ACR Fortune 100 and Other Leading American Businesses

7/31/2019 ACR Fortune 100 and Other Leading American Businesses

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No. 11-345

_________

ABIGAIL NOEL FISHER,Petitioner,

v.UNIVERSITYOF TEXASATAUSTIN,ETAL.,

Respondents.

________

DAVID W.DEBRUINCounsel of Record

ELAINE J.GOLDENBERGMATTHEW S.HELLMANELIZABETHA.EDMONDSONCAROLINE D.LOPEZJENNIFERV.YEHJENNER &BLOCK LLP1099 New York Avenue, NWWashington, DC 20001(202) [email protected]

Additional Counsel Listed Inside


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This brief is filed on behalf of the following Fortune-100and other leading American businesses:


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Laura SchumacherKaren L. Hale

Abbott Laboratories

Neal A. MurphyAetna Inc.

Louise M. ParentAmerican Express Company

Julie JacobsMaureen F. Del Duca

AOL Inc.

Paul M. LiebensonArcelorMittal USA

Mareile B. CusackAriel Investments

Laura H. WitteCargill, Inc.

Neal A. RubinCisco Systems, Inc.

Laura Stein

The Clorox CompanyLarry TuChristopher H. HahnDell Inc.

William F. LloydDeloitte LLP

Charles J. KalilEric P. BlackhurstThe Dow Chemical Company

Thomas L. SagerE. I. du Pont de Nemours andCompany

Patrick ShellerEastman Kodak Company

Marcus V. BrownEntergy Corporation

Darryl M. BradfordExelon Corporation

Meredith GrahamSven FickelerSerena Wilson-GriffinFurniture BrandsInternational, Inc.

Michelle BanksGap Inc.

Gregory S. GallopoulosGeneral Dynamics Corporation

Brackett B. Denniston IIIStephen Shackelford, Jr.General Electric Company

Roderick A. PalmoreGeneral Mills, Inc.

John L. HowardRobert T. MarkowskiDavid RawlinsonW. W. Grainger, Inc.

William L. BedmanHalliburton Energy Services,Inc.

Maria C. GreenIllinois Tool Works Inc.

A. Douglas MelamedIntel Corporation

Teri Wilford WoodInternational BusinessMachines Corporation

Sharon R. RyanInternational Paper Company

Michael H. UllmannJohnson & Johnson


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Mark S. ZemelmanKaiser Foundation Hospitals

Gary H. PilnickKellogg Company

Gerhard W. PleuhsDouglas W. CherryKraft Foods Inc.

Edward A. RyanMarriott International, Inc.

Bruce N. KuhlikMerck & Co., Inc.

Thomas W. BurtMicrosoft Corporation

Sheila C. ChestonNorthrop GrummanCorporation

Larry D. ThompsonPepsiCo Inc.

Pauline O. FoxThe Permanente FederationLLC

Thomas R. Kelly

Pfizer Inc.

Yolanda Seals-CoffieldPricewaterhouseCoopers LLP

Deborah P. MajorasJoseph D. HeydThe Procter & GambleCompany

Susan L. BlountAnn M. KapplerPrudential Financial, Inc.

J.A. Bouknight, Jr.

Randall E. MehrbergPublic Service EnterpriseGroup Inc.

Teresa BurhoffStephen G. WohlebSeton Healthcare Family

Lynda M. IrvineShell Oil Company

Madeleine JohnsonSouthwest Airlines Co.

Susan Z. HallerSprint Nextel Corporation

Lucy Lee HelmStarbucks Corporation

Lizbeth OShaughnessyJames OConnorSteelcase Inc.

Victoria E. SilbeySunGard Data Systems Inc.

Kenneth D. GreismanTakeda PharmaceuticalsU.S.A., Inc.

Brett J. HartUnited Airlines, Inc.

Gayla Thal

Union Pacific Railroad Corp.

Doug KranwinkleUnivision CommunicationsInc.

Michael D. FricklasDaniel M. Mandil

Viacom Inc.

Jeffrey J. GearhartWal-Mart Stores, Inc.

Eric L. SchachtWolfram Research, Inc.

