Fisher v. University of Texas at Austin

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Abigail Fisher brought this action against the University of Texas at Austin,1 alleging that the University’s race-conscious admissions program violated the Fourteenth Amendment. The district court granted summary judgment to UT Austin and we affirmed. The Supreme Court vacated and remanded, holding that this Court and the district court reviewed UT Austin’s means to the end of a diverse student body with undue deference; that we must give a more exacting scrutiny to UT Austin’s efforts to achieve diversity. With the benefit of additional briefing, oral argument, and the ordered exacting scrutiny, we affirm the district court’s grant of summary judgment.

I

A

Fisher applied to UT Austin for admission to the entering class of fall 2008.2 Although a Texas resident, she did not graduate in the top ten percent of her class. She therefore did not qualify for automatic admission under the Top Ten Percent Plan, which that year took 81% of the seats available for Texas residents.3 Instead, she was considered under the holistic review program,4 which looks past class rank to evaluate each applicant as an individual based on his or her achievements and experiences, and so became one of 17,131 applicants5 for the remaining 1,216 seats6 for Texas residents.

*638UT Austin denied Fisher admission. Kedra B. Ishop, the Associate Director of Admissions at the time of Fisher’s application,7 explained that “[g]iven the lack of space available in the fall freshman class due to the Top 10% Plan, ... based on [her] high school class rank and test scores,” Fisher could not “have gained admission through the fall review process.”8 As Ishop explained, any applicant who was not offered admission either through the Top Ten Percent Law or through an exceptionally high Academic Index (“AI”) score is evaluated through the holistic review process.9 The AI is calculated based on an applicant’s standardized test scores, class rank, and high school coursework.10 Holistic review considers applicants’ AI scores and Personal Achievement Index (“PAI”) scores. The PAI is calculated from (i) the weighted average score received for each of two required essays and (ii) a personal achievement score based on a holistic review of the entire application, with slightly more weight being placed on the latter.11 In calculating the personal achievement score, the staff member conducts a holistic review of the contents of the applicant’s entire file, including demonstrated leadership qualities, extracurricular activities, honors and awards, essays, work experience, community service, and special circumstances, such as the applicant’s socioeconomic status, family composition, special family responsibilities, the socioeconomic status of the applicant’s high school, and race.12 No numerical value is ever assigned to any of the components of personal achievement scores, and because race is a factor considered in the unique context of each applicant’s entire experience, it may be a beneficial factor for a minority or a non-minority student.13

To admit applicants through this holistic review, the admissions office generates an initial AI/PAI matrix for each academic program, wherein applicants are placed into groups that share the same combination of AI and PAI scores.14 School liaisons then draw stair-step lines along this matrix, selecting groups of students on the basis of their combined AI and PAI scores. This process is repeated until each program admits a sufficient number of students.

Fisher’s AI scores were too low for admission to her preferred academic programs at UT Austin; Fisher had a Liberal *639Arts AI of 3.1 and a Business AI of 3.1.15 And, because nearly all the seats in the undeclared major program in Liberal Arts were filled with Top Ten Percent students, all holistic review applicants “were only eligible for Summer Freshman Class or CAP [Coordinated Admissions Program] admission, unless their AI exceeded 3.5.”16 Accordingly, even if she had received a perfect PAI score of 6, she could not have received an offer of admission to the Fall 2008 freshman class.17 If she had been a minority the result would have been the same.

B

This reality together with factual developments since summary judgment call into question whether Fisher has standing.18 UT Austin argues that Fisher lacks standing because (i) she graduated from another university in May 2012, thus rendering her claims for injunctive and declaratory relief moot,19 and (ii) there is no causal relationship between any use of race in the decision to deny Fisher admission and the $100 application fee—a nonrefundable expense faced by all applicants that puts at issue whether Fisher suffered monetary injury.20

Two competing and axiomatic principles govern the resolution of this question. First, jurisdiction must exist at every stage of litigation. A litigant “generally may raise a court’s lack of subject-matter jurisdiction at any time in the same civil action, even initially at the highest appellate instance.”21 Even if “defendants failed to challenge jurisdiction at a prior stage of the litigation, they are not prohibited from raising it later.”22 Indeed, the “independent establishment of subject-matter jurisdiction is so important that [even] a party ostensibly invoking federal jurisdiction may later challenge it as a means of avoiding adverse results on the merits.”23

