event, the claim that 10% minority enrollment is a ceiling to critical mass is confounded by Grutter.

Appellants lastly note that minority enrollment at UT now exceeds the level it had reached in the mid-1990s, pre-ffopwood, when the University was free to obtain any critical mass it wanted through overtly race-based decisions. UT responds that it has consistently maintained, both in the 2004 Proposal and before this Court, that even before Hop-wood it had never reached critical mass.¹⁶¹ While UT was making a greater use of race in that era, its pursuit of diversity was constrained by other interests, such as admitting only well-qualified students. We cannot assume that diversity levels immediately before Hopwood were indicative of critical mass. Moreover, minority enrollment in 1996 is not indicative of UT’s true pve-Hopwood diversity. While admissions decisions in 1996 were not controlled by Hopwood, the case impacted enrollment, resulting in fewer minority students. If one instead compares minority enrollment from 1989 to 2004, a different picture emerges. In 2004, UT enrolled significantly fewer African-Americans than it had in 1989 (309 compared to 380). In addition, the 2004 entering class consisted of only 100 more Hispanics than the 1989 class, a low number considering the vast increases in the Hispanic population of Texas. Further, the 2004 Proposal demonstrated that the percentage of diverse classrooms had declined since 1996.¹⁶² The decrease in classroom diversity will only continue if additional minority representation is not achieved, as the University plans to increase its number of course offerings in future years. Finally, whatever levels of minority enrollment sufficed more than a decade ago may no longer constitute critical mass today, given the social changes Texas has undergone during the intervening years. Appellants’ proposed baselines are insufficient reason to doubt UT’s considered, good faith conclusion that “the University still has not reached a critical mass at the classroom level.”¹⁶³

Grutter pointedly refused to tie the concept of “critical mass” to any fixed number. The Grutter Court approved of the University of Michigan Law School’s goal of attaining critical mass even though the school had specifically abjured any numerical target.¹⁶⁴ The Court recounted how school officials had described “critical mass” only through abstract concepts such as “meaningful numbers,” “meaningful representation,” and “a number that encourages underrepresented minority students to participate in the classroom and not feel isolated.”¹⁶⁵ The type of broad diversity Grutter approved does not lend itself to any fixed numerical guideposts.

None of this is to say that Grutter left “critical mass” without objective meaning. Rather, the legally cognizable interest-attaining a critical mass of underrepresented minority students — “is defined by reference to the educational benefits that diversity is designed to produce.”¹⁶⁶ If a plaintiff produces evidence that calls into question a university’s good faith pursuit of those educational benefits, its race-conscious admissions policies may be found unconstitutional. We are not persuaded, however, that any of the benchmarks suggested by Appellants succeed at calling that judgment into question.

B

As we have observed, benchmarks aside, UT’s claim that it has not yet achieved critical mass is less convincing when viewed against the backdrop of the Top Ten Percent Law, which had already driven aggregate minority enrollment up to more than one-fifth of the University’s incoming freshman class before less subtle race-conscious admissions were reintroduced.

The chief difficulty with looking to aggregate minority enrollment is that it lumps together distinct minority groups from different backgrounds who may bring various unique contributions to the University environment. African-American and Hispanic students, for example, are not properly interchangeable for purposes of determining critical mass, and a university must be sensitive to important distinctions within these broad groups. In Parents Involved, the Supreme Court specifically faulted two school districts for employing “only a limited notion of diversity” that lumped together very different racial groups.¹⁶⁷ One school district classified students exclusively as “white” or “nonwhite”; another labeled them as “black” or “other.”¹⁶⁸ This “binary conception of race” runs headlong into the central teaching of Grutter and other precedents which instruct that a university must give serious and flexible consideration to all aspects of diversity.¹⁶⁹

On this record, we must conclude that the University has acted with appropriate sensitivity to these distinctions. Although the aggregate number of underrepresented minorities may be large, the enrollment statistics for individual groups when UT decided to reintroduce race as a factor in admissions decisions does not indicate critical mass was achieved. Further, we recognize that some year-to-year fluctuation in enrollment numbers is inevitable, so statistics from any single year lack probative force; the University needs to maintain critical mass in years when yield is low just as it does when yield is high.

It is also apparent that UT has given appropriate consideration to whether aggregate minority enrollment is translating into adequate diversity in the classroom. Through two separate studies, the 200k Proposal reached a serious and good faith determination that the aggregate number overstates the University’s true level of diverse interaction. UT sought to obtain the full educational benefits of diversity as approved in Grutter and properly concluded that race-conscious admissions measures would help accomplish its goals.