Don H. LiuXerox Corporation


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TABLE OF AUTHORITIES ..................................... iiINTEREST OFAMICI CURIAE............................. 1SUMMARY OF ARGUMENT .................................. 2

ARGUMENT ............................................................ 4I. The Pursuit of Diversity in HigherEducation Remains a Compelling State

Interest Even More So Than When theCourt Decided Grutter. ....................................... 4

II. Petitioners Application of Strict ScrutinyWould Hamper Educational InstitutionsLegitimate Efforts to Pursue MeaningfulDiversity Consistent with TheirEducational Missions and the Needs of theBusiness Community. ....................................... 13

CONCLUSION ....................................................... 19


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ii

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

Grutter v. Bollinger, 539 U.S. 306(2003) ..................... 1, 4-5, 6, 10, 11, 14-15, 18, 19

Parents Involved in Community Schools v.

Seattle School District No. 1, 551 U.S.

701 (2007) .............................................. 16, 18, 19Regents of the University of California v.

Bakke, 438 U.S. 265 (1978) .............. 6, 10, 13, 18

Sweatt v. Painter, 339 U.S. 629 (1950) .................. 6

Prepared for the Joint Economic Committeeby the Council of Economic Advisers,112th Cong., 2d Sess., EconomicIndicators (May 2012), available at

http://www.gpo.gov/fdsys/pkg/ECONI-2012-05/pdf/ECONI-2012-05.pdf ........................ 9

Bureau of Legal Statistics, U.S. Dept ofLabor, Employment Projections Civilian Labor force by age, sex, race, andethnicity, available at http://www.bls.gov/emp/ep_table_304.htm (lastvisited July 23, 2012) .......................................... 8


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Business Roundtable, Taxation of AmericanCompanies in the Global Marketplace: A

Primer (April 2011), available athttp://businessroundtable.org/uploads/studies-reports/downloads/Taxation_of_

American_ Companies.pdf .................................. 9

Jill Dutt, Taking an Engineers Approach atLockheed Martin, WASH. POST, May 1,2006, at D1 ........................................................ 11

Cedric Herring, Does Diversity Pay?: Race,Gender, and the Business Case for

Diversity, 74 AM.SOCIOLOGICAL REV.208(2009) ................................................................. 10

William J. Holstein, Diversity Is Even MoreImportant in Hard Times, N.Y. TIMES,Feb. 14, 2009, at B2 ...................................... 8, 10

Carol Hymowitz, The New Diversity, WALLST.J.,Nov. 14, 2005, at R1 ............................... 11

Lisa H. Nishii & David M. Mayer, Ctr. forAdvanced Human Res. Studies, CornellUniv., Paving the Path to Performance:Inclusive Leadership Reduces Turnover

in Diverse Work Groups, Feb. 2010 ................. 11

Scott E. Page, The Difference: How thePower of Diversity Creates Better

Groups, Firms, Schools, and Societies(2007) ................................................................. 10


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Press Release, U.S. Dept of Commerce, U.S.Census Bureau News, A Profile of U.S.Importing and Exporting Companies

2009-2010 (2012), available athttp://www.census.gov/foreign-trade/Press-Release/edb/2010/ edbrel.pdf .................... 9

Ross Ramsey et al., Minorities Drove TexasGrowth, Census Figures Show, TEX.TRIB., Feb. 18, 2011 ............................................ 7

Marcus Robinson et al., Business Case forDiversity with Inclusion, WetWare, Inc.,2003 ................................................................... 11

Stanley F. Slater et al., The Business Casefor Commitment to Diversity, 51BUSINESS HORIZONS 201 (2008) ........................ 10

U.S. Census Bureau, Overview of Race andHispanic Origin: 2010, 2010 CensusBriefs (March 2011), available at

http://www.census.gov/prod/cen2010/briefs/ c2010br-02.pdf ......................................... 7

U.S. Census Bureau, The Black Population:2010, 2010 Census Briefs (Sept. 2011),available at http://www.census.gov/prod/cen2010/briefs/c2010 br-06.pdf .................. 7


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1

Amici are several of Americas largestcompanies.1 A similar group of significantbusinesses filed a brief in this Court in Grutter v.Bollinger, 539 U.S. 306 (2003), which this Court citedand relied upon in its decision, see id. at 330.2

Amicirecruit employees who are graduates of theUniversity of Texas at Austin (UT) or similar

leading institutions of higher education. Indeed,amici who collectively have revenues in thetrillions of dollars hire thousands of graduates ofUT and other major public universities every year.