Second, the “mandate rule,” a corollary of the law of the case doctrine, “compels compliance on remand with the dictates of a superior court and forecloses *640relitigation of issues expressly or impliedly decided by the appellate court.”24 The Supreme Court, like all Article III courts, had its own independent obligation to confirm jurisdiction, and where the lower federal court “lack[ed] jurisdiction, [the Supreme Court has] jurisdiction on appeal, not of the merits, but merely for the purpose of correcting the error of the lower court in entertaining the suit.”25

UT Austin’s standing arguments carry force,26 but in our view the actions of the Supreme Court do not allow our reconsideration. The Supreme Court did not address the issue of standing, although it was squarely presented to it.27 Rather, it remanded the case for a decision on the merits, having reaffirmed Justice Powell’s opinion for the Court in Regents of the University of California v. Bakke28 as read by the Court in Grutter v. Bollinger.29 It affirmed all of this Court’s decision except its application of strict scrutiny. The parties have identified no changes in jurisdictional facts occurring since briefing in the Supreme Court. Fisher’s standing is limited to challenging the injury she alleges she suffered — the use of race in UT Austin’s admissions program for the entering freshman class of Fall 2008.

II

We turn to the question whether we can and should remand this case. The Supreme Court’s mandate frames its resolution, ordering that “[t]he judgment of the Court of Appeals is vacated, and the case remanded for further proceedings consistent with this opinion.” The mandate must be read against the backdrop of custom that accords courts of appeal discretion to remand to the district court on receipt of remands to it for proceedings consistent with the opinion — a customary discretion not displaced but characterized by nigh boiler plate variations in phrasing of instructions such as “on remand the Court of Appeals may ‘consider,’ ” or “for the Court of Appeals to consider in the first instance.”30

A

Fisher argues that the Supreme Court’s remanding language — “fairness to the litigants and the courts that heard the case requires that it be remanded so that the admissions process can be considered and judged under a correct analysis”31 — compels the conclusion that “fairness” must be achieved by having this Court, and not the district court, conduct the inquiry. Fisher relies on the Supreme Court’s statement *641that “the Court of Appeals must assess whether the University has offered sufficient evidence that its admissions program is narrowly tailored to obtain the educational benefits of diversity.”32 And Fisher argues that at summary judgment, all parties conceded that there were no genuine issues of material fact to be resolved and that the case should be decided on summary judgment.

UT Austin opposes this parsing of language, arguing that Fisher fails to credit (i) the entirety of the Supreme Court’s references which spoke, not just to the fairness of allowing this Court to correct its error, but also to the fairness to the district court, which first heard the case and was faulted for the same error as this Court; and, (ii) that the language used by the Supreme Court is the common language of remand orders and is often followed by a remand to the district court. UT Austin notes that in its remanding language, the Supreme Court cites Adarand Constructors, Inc. v. Pena,33 where the court of appeals remanded to the district court after the Supreme Court vacated the judgment of the court of appeals for failure to apply strict scrutiny. Finally, UT Austin argues that the remand language, at best, is ambiguous and, given the custom of the courts of appeals, should not be read to foreclose the clear discretion of this Court to remand absent specific, contrary instructions from the Supreme Court.

Given the customary practice of the courts of appeals and the less than clear language of the Supreme Court’s remand, we are not persuaded that the Supreme Court intended to foreclose our discretion to remand to the district court. A review of the Supreme Court’s language lends but little support to each side. Yet, this is telling. Had the Supreme Court intended to control the discretion of this Court as to whether the district court should first address an error that the Supreme Court found was made by both courts, there would have been no uncertainty in the remand language. The question whether we should remand remains.

B

There is no clear benefit to remanding this case to the district court. The suggestion, without more, that discovery may be necessary given the Supreme Court’s holding regarding proper scrutiny and deference adds nothing. Admittedly, this case differs from Grutter, in that Grutter went to trial. And evidence offered by live witnesses is far more likely to surface and resolve fact issues than summary judgment evidence crafted by advocates. But that too is far from certain. Indeed, UT Austin’s argument goes no further than “factual questions or disputes may arise on remand.”34 Notably, UT Austin does not argue that a trial will be necessary. Rather its principal target on remand is standing, with questions that continue to haunt, but are foreclosed by the Supreme Court’s implicit finding of standing, questions only it can now address.