C

Appellants argue that even if UT had not yet achieved critical mass under race-neutral policies, it had come close enough that the reintroduction of race-conscious measures was unwarranted. Pointing to the Supreme Court’s recent decision in Parents Involved, they argue that the University’s use of race is unnecessary, and therefore not narrowly tailored, because it has only a “minimal effect.” The district court thought this was an attempt “to force UT into an impossible catch-22: on the one hand, it is well-established that to be narrowly tailored the means ‘must be specifically and narrowly framed to accomplish’ the compelling interest, but on the other hand, according to [Appellants], the ‘narrowly tailored’ plan must have more than a minimal effect.”¹⁷⁰

Parents Involved does not support the cost-benefit analysis that Appellants seek to invoke. Rather, Parents Involved was primarily a critique of the school districts’ “extreme approach” that used binary racial categories to classify schoolchildren.¹⁷¹ The Court referred to the “minimal effect” sought by this policy as evidence that other, more narrowly tailored means would be effective to serve the school districts’ interests.¹⁷² The Court did not hold that a Grutter-like system would be impermissible even after race-neutral alternatives have been exhausted because the gains are small. To the contrary, Justice Kennedy — -who provided the fifth vote in Parents Involved — wrote separately to clarify that “a more nuanced, individual evaluation .... informed by Grutter” would be permissible, even for the small gains sought by the school districts.¹⁷³

VIII. CONCLUSION

Mindful of the time frame of this case, we cannot say that under the circumstances before us UT breached its obligation to undertake a “serious, good faith consideration” before resorting to race-conscious measures; yet we speak with caution. In this dynamic environment, our conclusions should not be taken to mean that UT is immune from its obligation to recalibrate its dual systems of admissions as needed, and we cannot bless the university’s race-conscious admissions program in perpetuity. Rather, much like judicial approval of a state’s redistricting of voter districts, it is good only until the next census count — it is more a process than a fixed structure that we review. The University’s formal and informal review processes will confront the stark fact that the Top Ten Percent Law, although soon to be restricted to 75% of the incoming class, increasingly places at risk the use of race in admissions. In 1998, those admitted under the Top Ten Percent Law accounted for 41% of the Texas residents in the freshman class, while in 2008, top ten percent students comprised 81% of enrolled Texan freshmen.¹⁷⁴ This trajectory evidences a risk of eroding the necessity of using race to achieve critical mass with accents that may, if persisted in, increasingly present as an effort to meet quantitative goals drawn from the demographics of race and a defiance of the now-demanded focus upon individuals when considering race.

A university may decide to pursue the goal of a diverse student body, and it may do so to the extent it ties that goal to the educational benefits that flow from diversity. The admissions procedures that UT adopted, modeled after the plan approved by the Supreme Court in Grutter, are narrowly tailored — procedures in some respects superior to the Grutter plan because the University does not keep a running tally of underrepresented minority representation during the admissions process. We are satisfied that the University’s decision to reintroduce race-conscious admissions was adequately supported by the “serious, good faith consideration” required by Grutter. Finally, it is neither our role nor purpose to dance from Gratters firm holding that diversity is an interest supporting compelling necessity. Nor are we inclined to do so. The role of black athletes in the southern universities forty years ago presents diversity’s potential better than can we, although at that early juncture, it was ability overcoming a barrier of race.¹⁷⁵

The judgment of the district court is AFFIRMED.

1

. 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003).

2

. Fisher v. Univ. of Tex. at Austin, 645 F.Supp.2d 587, 590 (W.D.Tex.2009) (citing U.S. Const, amend. XIV, § 1, and 42 U.S.C. §§ 1981, 1983, and 2000d et seq.).

3

. Like all Texas residents, Appellants could attend UT Austin as transfer students if they first enrolled in a participating UT system school and met the standards required by the Coordinated Admissions Program, discussed in greater detail below. Instead, Appellants permanently enrolled at other institutions.

4

. See DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam) (dismissing for lack of standing a suit that challenged a law school admissions policy because the plaintiff would "never again be required to run the gantlet of the Law School's admissions process”).

5

. Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 201-11, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995); City of L.A. v. Lyons, 461 U.S. 95, 105-10, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983).

6

. See Lyons, 461 U.S. at 105-07, 103 S.Ct. 1660.

7

. Cf. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 711 n. 1, 127 S.Ct. 2738, 168 L.Ed.2d 508 (relying on data from before the district court record closed, even after newer data had become available).

8

. Grutter, 539 U.S. at 343, 123 S.Ct. 2325.

9

. Fisher, 645 F.Supp.2d at 612-13; see also id. at 613 ("If the Plaintiffs are right, Grutter is wrong.” (internal quotation marks omitted)).

10

. In practice, the admissions systems of Michigan Law School and UT differ because UT’s automatic admission of the top ten percent of Texas high school seniors “largely dominates [its] admissions process.” Fisher, 645 F.Supp.2d at 595. We discuss the impact of the Top Ten Percent Law in greater detail below.