As a result, amici have a vital interest in thiscase. Amici are directly affected by the admissionspolicies at UT and similar colleges and universities,and they care deeply about what kind of educationand training those institutions offer their students.

Amicifile this brief to reaffirm the significance ofdiversity in higher education to Americas largestbusinesses. In addition, although amicido not take aposition on the constitutionality of the specific

1All parties have consented to the filing of this amicus curiaebrief. No portion of the brief was authored by counsel for aparty. No person or entity other than the amici signing thisbrief or their counsel made a monetary contribution to thepreparation or submission of this brief.

2 The companies participating in this amicus brief came

together through an informal, ad hoc process. The stronglyheld views set forth in this brief, approved at senior levels ofeach participant, likely are shared by many additionalcompanies as well.


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practices at issue here, amici do address certaintroubling aspects of Petitioners strict-scrutinyanalysis that, if accepted, could render illusory theCourts affirmation of diversity as a compelling stateinterest.

1. This Court should reaffirm its holding inGrutterthat the conscious pursuit of diversity in the

admissions decisions of institutions of highereducation including diversity based upon race,religion, culture, economic background, and otherfactors is a compelling state interest. Theprinciples established in Grutterare more importanttoday than ever. For amici to succeed in theirbusinesses, they must be able to hire highly trainedemployees of all races, religions, cultures andeconomic backgrounds. It also is critical to amicithat all of their university-trained employees havethe opportunity to share ideas, experiences,viewpoints and approaches with a broadly diversestudent body. To amici, this is a business andeconomic imperative.

Today even more than when Grutterwas decided,amici operate in a country and world economy thatare increasingly diverse. Amicihave found throughpractical experience that a workforce trained in adiverse environment is critical to their businesssuccess. Amiciare dedicated to promoting diversityas an integral part of their business, culture, andplanning. But amicicannot reach that goal on theirown. The only means of obtaining a properlyqualified group of employees is through diversity in


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institutions of higher education, which are allowed torecruit and instruct the best qualified minoritycandidates and create an environment in which allstudents can meaningfully expand their horizons.

2. Amici recognize that strict scrutiny must beapplied in assessing the constitutionality of thespecific practices employed at UT. Amiciare not in aposition to know or evaluate the legality of specific

admissions procedures of UT or any other particularuniversity. But two principles are important toamici as the Court evaluates the specific issues inthis case.

First, the strict-scrutiny test must not be appliedby this Court in such a way as to be inevitably fatalin fact in the context of the pursuit of diversity inhigher education. Within the confines of a rigorousconstitutional analysis, there must be room for auniversity to decide that a particular approach toadmissions is necessary to achieve importanteducational goals. For instance, a university shouldbe able to evaluate whether students enrolled inparticular subsets of the university are realizing theeducational benefits of diversity. A university mayhave a business college or engineering department both particularly important to amici lacking acritical mass of underrepresented minorities andneeding an admissions plan that considers race alongwith applicants other personal characteristics.Without such a critical mass, none of the business or

engineering students, whether they are minorities ornot, are likely to have the kinds of diversity-related


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academic experiences that amici believe will helpprepare them for success in the corporate world.

Second, higher-education diversity must not betreated as a simplistic numbers game. Focusingsolely on percentages of minorities in an enteringclass, and determining that a certain percentage isnecessarily sufficient as a matter of law asPetitioner suggests here harkens back to the very

quota systems that Bakke and Grutter expresslyrejected.