We find that there are no new issues of fact that need be resolved, nor is there any identified need for additional discovery; that the record is sufficiently developed; and that the found error is common to both this Court and the district court. It follows that a remand would likely result in duplication of effort. We deny UT Aus*642tin’s motion for remand, and turn to the merits.

Ill

A

In remanding, the Supreme Court held that its decision in Grutter requires that “strict scrutiny must be applied to any admissions program using racial categories or classifications”;35 that “racial classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.”36 Bringing forward Justice Kennedy’s dissent in Grutter, the Supreme Court faulted the district court’s and this Court’s review of UT Austin’s means to achieve the permissible goal of diversity — whether UT Austin’s efforts were narrowly tailored to achieve the end of a diverse student body. Our charge is to give exacting scrutiny to these efforts.

The Supreme Court has made clear that “a university’s educational judgment that such diversity is essential to its educational mission is one to which we defer.”37 The “decision to pursue the educational benefits that flow from student body diversity that the University deems integral to its mission is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper under Grutter.”38 Accordingly, a court “should ensure that there is a reasoned, principled explanation for the academic decision.” 39

In both Fisher and Grutter, the Supreme Court endorsed Justice Powell’s conclusion that “attainment of a diverse student body ... is a constitutionally permissible goal for an institution of higher education;”40 that in contrast to “[r]e-dressing past discrimination, ... [t]he attainment of a diverse student body ... serves values beyond race alone, including enhanced classroom dialogue and the lessening of racial isolation and stereotypes”; 41 that the “academic mission of a university is a special concern of the First Amendment ... [and part] of the business of a university [is] to provide that atmosphere which is most conducive to speculation, experiment, and creation, and this in turn leads to the question of who may be admitted to study.”42 It signifies that this compelling interest in “securing diversity’s benefits ... is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students.” 43 Rather, “diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”44 Justice Powell found Harvard’s admissions program to be particu*643larly commendable.45 There an applicant’s race was but one form of diversity that would be weighed against qualities such as “exceptional personal talents, unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important.”46 Bakke envisions a rich pluralism for American institutions of higher education, one at odds with a one-size-fits-all conception of diversity, indexed to the ways in which a diverse student body contributes to a university’s distinct educational mission, not numerical measures.47

Diversity is a composite of the backgrounds, experiences, achievements, and hardships of students to which race only contributes. “[A] university is not permitted to define diversity as some specified percentage of a particular group merely because of its race or ethnic origin” because that “would amount to outright racial balancing, which is patently unconstitutional.” 48 Instead, Grutter approved the University of Michigan Law School’s goal of “attaining a critical mass of under-represented minority students,” and noted that such a goal “does not transform its program into a quota.”49

B

In language from which it has not retreated, the Supreme Court explained that the educational goal of diversity must be “defined by reference to the educational benefits that diversity is designed to produce.” 50 Recognizing that universities do more than download facts from professors to students, the Supreme Court recognized three distinct educational objectives served by diversity: (i) increased perspectives, meaning that diverse perspectives improve educational quality by making classroom discussion “livelier, more spirited, and simply more enlightening and interesting when the students have the greatest possible variety of backgrounds”;51 (ii) professionalism, meaning that “student body diversity ... better prepares [students] as professionals,” because the skills students need for the “increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints”;52 and, (iii) civic engagement, meaning that a diverse student body is necessary for fostering “[effective participation by members of all racial and ethnic groups in the civil life of our Nation[, which] is essential if the dream of one Nation, indivisible, is to be realized.”53 All this the Supreme Court reaffirmed, leaving for this Court a “further judicial determination that the admissions process meets strict scrutiny in its implementation”;54 that is, its means of achieving the goal of diversity are narrowly tailored.