11

. 438 U.S. 265, 269, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Powell, J.).

12

. See Grutter, 539 U.S. at 325, 123 S.Ct. 2325 (citing Bakke, 438 U.S. at 315, 98 S.Ct. 2733 (opinion of Powell, J.)).

13

. Id. at 314, 123 S.Ct. 2325.

14

. Id. at 338, 123 S.Ct. 2325 (brackets and internal quotation marks omitted).

15

. Id. at 316, 123 S.Ct. 2325 (internal quotation marks omitted).

16

. Id. at 325, 123 S.Ct. 2325; see id. at 329-30, 123 S.Ct. 2325.

17

. Id. at 380, 123 S.Ct. 2325 (Rehnquist, C.J., dissenting).

18

. Id. at 329-30, 123 S.Ct. 2325 (opinion of the Court).

19

. Id. at 330, 123 S.Ct. 2325 (internal quotation marks omitted).

20

. 438 U.S. at 312, 98 S.Ct. 2733 (opinion of Powell, J.) (internal quotation marks omitted).

21

. Id. at 314, 123 S.Ct. 2325.

22

. Grutter, 539 U.S. at 330, 123 S.Ct. 2325 (internal quotation marks omitted).

23

. Id. (internal quotation marks omitted).

24

. Id. (internal quotation marks omitted).

25

. Id.

26

. Id. (internal quotation marks and brackets omitted).

27

. Id. at 332, 123 S.Ct. 2325.

28

. Id.

29

. Id. at 332-33, 123 S.Ct. 2325. The Court further explained:

[Ejducation [is] pivotal to sustaining our political and cultural heritage with a fundamental role in maintaining the fabric of society .... [T]he diffusion of knowledge and opportunity through public institutions of higher education must be accessible to all individuals regardless of race or ethnicity. The United States, as amicus curiae, affirms that "[e]nsuring that public institutions are open and available to all segments of American society, including people of all races and ethnicities, represents a paramount government objective.” And, "[n]o-where is the importance of such openness more acute than in the context of higher education.”

Id. at 331-32, 123 S.Ct. 2325 (final two alterations in original; citations and some internal quotation marks omitted).

30

. Id. at 332, 123 S.Ct. 2325.

31

. Id. at 337, 123 S.Ct. 2325.

32

. Id. (quoting Bakke, 438 U.S. at 317, 98 S.Ct. 2733 (opinion of Powell, J.)).

33

. Parents Involved, 551 U.S. at 722, 127 S.Ct. 2738; see also Grutter, 539 U.S. at 337, 123 S.Ct. 2325 (“The importance of this individualized consideration in the context of a race-conscious admissions program is paramount.”).

34

. Grutter, 539 U.S. at 338, 123 S.Ct. 2325.

35

. Id. at 334, 123 S.Ct. 2325 (citing Bakke, 438 U.S. at 315-16, 98 S.Ct. 2733 (opinion of Powell, J.)).

36

. Id. at 322, 123 S.Ct. 2325; see Bakke, 438 U.S. at 289, 98 S.Ct. 2733 (opinion of Powell, J.).

37

. Gratz v. Bollinger, 539 U.S. 244, 271-72, 123 S.Ct. 2411, 156 L.Ed.2d 257 (2003).

38

. Id.

39

. Grutter, 539 U.S. at 342, 123 S.Ct. 2325.

40

. Id., at 339, 123 S.Ct. 2325 (quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280 n. 6, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986)).

41

. Id. at 343, 123 S.Ct. 2325.

42

. Fisher, 645 F.Supp.2d at 590.

43

. Id. at 596.

44

. Marta Tienda et al., Closing the Gap?: Admissions & Enrollment at the Texas Public Flagships Before and After Affirmative Action 52 tbl.5 (Tex. Higher Educ. Opportunity Project Working Paper), available at http://theop. princeton.edu/workingpapers.html. Unlike the current Top Ten Percent Law, UT’s earlier policies did not mandate the admission of all top ten percent students. Thus, even though a top ranking at a predominantly minority high school would contribute to a higher AI score, the AI alone could not effectively serve as a proxy for race because, on average, minorities received lower standardized test scores.

45

. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Four Justices would have held that universities have broad authority to consider race in admissions in order to “remedy disadvantage cast on minorities by past racial prejudice.” Id. at 325, 98 S.Ct. 2733 (joint opinion of Brennan, White, Marshall, and Blackmun, JJ.). Four other Justices would have held that Title VI of the Civil Rights Act of 1964 bars federally funded universities from making any admissions decisions on the basis of race. Id. at 417-18, 98 S.Ct. 2733 (opinion of Stevens, J., joined by Burger, C.J., and Stewart and Rehnquist, JJ.). Justice Powell cast the decisive vote in a separate opinion — not joined in full by any other Justice — that invalidated the racial set-aside in the admissions program then before the Court, but reasoned that it would be constitutional for a university to consider race as one facet of diversity in a flexible review that treated each applicant as an individual. Id. at 316-19, 98 S.Ct. 2733 (opinion of Powell, J.). Because none of these positions carried the support of a majority of the Court, it was not completely clear which (if any) of these rationales was controlling. See Grutter, 539 , 123 S.Ct. 2325 (2003) (recounting this history and the subsequent confusion among lower courts).