Rather than treating diversity in purelynumerical terms, amici urge the Court to find ananalogy in amicis own hiring decisions. Thosedecisions take into account the many different waysthat a particular candidate may be able to contributeto the organization. Amici are not attempting toreach some numerical quota of minority employees;they would not be satisfied, for instance, by simplyhiring a certain number of diverse employees.Rather, amiciseek to hire the most qualified group ofemployees, while taking into account all of thecharacteristics of those employees that will enrichthe amicis workplaces and strengthen theirbusinesses.

In Grutter v. Bollinger, 539 U.S. 306, this Courtheld that student body diversity is a compellingstate interest that can justify the use of race in


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university admissions. Id. at 325; see also id. at328. In so doing, the Court relied in part on theviews of major American businesses, which filed abrief making clear that the skills needed in todaysincreasingly global marketplace can only bedeveloped through exposure to widely diverse people,cultures, ideas, and viewpoints. Id. at 330 (citingBrief for 3M et al. asAmici Curiae).

In the case at hand, Petitioner and a number ofher amiciask the Court to overrule Grutter, pointingspecifically to the holding on the importance ofdiversity. See, e.g., Petr Br. at 53; Asian Am. LegalFound. Br. at 36; Pacific Legal Found. Br. at 24. Themajor American businesses that are signatories tothis brief urge the Court to reject this argument andto reaffirm that diversity in university admissions isa compelling state interest.

1. As many of the amici here explained in thebrief they filed in Grutterten years ago, people whohave been educated in a diverse setting makevaluable contributions to the workforce in severalimportant ways. Such graduates have an increasedability to facilitate unique and creative approaches toproblem-solving by integrating different perspectivesand moving beyond linear, conventional thinking;they are better equipped to understand a widervariety of consumer needs, including needs specific toparticular groups, and thus to develop products andservices that appeal to a variety of consumers and to

market those offerings in appealing ways; they arebetter able to work productively with businesspartners, employees, and clients in the United States


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and around the world; and they are likely to generatea more positive work environment by decreasingincidents of discrimination and stereotyping. Brieffor 3M et al. as Amici Curiaeat 7 (Grutter, No. 02-241); see also, e.g., General Motors AmicusBr. at 2(Grutter, No. 02-241).

In light of these advantages, the Grutter Courtconcluded that the only way to develop the skills

needed in todays increasingly global marketplace isthrough exposure to widely diverse people, cultures,ideas, and viewpoints. Grutter, 539 U.S. at 330; cf.Sweatt v. Painter, 339 U.S. 629, 634 (1950). TheCourt therefore endorsed Justice Powells statementin Bakke that nothing less than the [N]ationsfuture depends upon leaders trained through wideexposure to the ideas and mores of students asdiverse as this Nation of many peoples. Grutter,539 U.S. at 324 (quoting Regents of the Univ. of Cal.v. Bakke, 438 U.S. 265, 313 (1978) (opinion of Powell,

J.) (quoting Keyishian v. Board of Regents of Univ. ofState of N.Y., 385 U.S. 589, 603 (1967))).

2. Amicis interest in and need for diversity and, by extension, the states interest in diversity inhigher education has become even more compellingas time has passed. American corporations mustaddress the needs of an increasingly diverse U.S.population and a growing global market, and theyneed a workforce trained in a diverse environment inorder to succeed in these arenas. Amici have also

found over time that the benefits of diversity areparticularly important to their business success in achallenging economic environment.


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First, the U.S. population is increasingly diverse,and it is important to amicito be able to hire the besteducated and trained students of all backgrounds.Since Grutter was decided, minority populationshave grown at a significantly faster rate than thenon-minority population. The population of thosewho reported their race as white grew only 1%between 2000 and 2010.3 In that same period, theHispanic population grew by 43 percent, increasing

from 35.3 million people to 50.5 million people; theAfrican-American population grew by 12 percent,increasing from 34.7 million people to 38.9 millionpeople.4 This trend is particularly pronounced inTexas, where growth in the Hispanic and African-

American communities drove rapid populationgrowth over the last decade. See, e.g., Ross Ramseyet al., Minorities Drove Texas Growth, CensusFigures Show, TEX.TRIB., Feb. 18, 2011.