A university “must prove that the means chosen by the University to attain diversity are narrowly tailored to *644that goal.”55 And a university “receives no deference” on this point because it is the courts that must ensure that the “means chosen to accomplish the [university’s] asserted purpose ... be specifically and narrowly framed to accomplish that purpose.”56 Although “a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes,” it remains a university’s burden to demonstrate and the court’s obligation to determine whether the “admissions processes ensure that each applicant is evaluated as an individual, and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”57

C

Narrow tailoring requires that the court “verify that it is ‘necessary’ for a university to use race to achieve the educational benefits of diversity.”58 Such a verification requires a “careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.”59 Thus, the reviewing court must “ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”60 It follows, therefore, that if “a nonracial approach ... could promote the substantial interest about as well and at tolerable expenses, ... then the university may not consider race.”61 And it is the university that bears “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” 62

The Supreme Court emphasized that strict scrutiny must be balanced. That is, “[s]triet scrutiny must not be strict in theory, but fatal in fact,” yet it must also “not be strict in theory but feeble in fact.”63

IV

A

Fisher insists that our inquiry into narrow tailoring begin in 2004, the last year before UT Austin adopted its current race-conscious admissions program. Looking to that year, Fisher argues that the Top Ten Percent Plan had achieved a substantial combined Hispanic and African-American enrollment of approximately 21.5%;64 and that this is more minority enrollment than present in Grutter, where a race-conscious plan grew minority enrollment from approximately 4% to 14%. Because UT Austin was already enrolling a larger percentage of minorities than the Michigan Law School, the argument maintains, UT Austin had achieved sufficient diversity to attain the educational benefits of diversity, a critical mass, before it adopted a race-conscious admissions policy; that even if *645sufficient diversity had not been achieved by 2004, it had been achieved by 2007 when the combined percentage of Hispanic and African-American enrolled students was 25.5%. Thus, Fisher argues, the race-conscious admissions policy had a de min-imis effect, at most adding 0.92% African-American enrollment and 2.5% Hispanic enrollment; that a slight contribution is not a “constitutionally meaningful” impact on student body diversity and is no more than an exercise in gratuitous racial engineering.

This effort to truncate the inquiry clings to a baseline that crops events Fisher’s claim ignores, as it must. The true narrative presents with a completeness both fair and compelled by the Supreme Court’s charge to ascertain the facts in full without deference, exposing the de minimis argument as an effort to turn narrow tailoring upside down. We turn to that narrative.

B

In 1997, following the Hopwood v. Texas65 decision, UT Austin faced a nearly intractable problem: achieving diversity— including racial diversity — essential to its educational mission, while not facially considering race even as one of many components of that diversity. Forbidden any use of race after Hopwood, UT Austin turned to the Top Ten Percent Plan, which guarantees Texas residents graduating in the top ten percent of their high school class admission to any public university in Texas. Such a mechanical admissions program could have filled every freshman seat but standing alone it was not a workable means of achieving the diversity envisioned by Bakke, bypassing as it did high-performing multi-talented students, minority and non-minority. With its blindness to all but the single dimension of class rank, the Top Ten Percent Plan came with significant costs to diversity and academic integrity, passing over large numbers of highly qualified minority and non-minority applicants. The difficulties of Texas’s and other states’ percentage plans did not .escape the Court in Grutter, which explained that “even assuming such plans are race-neutral, 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.”66

Nor did these difficulties escape the Texas legislature. Opponents to the proposed plan noted that such a policy “could actually harm institutions” and “would not solve the problems created by [Hop-wood ].”67 So the legislature adopted a Top Ten Percent Plan that left a substantial number of seats to a complementary holistic review process. Foreshadowing Grutter, admission supplementing the Top Ten Percent Plan included factors such as socio-economic diversity and family educational achievements but, controlled by Hopwood, it did not include race. In short, a holistic process sans race controlled the gate for the large percent of applicants not entering through the Top Ten Percent Plan. Over the succeeding years the Top Ten Percent Plan took an increasing number of seats, a take inherent in its structure and a centerpiece of narrow tailoring, as we will explain.

