Amicus Curiae Brief to U.S. Supreme Court in Fisher v. University of ...

No. 11-345IN THESupreme Court of the United States_________ABIGAIL NOEL FISHER,Petitioner,v.UNIVERSITY OF TEXAS AT AUSTIN, et al.,Respondents._________On Writ of Certiorarito the United States Court of Appealsfor the Fifth Circuit_________BRIEF OF AMICI CURIAE AMERICANCOUNCIL ON EDUCATION AND 39 OTHERHIGHER EDUCATION ORGANIZATIONSIN SUPPORT OF RESPONDENTS_________ADA MELOYGeneral CounselAmerican Councilon EducationOne Dupont Circle, NWWashington, DC 20036(202) 939-9300MARTIN MICHAELSON *ALEXANDER E. DREIERCATHERINE E. STETSONELIZABETH B. MEERSDAVID M. GINNHogan Lovells US LLP555 Thirteenth St., NWWashington, DC 20004(202) 637-5600martin.michaelson@hoganlovells.com* Counsel of Record Counsel for Amici Curiae

AMICI ON THIS BRIEFAmerican Council on EducationAmerican Anthropological AssociationAmerican Association of Colleges of PharmacyAmerican Association of Community CollegesAmerican Association of State Colleges and UniversitiesAmerican Association of University ProfessorsAmerican College Personnel AssociationAmerican Indian Higher Education ConsortiumAmerican Speech-Language-Hearing AssociationAssociation of American Colleges and UniversitiesAssociation of American UniversitiesAssociation of Catholic Colleges and UniversitiesAssociation of Community College TrusteesAssociation of Governing Boards of Universities and CollegesAssociation of Jesuit Colleges and UniversitiesAssociation of Public and Land Grant UniversitiesAssociation of Research LibrariesAssociation to Advance Collegiate Schools of BusinessCollege and University Professional Association for HumanResourcesThe Common ApplicationCouncil for Advancement and Support of EducationCouncil for Christian Colleges and UniversitiesCouncil for Higher Education AccreditationCouncil for Opportunity in EducationCouncil of Graduate SchoolsCouncil of Independent CollegesCouncil on Social Work EducationEDUCAUSEGraduate Management Admissions CouncilGroup for the Advancement of Doctoral Education in Social WorkNational Action Council for Minorities in Engineering, Inc.National Association for Equal Opportunity in Higher EducationNational Association of College and University Business OfficersNational Association of Diversity Officers in Higher EducationNational Association of Independent Colleges and UniversitiesNational Association of Student Financial Aid AdministratorsNational Collegiate Athletic AssociationSouthern Association of Colleges and Schools Commission onCollegesStudent Affairs Administrators in Higher EducationThurgood Marshall College Fund

TABLE OF CONTENTSPageTABLE OF AUTHORITIES ...................................... iiiSTATEMENT OF INTEREST .................................... 1SUMMARY OF ARGUMENT ..................................... 2ARGUMENT ............................................................... 3I. THE INTEREST IN STUDENTDIVERSITY IS EVEN MORECOMPELLING NOW THAN IT WAS ADECADE AGO ................................................... 3A. Student Diversity Is A CompellingInterest .......................................................... 4B. Student Diversity Is AcutelyNeeded Today ............................................... 81. Students Must Be Equipped ToNavigate An InterconnectedWorld ....................................................... 82. The Educational BenefitsDiversity Confers RemainEssential To Higher Education ............ 11II. HIGHER EDUCATIONINSTITUTIONS NEEDFLEXIBILITY TO DEFINE ANDATTAIN DIVERSITY ...................................... 17A. American Higher EducationThrives On Pluralism ................................. 18(i)

TABLE OF CONTENTS—Continued1. American Higher Education IsCharacterized By The Variety OfInstitutional Missions ........................... 182. The Government HasRepeatedly Endorsed The ValueOf A Decentralized HigherEducation System In WhichInstitutions Pursue TheirRespective Missions In TheirRespective Ways .................................... 20B. Each Institution Must DefineDiversity In A Manner ConsistentWith Its Mission ......................................... 28C. Properly Conducted Holistic,Individualized Review Tailored ToInstitutional Mission Is A LawfulAnd Effective Means To AttainDiversity...................................................... 31CONCLUSION .......................................................... 33ADDENDUM: AMICI ON THIS BRIEF .................. 1a(ii)