46

. Records do reflect that at UT’s law school during this time, minority and nonminority applicants were reviewed by separate admissions committees and were subject to different grade and test-score cutoffs. See Hopwood v. Texas, 78 F.3d 932, 935-38 (5th Cir.1996).

47

. Univ. of Tex. at Austin, 1998-1999 Statistical Handbook. Minority enrollment was fairly consistent from 1989 until 1993, with some slight decreases in 1994 and 1995. UT publishes its Statistical Handbook annually, and these handbooks are cited throughout the district court record. See Univ. of Tex. at Austin Office of Admissions, Diversity Levels of Undergraduate Classes at The University of Texas at Austin 1996-2002 (2003) (Dist. Ct. Dkt. No. 96, Tab 8, Ex. B), at 5, 6; Univ. of Tex. at Austin, Proposal to Consider Race and Ethnicity in Admissions (2004) (Dist. Ct. Dkt. No. 96, Tab 11, Ex. A), at 30; Univ. of Tex. at Austin Office of Admissions, 2008 Top Ten Percent Report (Dist. Ct. Dkt. No. 94, Ex. 9), at 4 [hereinafter 2008 Top Ten Percent Report]. Handbooks dating back to 1998 are available online at http://www.utexas.edu/academic/ ima/stat_handbook/.

48

. 78 F.3d 932 (1996).

49

. Id. at 944-48.

50

. See Tex. Att’y Gen. Letter Op. No. 97-001 (1997).

51

. Fisher, 645 F.Supp.2d at 591.

52

. Id. at 591-92.

53

. Id. at 592.

54

. Diversity Levels of Undergraduate Classes at The University of Texas at Austin 1996-2002 (2003) (Dist. Ct. Dkt. No. 96, Tab 8, Ex. B), at 6.

55

. 1998-1999 Statistical Handbook.

56

. Tex. Educ.Code § 51.803 (1997). The Top Ten Percent Law was amended, during the course of this litigation, to cap the number of students guaranteed admission at UT Austin to 75% of the seats available to Texas residents. Id. § 51.803(a~l) (2010). The cap is effective starting with admissions to the Fall 2011 entering class and is currently scheduled to end with admissions to the Fall 2015 entering class.

57

. 2008 Top Ten Percent Report at 6 tbl. 1.

58

. Id. at 8; see also Fisher, 645 F.Supp.2d at 593 (reporting statistics for total admitted applicants, both Texas and non-Texas residents).

59

. Tienda et al., supra note 44, at 52 tbl.5.

60

. 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003).

61

. Minutes of the Board of Regents of the University of Texas at Austin, Meeting No. 969, Aug. 6-7, 2003 (Dist. Ct. Dkt. No. 94, Ex. 19, Tab A), at 4.

62

. Fisher, 645 F.Supp.2d at 593. Classes with only one student of a given minority were thought to be just as troubling as classes with zero students of that minority because a single minority student is apt to feel isolated or like a spokesperson for his or her race. Id. at 602-03; see also Grutter, 539 U.S. at 319, 123 S.Ct. 2325.

63

. Lavergne Aff. (Dist. Ct. Dkt. No. 102, Tab B) ¶¶ 4-5.

64

. Walker Aff. (Dist. Ct. Dkt. No. 96, Tab 11) ¶ 12.

65

. Dist. Ct. Dkt. No. 96, Tab 11, Ex. A [hereinafter 2004 Proposal].

66

. Id. at 1 (internal quotation marks omitted); see also Fisher, 645 F.Supp.2d at 603.

67

. 2004 Proposal at 23 (quoted in Fisher, 645 F.Supp.2d at 602).

68

. Id. at 24 (quoted in Fisher, 645 F.Supp.2d at 602).

69

. Id. (quoted in Fisher, 645 F.Supp.2d at 602).

70

. Fisher, 645 F.Supp.2d at 594.

71

. Id. This particular ranking is somewhat limited in its significance, however, as the results are based on raw tabulations of the number of degrees conferred upon minority students. Large schools, like UT, are more likely to be ranked higher simply because they graduate a greater number of students (both minorities and non-minorities). See Victor M.H. Borden, Top 100 Undergraduate Degree Producers: Interpreting the Data, Diverse Issues in Higher Educ., June 12, 2008.