C

We are offered no coherent response to the validity of a potentially different elec*646tion by UT Austin: to invert the process and use Grutter’s holistic review to select 80% or all of its students. Such an exponential increase in the use of race under the flag of narrow tailoring is perverse. Grutter blessed an admissions program, applied to the entire pool of students competing for admission, which “considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.” Affording no deference, we look for narrow tailoring in UT’s Austin’s use of this individualized race-conscious holistic review, applied as it is only to a small fraction of the student body as the rest is consumed by race-neutral efforts.

Close scrutiny of the data in this record confirms that holistic review — what little remains after over 80% of the class is admitted on class rank alone — does not, as claimed, function as an open gate to boost minority headcount for a racial quota. Far from it. The increasingly fierce competition for the decreasing number of seats available for Texas students outside the top ten percent results in minority students being under-represented — and white students being over-represented — in holistic review admissions relative to the program’s impact on each incoming class. In other words, for each year since the Top Ten Percent Plan was created through 2008, holistic review contributed a greater percentage of the incoming class of Texans as a whole than it did the incoming minority students. Examples illustrate this effect. Of the incoming class of 2008, the year Fisher applied for admission, holistic review contributed 19% of the class of Texas students as a whole — but only 12% of the Hispanic students and 16% of the black students, while contributing 24% of the white students.68 The incoming class of 2005, the year that the Grutter plan was first introduced, is similar. That year, 31% of the class of Texas students as a whole was admitted through holistic review (with the remaining 69% of incoming seats for Texans filled by the Top Ten Percent Plan) — but only 21% of the Hispanic Texan students in the incoming class were admitted through holistic review, and 26% of the incoming black Texan students, but 35% of the incoming white Texan students.69 Minorities being under-represented in holistic review admission relative to the impact of holistic review on the class as a whole holds true almost without exception for both blacks and Hispanics for every year from 19962008,70 and can be *647seen in the chart attached to this opinion at Appendix 1.

Given the test score gaps between minority and non-minority applicants, if holistic review was not designed to evaluate each individual’s contributions to UT Austin’s diversity, including those that stem from race, holistic admissions would approach an all-white enterprise. Data for the entering Texan class of 2005, the first year of the Grutter plan, show that Hispanic students admitted through holistic review attained an average SAT score of 1193, African-American students an 1118, and white students a 1295.71 For the entering class of 2007, the last class before Fisher applied for admission, the corresponding data were 1155 for Hispanic students, 1073 for African American students, and 1275 for white students, this from a universe of underperforming secondary schools.72 As we have explained, the impact of the holistic review program on minority admissions is already narrow, targeting students of all races that meet both the competitive academic bar of admissions and have unique qualities that complement the contributions of Top Ten Percent Plan admittees.

D

UT Austin did not stop with the Top Ten Percent Plan in its effort to exhaust racially neutral alternatives to achieving diversity. It also initiated a number of' outreach and scholarship efforts targeting under-represented demographics, including the over half of Texas high school graduates that are African-American or Hispanic.73 Programs included the Longhorn Opportunity Scholarship Program, the Presidential Achievement Scholarship Program, the First Generation Scholarship, and increased outreach efforts. Implemented in 1997, the Longhorn Opportunity Scholarship Program offers scholarships to graduates of certain high schools throughout Texas that *648had predominantly low-income student populations and a history of few, if any, UT Austin matriculates.74 It guarantees a specific number of scholarships for applicants who attend these schools, graduate within the top ten percent, and attend UT Austin. The Presidential Achievement Scholarship program is a need-based scholarship that is awarded based on the applicant’s family income, high school characteristics, and academic performance as compared to his or her peers at that high school.75 The First Generation Scholarship Program targets applicants who are the first in their family to attend college.76 UT Austin invested substantial amounts of money in these scholarship programs. Between 1997 and 2007, UT Austin awarded $59 million through these scholarships.77 Indeed, in 2007, UT Austin awarded $5.8 million for the Longhorn Opportunity and Presidential Achievement scholarship programs alone.78