TABLE OF AUTHORITIESPage(s)CASES:Board of Curators of Univ. of Mo. v.Horowitz, 435 U.S. 78 (1978) ............... 7, 22, 24Board of Educ., Island Trees Union FreeSch. Dist. No. 26 v. Pico,457 U.S. 853 (1982)......................................... 14Christian Legal Soc’y v. Martinez,130 S. Ct. 2971 (2010) .................................... 30DeRolph v. State,677 N.E.2d 733 (Ohio 1997) ........................... 14Edwards v. California Univ. of Penn.,156 F.3d 488 (3d Cir. 1998) .............................. 7Ewing v. Bd. of Regents ofUniv. of Mich.,742 F.2d 913 (6th Cir. 1984) .......................... 23Fisher v. Univ. of Tex.,631 F.3d 213 (5th Cir. 2011) .......................... 32Fisher v. Univ. of Tex.,644 F.3d 307 (5th Cir. 2011) .......................... 29Grutter v. Bollinger,539 U.S. 306 (2003)................................. passimHamilton v. Regents of Univ. of Cal.,293 U.S. 245 (1934)................................... 22, 25Johnson v. California,543 U.S. 499 (2005)......................................... 31(iii)

TABLE OF AUTHORITIES—ContinuedKeyishian v. Board of Regents ofUniv. of N.Y.,385 U.S. 589 (1967)......................................... 28M’Culloch v. Maryland,17 U.S. 216 (1819) .......................................... 21Mueller v. Allen,463 U.S. 388 (1983)......................................... 14Parents Involved in Community Schools v.Seattle School Dist. No. 1,551 U.S. 701 (2007)................................... 30, 33Plyler v. Doe,457 U.S. 202 (1982)......................................... 15Regents of Univ. of Cal. v. Bakke,438 U.S. 265 (1978)............................. 4, 5, 7, 23Regents of Univ. of Mich. v. Ewing,474 U.S. 214 (1985)................................. passimSweezy v. New Hampshire,354 U.S. 234 (1957)............................. 22, 23, 28Taylor v. Columbian Univ.,226 U.S. 126 (1912)................................... 21, 22Trustees of Dartmouth College v.Woodward,17 U.S. 518 (1819) .............................. 20, 21, 25United States v. Lopez,514 U.S. 549 (1995)......................................... 19(iv)

TABLE OF AUTHORITIES—ContinuedUniversity v. People,99 U.S. 309 (1878) .......................................... 21Washington Univ. v. Rouse,75 U.S. 439 (1869) .......................................... 21STATUTES:20 U.S.C. §§ 1001-1002 ........................................ 2720 U.S.C. § 1232a ................................................. 28Morrill Land-Grant Act, 12 Stat. 503 (1862) ...... 25Pub. L. No. 89-329, 79 Stat. 1219 ........................ 26Pub. L. No. 92-318, 86 Stat. 235 .......................... 27Pub. L. No. 95-561, 92 Stat. 2143 ........................ 27Pub. L. No. 98-511, 98 Stat. 2366 ........................ 27Pub. L. No. 99-498, 100 Stat. 1268 ...................... 27Pub. L. No. 102-325, 106 Stat. 448 ...................... 27Pub. L. No. 105-244, 112 Stat. 1581 .................... 27Pub. L. No. 110-315, 122 Stat. 3078 .................... 27LEGISLATIVE:H.R. Rep. No. 78-1418 (1944) .............................. 26OTHER AUTHORITIES:1 James Kent, Commentaries on AmericanLaw 416-417 (O.W. Holmes ed.,12th ed. 1873) ................................................. 21(v)

TABLE OF AUTHORITIES—Continued1 Richard Hofstadter and Wilson Smitheds., American Higher Education:A Documentary History 157 (1961) ................ 24A.L. Antonio et al., Approaching DiversityWork in the University: Lessons from anAmerican Context .............................................. 5Alexander Meikeljohn, Education BetweenTwo Worlds (1942) .......................................... 15American Council on Educ., U.S. BranchCampuses Abroad (Sept. 2009) ........................ 9Arthur H. Compton, Foreword toHuston Smith, The Purposes of HigherEducation (1955) ............................................. 10As the World Turns: Implications of GlobalShifts in Higher Education for Theory,Research and Practice(Walter R. Allen et al. eds. 2012) ..................... 5Axel Dreher, KOF Swiss EconomicInstitute, KOF Index of Globalization(Mar. 16, 2012) .................................................. 8Benjamin Franklin, Proposals Relating tothe Education of Youth in Pennsylvania(1749, reprint 1931) ........................................ 16Carl F. Kaestle, Pillars of the Republic:Common Schools and American Society1780-1860 (Eric Foner ed. 1983) .................... 16(vi)