Given these changes in the population as a whole,

it is not surprising that the U.S. workforce has alsogrown more diverse in recent years. In 2000, 72% ofthe workforce in the United States was White non-Hispanic; by 2010, that percentage had decreased to

3 See U.S. Census Bureau, Overview of Race and HispanicOrigin: 2010, 2010 Census Briefs, at 3 (March 2011), availableathttp://www.census.gov/prod/cen2010/ briefs/c2010br-02.pdf.4 See id. at 4; see also U.S. Census Bureau, The BlackPopulation: 2010, 2010 Census Briefs, at 3 (Sept. 2011),available at http://www.census.gov/prod/cen2010/briefs/c2010br-06.pdf.


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67.5%.5 The Bureau of Labor Statistics projects thatin 2020 that percentage will have further decreasedto 62.3%.6

Now more than ever, then, amicis employeesneed to be able to work successfully with a diversegroup of co-workers, supervisors, subordinates,counterparts at other U.S. businesses (includingdistributors, suppliers, and competitors), and U.S.

customers. The rich variety of ideas, perspectives,and experiences to which both minority and non-minority students are exposed in a diverse universitysetting, and the cross-cultural interactions that theyexperience, are essential to the students ability tofunction in and contribute to the increasingly diversecommunity in the United States. See, e.g.,WilliamJ. Holstein, Diversity Is Even More Important inHard Times, N.Y. TIMES, Feb. 14, 2009, at B2(stating that [i]n the United States, the multi-cultural consumer today is over a third of the

population, and 80 percent of the populationgrowth).

Second, in the years since Grutter was decidedAmerican businesses have continued their rapidexpansion into the global marketplace. U.S.companies increasingly sell their goods and servicesabroad and manage extensive operations in foreign

5 Bureau of Legal Statistics, U.S. Dept of Labor, EmploymentProjections Civilian Labor force by age, sex, race, and

ethnicity, Table 3.4, available at http://www.bls.gov/emp/ep_table_304.htm (last visited July 23, 2012).

6See id.


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countries. Indeed, [i]n 2009, worldwide Americancompanies in the Standard & Poors 500 (S&P 500)had more than 55 percent of total income earnedoutside the United States. Business Roundtable,Taxation of American Companies in the Global

Marketplace: A Primer, at 4 (April 2011), avail-able at http://businessroundtable.org/uploads/studies-reports/downloads/Taxation_of_American_Companies.pdf.7

For example, amicus Procter & Gamble hasemployees located in and serving customers in 75different countries. Hundreds of American-trainedemployees are working for Procter & Gamble inthose countries. More and more, amicioperate andcompete in a global environment, and therefore needemployees who can effectively serve and worktogether with people from many different cultures.

Finally, amici have found that the benefits theyrealize from a workforce educated in a diverseuniversity setting are particularly critical in difficulteconomic times. In that kind of economicenvironment, competition becomes more intense, andthere is a greater need to think creatively and come

7See also, e.g., Prepared for the Joint Economic Committee bythe Council of Economic Advisers, 112th Cong., 2d Sess.,Economic Indicators, at 35 (May 2012) (value of U.S. exportshas grown from $1023.5 billion in 2003 to $2105.1 billion in2011), available athttp:// www.gpo.gov/fdsys/pkg/ECONI-2012-05/pdf/ECONI-2012-05.pdf; see alsoPress Release, U.S. Dept of

Commerce, U.S. Census Bureau News, A Profile of U.S.Importing and Exporting Companies 2009-2010 at 1-2 (2012),available at http://www.census.gov/foreign-trade/Press-Release/edb/2010/ edbrel.pdf.


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up with innovative approaches. Those are exactlythe skills that are developed in a diverse and vibrantuniversity environment. See Grutter, 539 U.S. at330; Regents of the Univ. of Cal. v. Bakke, 438 U.S.265, 312-14 (1978) (opinion of Powell, J.).Particularly when economic times are tight, [i]tsdifficult, if not impossible, for homogenous groupsto challenge and offer different perspectives, uniqueexperiences, and the broad-based wisdom that

makes all levels of a company as effective as theycan be. Holstein, supra, at B2.