72

. Statistical Handbook 2004-2005, at 22 tbl. S13A; Statistical Handbook 2009-2010, at 16 tbl.S12 (data for fall enrollment only). For fall and summer numbers combined, see 2008 Top Ten Percent Report at 6.

73

. Admission decisions for domestic non-Texas residents and international applicants are made solely on the basis of their Academic and Personal Achievement Indices.

74

. 2008 Top Ten Percent Report at 8 tbl.2, 9 tbl.2b. Table 2 shows 8,984 top ten percent students were admitted in 2008. The UT Associate Director of Admissions reported that 10,200 admissions slots are available for Texas residents, leaving 1,216 slots for non-top ten percent students. Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12.

75

. Id. at 7 tbl.la. In 1998, out of a class that included 6,110 Texas residents, only 2,513 enrolled freshmen were admitted under the Top Ten Percent Law.

76

. The district court found that, on "relatively rare” occasions, a holistic review of the entire application may result in the University admitting an applicant to the fall class even though his or her AI or PAI scores fall just shy of the official cutoff. See Fisher, 645 F.Supp.2d at 599.

77

. Fisher, 645 F.Supp.2d at 596. The precise formulas used to calculate an applicant’s Academic Index are derived by regression analysis and vary by intended major. For instance, the formula for prospective engineering majors gives greater weight to math scores, whereas the formula for prospective liberal arts majors gives somewhat greater weight to verbal scores. See 2004 Proposal at 27 & n.5. The differences in these formulas are immaterial to the present case.

78

. In other words, no applicant is denied admission based purely on AI score without having her file reviewed by at least one admissions reader and her individual circumstances considered.

79

. Fisher, 645 F.Supp.2d at 597.

80

. PAI = [ (personal achievement score * 4) + (average essay score * 3)] / 7. Id. at 597 n. 7.

81

. Id. at 591-92, 597.

82

. Id. at 597; see Univ. of Tex. at Austin Office of Admissions, Inter-Rater Reliability of Holistic Measures Used in the Freshman Admission Process of the University of Texas at Austin (Feb. 22, 2005) (Dist.Ct.Dkt. No. 94, Ex. 10).

83

. Fisher, 645 F.Supp.2d at 597.

84

. Walker Aff. (Dist. Ct. Dkt. No. 96, Tab 11) ¶ 15.

85

. Fisher, 645 F.Supp.2d at 597.

86

. See id. at 608.

87

. In addition, because of special portfolio, audition, and other requirements, the Top Ten Percent Law does not apply to the School of Architecture, the School of Fine Arts, and certain honors programs.

88

. Thus, for example, the School of Business granted automatic admission only to those students who graduated in the top 4% of their high school class and selected a business major as their first choice. Ishop Dep. (Dist. Cl. Dkt. No. 96, Tab 2) at 32.

89

. Fisher, 645 F.Supp.2d at 598, 609.

90

. Id. at 597.

91

. Id. at 597-98.

92

. Id. at 603 (quoting Grutter, 539 U.S. at 319-20, 123 S.Ct. 2325). More specifically, as described in the 2004 Proposal, one purpose of UX's race-conscious policy is " 'to provide an educational setting that fosters cross-racial understanding, provides enlightened discussion and learning, and prepares students to function in an increasingly diverse workforce and society.' " 2004 Proposal at 25 (quoted in Fisher, 645 F.Supp.2d at 603). Another is to produce " 'future educational, cultural, business, and sociopolitical leaders.' " Id. at 24 (quoted in Fisher, 645 F.Supp.2d at 602). And because Texas’s population is uniquely diverse — "[i]n the near future, Texas will have no majority race” — " ‘tomorrow's leaders must not only be drawn from a diverse population^] but must also be able to lead a multicultural workforce and to communicate policy to a diverse electorate.’ ” Id. at 24 (quoted in Fisher, 645 F.Supp.2d at 602). As the state’s flagship public institution, UT determined that it " 'has a compelling educational interest to produce graduates who are capable of fulfilling the future leadership needs of Texas.' ” Id. at 24 (quoted in Fisher, 645 F.Supp.2d at 602).

93

. Fisher, 645 F.Supp.2d at 603 (quoting Grutter, 539 U.S. at 333, 123 S.Ct. 2325).

94

. Grutter, 539 U.S. at 328, 123 S.Ct. 2325.

95

. Id. at 326, 328, 123 S.Ct. 2325 (citing Adarand, 515 U.S. at 227, 115 S.Ct. 2097); see also Parents Involved, 551 U.S. at 720, 127 S.Ct. 2738.

96

. Grutter, 539 U.S. at 327, 123 S.Ct. 2325; see also id. at 328, 123 S.Ct. 2325 ("The Law School’s educational judgment ... is one to which we defer .... Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.”).