TABLE OF AUTHORITIES—ContinuedCarl Swisher, American ConstitutionalDevelopment (1943) ......................................... 25Carnegie Comm’n on Higher Educ., Reformon Campus: Changing Students,Changing Academic Programs (1972) ........... 31Chester E. Finn, Jr., Scholars, Dollars andBureaucrats (1978) ......................................... 27Civic Learning and DemocraticEngagement, A Crucible Moment:College Learning and Democracy’sFuture (2012) .................................................. 14David J. Barron, The Promise of Cooley’sCity: Traces of Local Constitutionalism,147 U. Pa. L. Rev. 487 (1999) ......................... 14Derek Bok, Higher Learning (1986) .................... 20Diane N. Ruble, A Phase Model ofTransitions: Cognitive and MotivationalConsequences, 26 Advances inExperimental Social Psych. 163 (1994) ......... 12Earle D. Ross, Democracy’s College: TheLand-Grant Movement in the FormativeStage (1942) .................................................... 26Edward H. Reisner, Antecedents to theFederal Act Concerning Education,11 Educational Record 196 (July 1930) ......... 24(vii)

TABLE OF AUTHORITIES—ContinuedF.W. Garforth, Educative Democracy: JohnStuart Mill on Education in Society(1980) ............................................................... 12Frank Donovan ed., The John AdamsPapers 182 (1965) ........................................... 16Henry Rosovsky, Highest Education,197 The New Republic 13 (1987) ................... 19Huston Smith, The Purposes of HigherEducation (1955) ............................................. 11J.H.C. Newman, The Idea of a University(M.J. Svaglic ed., Univ. of Notre DamePress 1982) (1873) .......................................... 11Jean Piaget, Piaget’s Theory, in1 Carmichael’s Manual of ChildPsychology (P.H. Mussen ed.,3d ed. Wiley 1970) .......................................... 12John Dewey, Democracy andEducation (Free Press 1966) (1916) ............... 16John S. Brubacher & Willis Rudy, HigherEducation in Transition: A History ofAmerican Colleges and Universities (4thed. 1997) (1958) ............................................... 20John Stuart Mill, On Liberty, in ThreeEssays 134 (Oxford Univ. Press 1975)(1859) ............................................................... 15(viii)

TABLE OF AUTHORITIES—ContinuedJon Bruner, American Leadership inScience, Measured in Nobel Prizes(Oct. 5, 2011) ................................................... 18Jonathan R. Cole, The Great AmericanUniversity (2009) ............................................ 18Lee C. Bollinger, Why Diversity Matters,Chronicle of Higher Education(June 1, 2007) ................................................. 10Martin Trow, Federalism in AmericanHigher Education, in Higher Learningin America 1980-2000 (Arthur Levineed., 1993) ................................................... 20, 26Menachem Wecker, Where the Fortune 500CEOs Went to School, U.S. News &World Report (May 14, 2012) ......................... 18Mitra Toossi, Labor Force Projections to2020: A More Slowly GrowingWorkforce, Monthly Labor Review(Jan. 2012) ........................................................ 8Nat’l Task Force on Civic Learning andDemocratic Engagement, A CrucibleMoment: College Learning andDemocracy’s Future (2012) ............................. 14N. Bowman, College Diversity Experiencesand Cognitive Development: A Meta-Analysis, 80 Review of EducationalResearch (2010) ................................................ 5(ix)

TABLE OF AUTHORITIES—ContinuedN. Denson & M.J. Chang, Racial DiversityMatters: The Impact of Diversity-Related Student Engagement andInstitutional Context,46 American Educational ResearchJournal 322 (2009) ............................................ 5N. Gottfredson et al., Does Diversity atUndergraduate Institutions InfluenceStudent Outcomes?, 1 Journal ofDiversity in Higher Education 80 (2008) ......... 6Noah Webster, On the Education of Youthin America (1790), in Essays onEducation in the Early Republic(Frederick Rudolph ed., 1965) ........................ 16Organization for Econ. Cooperation & Dev.,Education at a Glance: OECDIndicators (2011) ............................................. 18Peter B. Pufall, The Development ofThought: On Perceiving and Knowing,in Robert Shaw & John Bransford,Perceiving, Acting, and Knowing:Toward an Ecological Psychology (1977) ....... 12Press Release, United States CensusBureau, Most Children Younger ThanAge 1 Are Minorities (May 17, 2012) ................ 8Raymond V. Gilmartin, Diversity andCompetitive Advantage at Merck,Harv. Bus. Rev. (Jan. – Feb. 1999) ................ 10(x)