All of this is not just a matter of abstract ideas,but of dollars and cents as well. Amici seek tostrengthen their businesses and to grow; they seek toincrease their revenue and the return to theirshareholders. Amici support the findings ofextensive research that indicates that a commitmentto diversity, with all of its attendant benefits, isassociated with increased sales revenue, more

customers, greater market share, and greaterrelative profits. Cedric Herring, Does DiversityPay?: Race, Gender, and the Business Case for

Diversity, 74 AM. SOCIOLOGICAL REV. 208, 219(2009).8

8See also, e.g., Scott E. Page, The Difference: How the Power ofDiversity Creates Better Groups, Firms, Schools, and Societies(2007) (collecting studies demonstrating that diversity leads tomore productive and innovative solutions); Stanley F. Slater et

al., The Business Case for Commitment to Diversity, 51BUSINESS HORIZONS 201 (2008) (concluding that a truecommitment to diversity throughout an organization fostersbetter board decisions, increases connections with customers,


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Thus, it continues to be true that as the Courtobserved in Grutter the benefits of diversity in theuniversity setting are not theoretical but real. 539U.S. at 330-31. Amicihave found, through practicalexperience, that a workforce trained in a diverseenvironment is important to their business success and that a critical means of obtaining a properlyqualified group of employees is through diversity ininstitutions of higher education, which recruit and

instruct the best qualified minority candidates andcreate an environment in which students of allbackgrounds can meaningfully expand theirhorizons.

3. Amicis own actions attest to the importancethey place on a workforce trained in a diverseenvironment. Amici have devoted substantialfinancial and human resources to create andmaintain a diverse workforce efforts that have only

and leads to innovation); Lisa H. Nishii & David M. Mayer, Ctr.for Advanced Human Res. Studies, Cornell Univ., Paving thePath to Performance: Inclusive Leadership Reduces Turnover

in Diverse Work Groups, Feb. 2010 (emphasizing theimportance of managers who are adept at leveraging thebenefits of diversity); Marcus Robinson et al., Business Case forDiversity with Inclusion, WetWare, Inc., 2003 (explaining theimportance of diversity in business to respond to increasinglydiverse customer bases); Carol Hymowitz, The New Diversity,WALL ST. J., Nov. 14, 2005, at R1 (describing how PepsiCo,IBM, and Harley-Davidson are leveraging diverse workforces tocome up with new ideas to attract a more diverse customer

base); Jill Dutt, Taking an Engineers Approach at LockheedMartin, WASH. POST, May 1, 2006, at D1 (describing howLockheed Martin has created a diversity maturity model tofoster diversity in order to compete better).


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intensified in the years since this Court decidedGrutter. These extensive efforts are part ofamiciscore values, are implemented and overseen by seniormanagers, and are supported at the very highestlevels of each company participating in this brief.

Amiciare hiring an increasingly diverse group ofemployees. Amici have also intensified their owninternal diversity programs and their efforts to

enhance the success of minority students andemployees. Each amicus has an internal diversityprogram and works to support minority employees.

Amicialso partner with universities like UT to reachout to aid minority students.

For example, amicusMerck drew on the diversityof its employees in order to broaden access toGardasil, a vaccine that protects against the virusthat causes cervical cancer. Recognizing that somepopulations might not use the vaccine for religiousreasons, Merck sought the assistance of its Muslimemployees in obtaining Halal certification in order toimprove its acceptability and use under Islamicguidelines. Merck has formed and supported manygroups of employees who bring their specific cultural,ethnic, religious, gender and other demographicknowledge and understanding to bear on businesschallenges and opportunities.

In short, amici are dedicated to promotingdiversity as an integral part of their business,culture, and planning. Amici need the talent,creativity, and flexibility of a workforce that is asdiverse as the world around them.


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But amici cannot reach that goal on their own.University admission decisions, and the educationand training to which a student gains access whenadmitted to UT and similar institutions, play acrucial role in determining who will ultimately bequalified for the positions amici need to fill. Whenamicimake decisions about hiring and promotion, itis critical that they be able to draw from a superiorpool of candidates both minority and non-minority

who have realized the many benefits of diversity inhigher education. There can be no question that[t]he Nations future does indeed continue todepend[] upon leaders including business leaders

trained through wide exposure to the ideas andmores of students as diverse as this Nation of manypeoples. Bakke, 438 U.S. at 312-13 (opinion ofPowell, J. (internal quotation marks omitted)).