97

. Id. at 328, 123 S.Ct. 2325.

98

. Id. at 329, 123 S.Ct. 2325.

99

. Bakke, 438 U.S. at 312, 98 S.Ct. 2733 (opinion of Powell, L).

100

. Grutter, 539 U.S. at 328, 123 S.Ct. 2325.

101

. Id. at 327, 123 S.Ct. 2325.

102

. Id. at 329, 123 S.Ct. 2325 ("[G]ood faith on the part of a university is presumed absent a showing to the contrary.” (internal quotation marks omitted) (quoting Bakke, 438 U.S. at 318-19, 98 S.Ct. 2733 (opinion of Powell, J.))).

103

. Id. at 333-34.

104

. Ricci v. DeStefano, - U.S. -, 129 S.Ct. 2658, 2675, 174 L.Ed.2d 490 (2009) (some internal quotation marks omitted) (quoting Richmond v. J.A Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), in turn quoting Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (plurality)).

105

. Id. at 2664.

106

. Id.; see 42 U.S.C. § 2000e-2(k)(l)(A)(i) (codifying Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971)).

107

. See 42 U.S.C. § 2000e-2(a)(l).

108

. Ricci, 129 S.Ct. at 2664.

109

. Id. at 2676.

110

. Id.

111

. Id. at 2676. We note that these statutory constraints are not present in the context of university admissions programs.

112

. 488 U.S. at 500, 109 S.Ct. 706.

113

. 476 U.S. at 277, 106 S.Ct. 1842.

114

. Id. at 277-78, 106 S.Ct. 1842.

115

. Croson, 488 U.S. at 499, 109 S.Ct. 706.

116

. 551 U.S. 701, 127 S.Ct. 2738, 168 L.Ed.2d 508 (2007).

117

. See id. at 735, 127 S.Ct. 2738 (quoting Grutter, 539 U.S. at 339, 123 S.Ct. 2325).

118

. Grutter, 539 U.S. at 329-30, 123 S.Ct. 2325 (quoting Bakke, 438 U.S. at 308, 98 S.Ct. 2733 (opinion of Powell, J.)).

119

. Id. at 330, 123 S.Ct. 2325 (quoting Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992)).

120

. Parents Involved, 551 U.S. at 723, 127 S.Ct. 2738.

121

. Appellants argue that UT's "head-in-the-sand approach” — refusing to identify any specific number, percentage, or range of minority students that would constitute critical mass — is an improper attempt "to short cir-' cuit any inquiry into whether it can justify its policy with evidence by arguing that critical mass is a purely subjective concept that cannot be evaluated in numerical terms.” Appellants claim that until UT identifies some "finishing line,” the use of race has "no logical stopping point” and is therefore "too amorphous a basis for imposing a racially classified remedy.” But in both Bakke and Grutter, the controlling opinions expressly approved of policies seeking only some undefined "meaningful number” of minorities, see Grutter, 539 U.S. at 335, 123 S.Ct. 2325; Bakke, 438 U.S. at 323, 98 S.Ct. 2733 (opinion of Powell, J.), and the Court has firmly "rejected” the argument “that diversity as a basis for employing racial preferences is simply too open-ended, ill-defined, and indefinite” a ground for race-conscious university admissions policies, Gratz, 539 U.S. at 268, 123 S.Ct. 2411 (internal quotation marks omitted). On the contrary, if UT were to identify some numerical target for minority enrollment, that would likely render the policy unconstitutional under Grutter.

122

. Grutter, 539 U.S. at 336, 123 S.Ct. 2325 (citation, internal quotation marks, and brackets omitted).

123

. Id. at 335, 123 S.Ct. 2325 (quoting Sheet Metal Workers v. EEOC, 478 U.S. 421, 495, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)).

124

. Cf. Grutter, 539 U.S. at 391-92, 123 S.Ct. 2325 (Kennedy, J., dissenting).

125

. Fisher, 645 F.Supp.2d at 607 n. 11.

126

. Id. at 606.

127

. Grutter, 539 U.S. at 337, 123 S.Ct. 2325 (quotingBakke, 438 U.S. at 317, 98 S.Ct. 2733 (opinion of Powell, J.)).

128

. Id. at 338, 123 S.Ct. 2325; see Fisher, 645 F.Supp.2d at 597.

129

. Grutter, 539 U.S. at 336, 123 S.Ct. 2325 (quoting Bakke, 438 U.S. at 323, 98 S.Ct. 2733 (opinion of Powell, J.)).

130

. Id. at 333, 123 S.Cl. 2325.

131

. Id. at 338, 123 S.Ct. 2325.

132

. 2004 Proposal at 23 (quoted in Fisher, 645 F.Supp.2d at 602).

133

. Id. at 24-25 (quoted in Fisher, 645 F.Supp.2d at 602).