TABLE OF AUTHORITIES—ContinuedRobert M. Hutchins, The Higher Learningin America (Transaction Publishers1995) (1936) .................................................... 11Robert Shaw & John Bransford, Perceiving,Acting, and Knowing: Toward anEcological Psychology (1977) .......................... 12Roy J. Honeywell, Educational Works ofThomas Jefferson (1931) ................................ 25S. Hurtado & L. D’Angelo, LinkingDiversity and Civic-Minded Practiceswith Student Outcomes: New Evidencefrom National Surveys,98 Liberal Education 2 (2012) .......................... 5Sabrina Tavernise, Whites Account forUnder Half of Births in U.S.,N.Y. Times, May 17, 2012 ................................ 8Scott Jaschik, International Campuses onthe Rise, Inside Higher Ed,Sept. 3, 2009 ..................................................... 9Shanghai Jiao Tong University, AcademicRanking of World Universities: 2011 ............. 18Uri Friedman & Kedar Pavgi, Head of theClass?, Foreign Policy (Nov. 18, 2011) ........... 18U.S. Dep’t of State & Institute of Int’lEduc., Study Abroad by U.S. StudentsRose in 2009/10 with More StudentsGoing to Less Traditional Destinations(Nov. 14, 2011) .................................................. 9(xi)

TABLE OF AUTHORITIES—ContinuedU.S. Dep’t of State, Report of the VisaOffice, Classes of Nonimmigrants IssuedVisas (2010) ....................................................... 9William G. Bowen & Derek Bok, The Shapeof the River (1998) ........................................... 10William G. Bowen et al., Equity andExcellence in American HigherEducation (2005) ............................................. 18(xii)

IN THESupreme Court of the United States_________No. 11-345_________ABIGAIL NOEL FISHER,Petitioner,v.UNIVERSITY OF TEXAS AT AUSTIN, et al.,Respondents._________On Writ of Certiorarito the United States Court of Appealsfor the Fifth Circuit_________BRIEF OF AMICI CURIAE AMERICANCOUNCIL ON EDUCATION AND 39 OTHERHIGHER EDUCATION ORGANIZATIONS INSUPPORT OF RESPONDENTS_________STATEMENT OF INTEREST 1Amici are 40 associations of colleges, universities,educators, trustees, and other representatives ofhigher education in the United States. Amicirepresent public, independent, large, small, urban,rural, denominational, non-denominational,graduate, and undergraduate institutions andfaculty. American higher education institutions1 No party or counsel for a party authored or paid for thisbrief in whole or in part, or made a monetary contribution tofund the brief’s preparation or submission. No one other thanamici or their members or counsel made a monetarycontribution to the brief. All parties filed blanket amicusconsent letters.

2enroll over 20 million students. For decades amicihave worked to achieve student diversity.Amicus American Council on Education (ACE)represents all higher education sectors. Itsapproximately 1800 members include a substantialmajority of United States colleges and universities.Founded in 1918, ACE seeks to foster high standardsin higher education, believing a strong highereducation system to be the cornerstone of ademocratic society. Among its initiatives, ACE had amajor role in establishing the Commission onMinority Participation in Education and AmericanLife, chaired by former Presidents Ford and Carter,which issued One-Third of a Nation (1988), a reporton minority matriculation, retention, andgraduation. ACE regularly contributes amicus briefson issues of importance to the education sector.The Addendum contains information on the otheramici on this brief.SUMMARY OF ARGUMENTA diverse student body is essential to theeducational objectives of colleges and universities.This Court held in Grutter v. Bollinger, 539 U.S. 306(2003), that obtaining the educational benefits thatflow from a diverse student body is a compellinggovernmental interest that justifies narrowlytailored consideration of race in college admissions.The holding in Grutter is even more urgent todaythan it was in 2003. Higher education institutionsmust equip their students to work and live in aninterconnected world, stimulate students’ interest inthe new and unfamiliar, and prepare them tounderstand and account for differences. Diversity

3thus remains a compelling interest in highereducation.Diversity is not a one-size-fits-all concept,however. Each higher education institution mustdefine student body diversity in a manner consistentwith its educational mission. As the Courtrecognized in Grutter, when an institutiondetermines its educational goals—including itsconception of diversity—it makes an educationaljudgment that merits deference. Courts may rightlyscrutinize the means chosen to pursue diversity, butthey defer to educators’ experience and expertise indetermining what sort of diversity, and how much,their institution needs.Petitioner would depart from this settled analysisand invite judicial superintendence of institutions’educational objectives. Rather than focus analysison whether the means chosen fit the articulatededucational goals, she would change the focus ofjudicial scrutiny to the goals themselves—askingcourts to supervise and supersede educators’ contextspecificeducational judgments. That approachwould be at odds with the longstanding beneficialtradition of governmental forbearance in Americanhigher education, and should be rejected.ARGUMENTI. THE INTEREST IN STUDENTDIVERSITY IS EVEN MORECOMPELLING NOW THAN IT WAS ADECADE AGO.This Court held in Grutter that obtaining theeducational benefits that flow from a diverse studentbody is a compelling interest that can justify the