Determining whether sufficient diversity hasbeen achieved on campus to create the kind ofeducational environment that is so critical tograduates and amicis success is not an exactscience. Amicirecognize that strict scrutiny must beapplied in assessing the constitutionality of thespecific practices employed at UT. That is a detailed

assessment that amici here are not in a position tomake. However, amicido feel compelled to commenton certain troubling aspects of Petitioners argument


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that, if accepted by the Court, could generally renderthe strict-scrutiny test fatal in fact in the context ofthe pursuit of diversity in higher education.

The main problems with Petitioners analysis,from amicis point of view, flow from the fact thatPetitioner places heavy reliance on the propositionthat there is no need for any admissions policyaddressing diversity when a substantial percentage

of minority applicants have been admitted in therecent past. Petr Br. at 35. It is important to amicithat diversity in educational institutions is nottreated purely as a one-dimensional, top-levelnumbers game. Focusing solely on the percentagesof minorities in an entering class, and determiningthat a certain percentage is necessarily enough as amatter of law, smacks of the kind of quota systemthat this Court so roundly rejected in Bakke andGrutter.

Moreover, numbers alone do not indicate whetherstudents on campus are receiving the benefits thatmake diversity such a compelling interest. SeeFisher v. Univ. of Texas at Austin, 631 F.3d 213, 246(5th Cir. 2011). Indeed, the numbers required toreach a critical mass may well be different atdifferent institutions. Amiciare concerned with thesuggestion that there is some numerical benchmarkthat is automatically sufficient and permanentlybars any consideration of race (along with applicantsother personal characteristics) in admissions

decisions an approach that amici believe wouldundercut the compelling diversity-relatedadvantages discussed above. See Grutter, 539 U.S.


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at 330 (explaining that the Law Schools concept ofcritical mass is defined by reference to theeducational benefits that diversity is designed toproduce).

For instance, overall numbers do not revealwhether students enrolled in particular subsets ofthe university are realizing the educational benefitsof diversity. A university may have a college of

business or a school of engineering from which someof the amicis recruiting efforts are particularly likelyto draw, see, e.g.,IBM Amicus Br. at 9 (Grutter, No.02-241) and it may be that there will be no criticalmass of underrepresented minorities within thoseareas of study unless administrators deploy anadmissions plan that considers race along withapplicants other personal characteristics. Withoutsuch a critical mass, none of the business orengineering students whether they are minoritiesor not are likely to have the kinds of diversity-

related academic experiences that amicibelieve willhelp prepare them for success in the corporate world.The Court should for these reasons reject theargument that the only proper base for assessingdiversity is the student body. Petr Br. at 19.

In addition, there must be some room for auniversity to decide that a particular approach toadmissions is no longer workable for educationalreasons and to take a different tack. It cannot be, asPetitioner argues, see, e.g., Petr Br. 35-38, 56, that a

university that has achieved certain numericalbenchmarks of minority attendance under oneapproach is thereby foreclosed from ever approaching


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admissions in a different way even a way that theuniversity legitimately believes will better serve itseducational goals and is equally or more likely tocreate a truly diverse student body.

Finally, a focus solely on numbers is problematicwhen the numbers in question treat allunderrepresented minorities as one undifferentiatedgroup, rather than distinct individuals with different

experiences and perspectives. That runs counter tothis Courts rejection of such reductionist views ofrace. See, e.g., Parents Involved in Cmty. Schs. v.Seattle Sch. Dist. No. 1, 551 U.S. 701, 723 (2007)(plurality op.) (rejecting a limited notion ofdiversity where race is viewed as a dichotomybetween white/nonwhite or black/other inevaluating plans to increase diversity in schools);Gratz v. Bollinger, 539 U.S. 244, 277 (2003)(OConnor, J., concurring) (stating that the type ofindividualized consideration the Courts opinion in

Grutter. . . requires includes the contribution eachindividuals race or ethnic identity will make to thediversity of the student body, taking into accountdiversity within and among all racial and ethnicgroups). And those kinds of statistics simply maynot tell the whole story of how students actuallyexperience their university environment, and howthat environment prepares them for the varieddemands of their future careers.