134

. Id. at 14.

135

. See, e.g., Mark C. Long et al., Policy Transparency and College Enrollment: Did the Texas Top Ten Percent Law Broaden Access to the Public Flagships?, 62.1 Annals Am. Acad. Pol. & Soc. Sci. 82 (2010); Kim M. Lloyd et al., Minority College Aspirations, Expectations and Applications Under the Texas Top 10% Law, 86 Soc. Forces 1105 (2008).

136

. Grutter, 539 U.S. at 339, 123 S.Ct. 2325.

137

. See id. at 339-40, 123 S.Ct. 2325.

138

. Tex. Educ.Code § 51.803 (1997). The precise impact UT’s other race-neutral alternatives (such as scholarship and outreach programs) have had on minority enrollment is not clear, but their effect would not appear to be great enough to bear on the constitutionality of the University’s race-conscious admissions policy.

139

. Fisher, 645 F.Supp.2d at 594; see also Marta Tienda & Teresa A. Sullivan, The Promise and Peril of the Texas Uniform Admissions Law 164-65 & tbl.l, in The Next Twenty-Five Years? Affirmative Action and Higher Education in the United States and South Africa 155 (David L. Featherman et al. eds., 2010).

140

. See Grutter, 539 U.S. at 339, 123 S.Ct. 2325 (quoting Wygant, 476 U.S. at 280 n. 6, 106 S.Ct. 1842 (1986)).

141

. The United States has since filed an amicus brief in the present case, urging us to uphold UT’s current admissions program.

142

. Grutter, 539 U.S. at 340, 123 S.Ct. 2325 (internal citation omitted).

143

. Id.

144

. 2008 Top Ten Report at 8 tbl.2; Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12.

145

. In reality, the Grutter plan operates on even fewer applications, as many non-top ten percent students are admitted based purely on their class rank and standardized test scores, without any reference to their PAI, leaving only 841 seats in 2008 that were evaluated under the Grutter plan. See Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12.

146

. 2008 Top Ten Report at 7 tbl.la; see supra note 74 and accompanying text. We also note that since it began, the Top Ten Percent Law has had an increasing impact on admissions decisions. In 1998, top ten percent candidates comprised just 41% of Texans in the freshman class. In 2004, 66% of Texan freshmen were top ten percent students, and in 2008, top ten percent students made up 81% of the Texas freshmen seats. While the legislative 75% cap on top ten percent enrollment may help alleviate some of the concerns with this plan, the fact remains that the Top Ten Percent Law operates today very differently than it did when first implemented.

147

. See Univ. of Tex. at Austin Office of Info. Mgmt., Statistical Handbook 2009-2010, at 32 tbl.S27 (2010) (reporting UT enrollment by college, grade level, ethnicity, and gender); Lisa Dickson, Major Choices: Race and Gender Differences in College Major Choice, 627 Annals Am. Acad. Pol. & Soc. Set. 108, 108 (2010) (analyzing UT data and finding that "significant differences by gender, race, and ethnicity persist in initial college major choice even after controlling for the [SAT] score of the student and the high school class rank of the student”).

148

. Statistical Handbook 2009-2010, at 31-32 tbI.S27.

149

. For example, instead of admitting a minority top ten percent student from a low-performing school, UT might admit a minority student with an interest in business who is just as academically qualified (and perhaps more so), but falls outside the top ten percent of his high school class because he attends a more competitive high school. This example also demonstrates how the Top Ten Percent Law hurts academic selectivity: UT must admit a top ten percent student from a low-performing high school before admitting a more qualified minority student who ranks just below the top ten percent at a highly competitive high school. This effect, in turn, further widens the "credentials gap” between minority and non-minority students at the University, which risks driving away matriculating minority students from difficult majors like business or the sciences.

150

. The Top Ten Percent Law may produce diversity beyond varying hometowns, including differences in socioeconomic status and rural/urban/suburban upbringing. However, under the Top Ten Percent Law, the University does not have the opportunity to select for a wide range of diverse experiences (such as travel abroad, extra-curricular involvement, or work experience), so the Top Ten Percent Law bluntly operates as an attempt to create diversity through reliance on perceived group characteristics and segregated communities.

151

. 2004 Proposal at 25 & tbl. 8.

152

. Gratz, 539 U.S. at 304 n. 10, 123 S.Ct. 2411 (Ginsburg, J., dissenting).

153

. In an effort to ameliorate this effect, a special provision of the Top Ten Percent Law provides that "a high school magnet program, academy, or other special program" may be considered "an independent high school with its own graduating class separate from the graduating class of other students attending the high school,” effectively allowing the school to certify two separate groups of Top Ten Percent Law students. See Tex. Educ. Code § 51.8045.