UT Austin also expanded its outreach and recruitment efforts by increasing its recruitment budget by $500,000, by adding three regional admissions centers in Dallas, San Antonio, and Harlingen,79 by engaging in outreach programs that brought prospective students to UT Austin for daylong or overnight visits,80 and by hosting multi-day campus conferences for high school counselors.81 These regional admissions centers reflect a substantial investment by UT Austin: the Dallas Admissions center employed 4 new full-time staff, the San Antonio Admissions Center employed 4 new full-time staff, and the Harlingen Admissions Center employed 5 new full-time staff.82 The stated goal of these centers was “to increase [UT Austin’s] visibility and interaction with prospective students, parents and high school administrators within the geographic market they existed [sic]. These centers allowed for increased quality and quantity of counseling, face to face discussions, and programming within the prospective students’ home city.”83 Additionally, staff from these regional centers helped organize “over 1,000 College Night/Day events held at High Schools across the state” and “around 1,000 Day Visits to High Schools around the state in an effort to encourage prospective top 10% students to apply and enroll at [UT Austin].”84 Relatedly, the admissions office also held targeted recruiting events for students from the Dallas, San Antonio, Houston, and Rio Grande Valley areas. These events included the “Longhorn Lock-in,” wherein students from targeted high schools would spend the night at UT Austin; the UT Scholars Program, wherein scholarship recipients from targeted schools would spend the night at UT Austin; and “Longhorn for a *649Day,” wherein students from targeted schools would spend the day at UT Austin.85 Finally, the admissions office would hold four “Longhorn Saturday Events” on campus, where thousands of prospective students and their families would come to UT Austin.86

In addition to the admissions office’s efforts, UT Austin’s Office of Student Financial Services increased their outreach efforts by putting together the Financial Aid Outreach Group to visit high schools to help prospective students “understand the financial support offered by [UT Austin].”87 The goal of this Financial Aid Outreach Group “was to convince low income students that money should not be a barrier to attending college.”88

“Narrow tailoring does not require exhaustion of every race neutral alternative,” but rather “serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.”89 Put simply, this record shows that UT Austin implemented every race-neutral effort that its detractors now insist must be exhausted prior to adopting a race-conscious admissions program — in addition to an automatic admissions plan not required under Grutter that admits over 80% of the student body with no facial use of race at all.

E

Despite UT Austin’s rapid adoption of these race-neutral efforts, in 1997 — the first freshman class after Hopwood — the percentage of African-American admitted students fell from 4.37% to 3.41%, representing a drop from 501 to 419 students even as the total number of admitted students increased by 833 students.90 Similarly, the percentage of Hispanic admitted students fell from 15.37% to 12.95%.91 With UT Austin’s facially race-neutral admissions program and outreach efforts, the percentage of African-American and Hispanic admitted students eventually recovered to pre-Hopwood levels. By 2004, African-American admitted students climbed to 4.82% and Hispanic admitted students climbed to 16.21%.92 But minority representation then remained largely stagnant, within a narrow oscillating band, rather than moving towards a critical mass of minority students. The hard data show that starting in 1998 and moving toward 2004, African-American students comprised 3.34%, then 4.32%, then 4.24%, then 3.49%, then 3.67%, then 3.89%, and finally 4.82% of the admitted pool.93 Similarly, Hispanic admitted students represented 13.53%, then 14.27%, then 13.75%, then 14.25%, then 14.43%, then 15.60%, and finally 16.21% of the entering classes for those respective years.94

*650V

A

Numbers aside, the Top Ten Percent Plan’s dependence upon a distinct admissions door remained apparent. With each entering class, there was a gap between the lower standardized test scores of students admitted under the Top Ten Percent Plan and the higher scores of those admitted under holistic review. For example, in 2008 — the year Fisher applied for admission' — 81% of the seats available to Texas residents were taken up by the Top Ten Percent Plan.95 These Top Ten Percent students had an average standardized test score of 1219, 66 points lower than the average standardized test score of 1285 attained by Texas students admitted under holistic review or on the basis of a high AI.96 A gap persisted not only among students overall and white students, but also among racial and ethnic minority students.97 This inheres in the reality that the strength of the Top Ten Percent Plan is also its weakness, one that with its single dimension of selection makes it unworkable standing alone.