For all of these reasons, it is amicis considered

view that Petitioners rigid, quota-like approach tostrict-scrutiny analysis will prevent universities frompursuing narrowly tailored admissions policies that


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ensure their graduates actually emerge with theexperiences and training that amici value. Amicifind an analogy in their own hiring decisions. Thosedecisions are not based solely on a studentsacademic achievement relative to others at his or herparticular educational institution, but take intoaccount the broader applicant pool and the manydifferent ways that a particular candidate might beable to contribute to the organization. Amiciare not

attempting to reach some quota of minorityemployees; they would not be satisfied, for instance,by simply hiring the top ten percent of thegraduating class from a range of diverse colleges,even if they could thereby capture a certain numberof diverse employees. Rather, amici seek to hirethe most qualified group of employees, while takinginto account all of the characteristics of thoseemployees that will enrich the amicis workplacesand strengthen their businesses.

In short, amicis approach to their own hiring isnot driven by a desire to reach some absolutenumber of minority employees. Similarly, a measureof flexibility at the point of university admissions (ifpermitted under state law) is important to ensurethat universities achieve true and meaningfuldiversity, not simply some threshold overall numberof minority students and do so in a way consistentwith their overarching educational objectives.

In the course of applying strict scrutiny, this

Court has previously emphasized the need for suchflexibility, and amici respectfully suggest that theCourt should reaffirm that principle in this case. As


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Justice Powell explained, the admissions processmust be flexible enough to consider all pertinentelements of diversity in light of the particularqualifications of each applicant, and to place them onthe same footing for consideration, although notnecessarily according them the same weight.Bakke, 438 U.S. at 317 (opinion of Powell, J.). TheGrutter Court agreed: truly individualizedconsideration demands that race be used in a

flexible, nonmechanical way. 539 U.S. at 334; seealso id. at 336-37 (stating that a universitysadmissions program must remain flexible enough toensure that each applicant is evaluated as anindividual and not in a way that makes anapplicants race or ethnicity the defining feature ofhis or her application); id. at 392-93 (Kennedy, J.,dissenting) (individual assessment must besafeguarded through the entire process); ParentsInvolved, 551 U.S. at 722 (plurality op.).

The Grutter Court also emphasized that, whilestrict scrutiny requires a rigorous examination of auniversitys admissions practices, such scrutinycannot be fatal in fact. Grutter, 539 U.S. at 326(quoting Adarand Constructors, Inc. v. Pea, 515U.S. 200, 237 (1995)). In order to ensure that thegovernment achieves its compelling interest inenrolling a diverse group of university students,there must be circumstances in which admissionsplans that involve individualized consideration of allof an applicants many dimensions including race pass constitutional muster. Rather than aclassification that tells each student he or she is to


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be defined by race, Parents Involved, 551 U.S. at789 (Kennedy, J., concurring in part and concurringin the judgment), such individualized review treatsrace as one of many factors that may provide a fullerunderstanding of an individual applicant and whathe or she can bring to the table to enhance auniversitys educational environment and,ultimately, contribute to businesses like the amiciand to society as a whole. See Grutter, 539 U.S. at

337.

For the foregoing reasons, amicirespectfully urgethat the Court reaffirm that diversity in highereducation is a compelling state interest, and resistcalls to adopt a form of strict scrutiny that wouldmake meaningful pursuit of that interest impossiblein fact.

Respectfully submitted,

DAVID W.DEBRUINCounsel of Record

ELAINE J.GOLDENBERGMATTHEW S.HELLMANELIZABETHA.EDMONDSONCAROLINE D.LOPEZJENNIFERV.YEHJENNER &BLOCK LLP1099 New York Avenue, NWWashington, DC 20001

(202) [email protected]

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