154

. See 2008 Top Ten Percent Report at 12 tbl.6 (showing the average SAT range for top ten percent and non-top ten percent students); id. at 13-15 tbls.6a-6d (displaying SAT ranges based on race and top ten percent status).

155

. To reach its target class size, UT offers fall admission to 10,200 Texas applicants. Ishop Aff. (Dist. Ct. Dkt. No. 96, Tab 7) ¶ 12. For the class entering Fall 2008, after UT offered admission to top ten percent students, there were 1,216 admissions spots remaining. (The district court noted there were 841 places, but that number included the admission of so-called "Group A” applicants who have extremely high AI scores but are not in the top ten percent of their class. See id.) There were a total of 27,712 applicants for the fall class of 2008. Statistical Handbook 2009-2010, at 25 tbl.S21. Neither the record nor any public information released by the University disclose what portion of that total applicant pool were Texas residents, but if we assume that proportion of applicants from Texas matches the 90% of admissions slots reserved for Texas applicants, one can estimate that there were 24,940 Texas applicants. Subtracting the 8,984 students admitted under the Top Ten Percent Law yields an estimate of 15,956 applicants for 1,216 seats, or an acceptance rate of approximately 7.6%. By comparison, the overall acceptance rate at Ivy League schools for the class entering Fall 2008 ranged from 8% (Harvard) to 21% (Cornell). See The Rankings: Best National Universities, U.S. News & World Rep., Sept. 2009, at 84-85.

156

. Appellants here do not challenge the constitutionality of the Top Ten Percent Law. In fact, they endorse it as a race-neutral alternalive to the Grutter plan. A court considering the constitutionality of the Law would examine whether Texas enacted the Law (and corresponding admissions policies) because of its effects on identifiable racial groups or in spite of those effects. See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979); cf. Brief of Social Scientists Glenn C. Loury et al. as Amici Curiae in Support of Respondents, Grutter v. Bollinger, 539 U.S. 306, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), available at 2003 WL 402129, at *2, *9-*10 (noting that "it is not clear that [percentage] plans are actually race-neutral" and that some amici counsel in Grutter "have signaled interest in moving on after this case to challenge these aspects of the Texas program”).

157

. Fisher, 645 F.Supp.2d at 593.

158

. Grutter, 539 U.S. at 384, 123 S.Ct. 2325 tbls.1-2 (Rehnquist, C.J., dissenting).

159

. 2008 Top Ten Percent Report at 6 tbl.l.

160

. 518 U.S. 515, 523, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (internal quotation marks omitted).

161

. See, e.g., 2004 Proposal at 24 ("[RJestoration to pre-Hopwood levels is not sufficient.”).

162

. Id. at 25 & tbl.8.

163

. Id. at 24 (quoted in Fisher, 645 F.Supp.2d at 602).

164

. Grutter, 539 U.S. at 318, 123 S.Ct. 2325.

165

. Id.

166

. Id. at 330, 123 S.Ct. 2325.

167

. Parents Involved, 551 U.S. at 723, 127 S.Ct. 2738.

168

. Id. at 712, 716, 127 S.Ct. 2738.

169

. Id. at 735, 127 S.Ct. 2738. Even current labels of "Hispanic,” "African-American,” or "Asian” may lump very different ethnic groups into a single category.

170

. Fisher, 645 F.Supp.2d at 609.

171

. Parents Involved, 551 U.S. at 735, 127 S.Ct 2738.

172

. Id. at 733, 127 S.Ct. 2738.

173

. Id. at 790, 127 S.Ct. 2738 (opinion of Kennedy, J.).

174

. 2008 Top Ten Percent Report at 7 tbl.la.

175

. See David K. Wiggins & Patrick B. Miller, The Unlevel Playing Field: A Documentary History of the African American Experience in Sport 443 (2003) (quoting Roy Wilkins, who wrote in the 1930s that black athletes “carry more interracial education than all the erudite philosophy ever written on race” (internal quotation marks omitted)).

1

. See Grutter, 539 U.S. at 328, 123 S.Ct. 2325 (recognizing racial diversity "in the context of higher education" as compelling); Freeman v. Pitts, 503 U.S. 467, 494, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992) (remedying the effects of past intentional discrimination a compelling governmental interest); Korematsu v. United States, 323 U.S. 214, 216, 65 S.Ct. 193, 89 L.Ed. 194 (1944) ("[P]ressing public necessity may sometimes justify the existence of [racial discrimination]; racial antagonism never can.”). In Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980), the Court upheld a federal law that set aside public works monies for minority-owned businesses. Although Fullilove has not been expressly overruled, it is unlikely that its holding survives the Court’s later Equal Protection decisions. See Erwin Chemerinsky, Constitutional Law: Principles and Policies § 9.3.5, at 738, 742-43 (3d ed.2006). Korematsu s authority is likewise suspect.