B

The sad truth is that the Top Ten Percent Plan gains diversity from a fundamental weakness in the Texas secondary education system. The de facto segregation of schools in Texas98 enables the Top Ten *651Percent Plan to increase minorities in the mix, while ignoring contributions to diversity beyond race. We assume, as none here contends otherwise, that this “segregation [is] not the ‘product ... of state action but of private choices,’ having no ‘constitutional implications’ ” and therefore it is “a question for the political branches to decide! ] the manner — which is to say the process — of its resolution.”99 In short, these demographics are directly relevant to the choices made by the political branches of Texas as they acted against the backdrop of this unchallenged reality in their effort to achieve a diverse student body. Texas is here an active lab of experimentation embraced by the Court in Schuette v. BAMN.100 We reference here these unchallenged facts of resegregation not in justification of a racial remedy, but because the racial makeup and relative performance of Texas high schools bear on the workability of an alternative to any use of race for 80% of student admissions .to UT Austin. The political branches opted for this facially race-rieutral alternative — a narrow tailoring in implementation of their goal of diversity.

Fisher’s claim can proceed only if Texas must accept this weakness of the Top Ten Percent Plan and live with its inability to look beyond class rank and focus upon individuals. Perversely, to do so would put in place a quota system pretextually race neutral. While the Top Ten Percent Plan boosts minority enrollment by skimming from the tops of Texas high schools, it does so against this backdrop of increasing resegregation in Texas public schools,101 where over half of Hispanic students and 40% of black students attend a school with 90%~100% minority enrollment.102

Data for the year Fisher graduated high school show that gaps between the quality of education available to students at integrated high schools and at majority-minority schools are stark. Their impact upon UT Austin is direct. The Top Ten Percent Plan draws heavily from the population concentrations of the three major metropolitan areas of Texas — San Antonio, Houston, and Dallas/Fort Worth — where over half of Texas residents live and where the outcomes gaps of segregated urban schools are most pronounced.103 The San *652Antonio metropolitan area demonstrates this effect. Boerne Independent School District (“ISD”) achieved a “recognized status” and five “Gold Performance Acknowledgments” from the Texas Education Agency.104 At this relatively integrated school district, 79.9% of graduating students were white and 19.2% were black or Hispanic.105 Over 97% of students graduated high school.106 They achieved an average SAT score of 1072, and 61% were deemed college-ready in both English and Math by the Texas Education Agency.107 San Antonio ISD, its neighbor, a highly segregated and “academically unacceptable” district,108 tells a different story. 86.8% of graduating students were Hispanic and 8.2% were black, and over 90% were economically disadvantaged.109 Only 59.1% of the high school class of 2008 graduated; SAT test takers achieved an average score of 811; and only 28% of graduates were college-ready in both English and Math.110

A similar tale of two cities played out in the Houston area between integrated Katy ISD, where 7.8% of graduating students were black, 23.2% Hispanic, and 59.8% white,111 and segregated Pasadena ISD, where 6.5% were black, 64.8% Hispanic, and 24.3% white.112 At Katy, a “recognized” district with two “Gold Performance Acknowledgments,” 91.8% of students graduated, with an average SAT score of 1080 and 60% college readiness in both English and Math.113 At Pasadena, only 67.8% graduated; SAT test-takers achieved an average score of 928; and 40% were college-ready in both English and Math.114

The narrative repeats itself in the Dallas/Fort Worth metropolitan area. For example, Keller ISD, a large and “recognized” school district with four “Gold Per*653formance Acknowledgements,”115 is fairly integrated. 72.3% of graduating students are white, 12.2% are Hispanic, and 7.3% are African-American.116 The high school senior class of 2008 attained a graduation rate of 88.7% and an average SAT score of 1043, and 53% were college-ready in both English and Math.117 The data for nearby Dallas ISD, one of the largest in the state with 157,174 students and 7,308 high school seniors,118 shows a highly segregated school in stark contrast. There, black and Hispanic students make up 90.9% of the graduating class, and 86.1% of all students are economically disadvantaged.119 Only 65.2% graduated high school; SAT test-takers achieved an average score of 856; and only 29% of graduating seniors were college-ready in both English and Math.120

The top decile of high schools in each of these districts — including large numbers of students from highly segregated, underfunded, and underperforming schools — all qualified for automatic admission to UT Austin. That these students were able to excel in the face of severe limitations in their high school education and earn a coveted place in UT Austin’s prestigious freshman class is to be commended. That other students are left out — those who fell outside their high school’s top ten percent but excelled in unique ways that would enrich the diversity of UT Austin’s educational experience — leaves a gap in an admissions process seeking to create the multi-dimensional diversity that Bakke envisions.

C

UT Austin’s holistic review program — a program nearly indistinguishable from the University of Michigan Law School’s program in Grutter — was a necessary and enabling component of the Top Ten Percent Plan by allowing UT Austin to reach a pool of minority and non-minority students with records of personal achievement, higher average test scores, or other unique skills. A variety of perspectives, that is differences in life experiences, is a distinct and valued element of diversity. Yet a significant number of students excelling in high-performing schools are passed over by the Top Ten Percent Plan although they could bring a perspective not captured by admissions along the sole dimension of class rank. For example, the experience of being a minority in a majority-white or majority-minority school and succeeding in that environment offers a rich pool of potential UT Austin students with demonstrated qualities of leadership and sense of self. Efforts to draw from this pool do not demean the potential of Top Ten admittees. Rather it complements their contribution to diversity — mitigating in an important way the effects of the single dimension process.

UT Austin persuades that this reach into the applicant pool is not a further search for numbers but a search for sta-*654dents of unique talents and backgrounds who can enrich the diversity of the student body in distinct ways including test scores, predicting higher levels of preparation and better prospects for admission to UT Austin’s more demanding colleges and ultimately graduation. It also signifies that this is a draw from a highly competitive pool, a mix of minority and non-minority students who would otherwise be absent from a Top Ten Percent pool selected on class rank, a relative and not an independent measure across the pool of applicants.

VI

These realities highlight the difficulty of an approach that seeks to couch the concept of critical mass within numerical terms. The numbers support UT Austin’s argument that its holistic use of race in pursuit of diversity is not about quotas or targets, but about its focus upon individuals, an opportunity denied by the Top Ten Percent Plan. Achieving the critical mass requisite to diversity goes astray when it drifts to numerical metrics. UT Austin urges that it has made clear that looking to numbers, while relevant, has not been its measure of success; and that its goals are not captured by population ratios. We find this contention proved, mindful that by 2011, Texas high school graduates were majority-minority.

UT Austin urges that its first step in narrow tailoring was the admission of over 80% of its Texas students though a facially race-neutral process, and that Fisher’s embrace of the sweep of the Top Ten Percent Plan as a full achievement of diversity reduces critical mass to a numerical game and little more than a cover for quotas. Fisher refuses to acknowledge this distinction between critical mass — the tipping point of diversity — and a quota. And in seeking to quantify “critical mass” as a rigid numerical goal, Fisher misses the mark. Fisher is correct that if UT Austin defined its goal of diversity by the numbers only, the Top Ten Percent Plan could be calibrated to meet that mark. To do so, however, would deny the role of holistic review as a necessary complement to Top Ten Percent admissions. We are persuaded that holistic review is a necessary complement to the Top Ten Percent Plan, enabling it to operate without reducing itself to a cover for a quota system; that in doing so, its limited use of race is narrowly tailored to this role — as small a part as possible for the Plan to succeed.

A

The Top Ten Percent Plan is dynamic, its take floating year to year with the number of Texas high school graduates in the top ten percent of their class that choose to capitalize on their automatic admission to the flagship university. Its impact on the composition of each incoming class predictably has grown dramatically, leaving ever fewer holistic review seats available for the growing demographic of Texas high school graduates. In 1996, when the Top Ten Percent Plan was introduced, it admitted 42% of the Texas incoming class; by 2005, when the Grutter plan was introduced, the Plan occupied 69% of the seats available to Texas residents; by 2008, when Fisher applied for admission, it had swelled to 81%.121 The increasing take of the Top Ten Percent Plan both enhanced its strengths and exacerbated its *655inherent weaknesses in composing the UT student body, as the overwhelming majority of seats was granted to students without the facial use of race but also without consideration of experiences beyond a single academic dimension. So as the take of the Top Ten Percent Plan grew, so also did the necessity of a complementary holistic admissions program to achieve the diversity envisioned by Bakke.

A quick glance in the public record of data since 2008 confirms that UT Austin’s race-conscious holistic review program has a self-limiting nature, one that c