4narrowly tailored consideration of race in collegeadmissions. That holding was prescient. In anincreasingly interconnected world, diversity inhigher education is now more urgent than ever.A. Student Diversity Is A CompellingInterest.This Court has long recognized that the EqualProtection Clause does not categorically prohibitcolleges and universities from considering race inadmissions. In Regents of the University ofCalifornia v. Bakke, the Court reversed an injunctionbarring the State from “ever considering the race ofany applicant.” 438 U.S. 265, 320 (1978) (opinion ofthe Court). Higher education institutions, the Courtexplained, have a “substantial interest thatlegitimately may be served by a properly devisedadmissions program involving the competitiveconsideration of race and ethnic origin.” Id.The Court elaborated twenty-five years later inGrutter. At issue was the University of MichiganLaw School’s use of race as a means to “obtain[ ] ‘theeducational benefits that flow from a diverse studentbody.’ ” 539 U.S. at 328 (citation omitted). The LawSchool explained that student body diversity was “ ‘ofparamount importance in the fulfillment of itsmission.’ ” Br. for Respondents in No. 02-241, at 28(quoting Bakke, 438 U.S. at 313 (opinion of Powell,J.)). A racially integrated learning environmenthelped its students “learn how to bridge racialdivides, work sensitively and effectively with peopleof different races, and simply overcome the initialdiscomfort of interacting with people that are verydifferent from themselves that is a hallmark ofhuman nature.” Id. at 25. Those educational

5benefits, moreover, could be attained only through arace-conscious admissions policy. The Law Schoolhad considered a number of race-neutral means ofassembling a racially diverse student body, butconcluded that all were “demonstrably unworkableor would substitute a different institutional missionfor the one that the Law School has chosen.” Id. at33.This Court upheld the Law School’s admissionspolicy and endorsed the pursuit of diversity in highereducation. Echoing Justice Powell’s Bakke opinion,the Court held that higher education institutionshave a compelling interest in “obtaining theeducational benefits that flow from a diverse studentbody.” Grutter, 539 U.S. at 343; see also Bakke, 438U.S. at 314 (opinion of Powell, J.) (“the interest ofdiversity is compelling in the context of a university’sadmissions program”). Those benefits, the Courtrecognized, are “substantial.” Grutter, 539 U.S. at330. “[N]umerous studies show that student bodydiversity promotes learning outcomes, * * * ‘betterprepares students for an increasingly diverseworkforce and society, and better prepares them asprofessionals.’ ” Id. (citation omitted). 2 Diversity2 Research findings that support this conclusion have grownmore robust since Grutter was decided. See, e.g., A.L. Antonioet al., Approaching Diversity Work in the University: Lessonsfrom an American Context, in As the World Turns: Implicationsof Global Shifts in Higher Education for Theory, Research andPractice 371–401 (Walter R. Allen et al. eds. 2012); S. Hurtado& L. D’Angelo, Linking Diversity and Civic-Minded Practiceswith Student Outcomes: New Evidence from National Surveys,98 Liberal Education 2 (2012); N. Bowman, College DiversityExperiences and Cognitive Development: A Meta-Analysis, 80Review of Educational Research 4 (2010); N. Denson & M.J.Chang, Racial Diversity Matters: The Impact of Diversity-

6also promotes cross-racial understanding, helps tobreak down stereotypes, and enables students tobetter understand those who are different. Id. Toseek these benefits through diversity is properlyunderstood to be at the core of institutions’ academicmission. Id. at 329.As the Grutter Court observed, the educationalbenefits of diversity are “not theoretical but real.”Id. at 330. American businesses emphasized that“the skills needed in today’s increasingly globalmarketplace can only be developed through exposureto widely diverse people, cultures, ideas, andviewpoints.” Id. Retired military leaders explainedthat national security depends on the ability to traina “highly qualified, racially diverse officer corps.” Id.at 330-331. And “[e]ffective participation bymembers of all racial and ethnic groups in the civiclife of our Nation is essential if the dream of oneNation, indivisible, is to be realized.” Id. at 332.Although the Grutter Court canvassed theevidence demonstrating the benefits of diversity inhigher education, it did not purport to weigh thatevidence de novo. Such an exercise would have beenmisguided, for judges are ill-equipped to assess themerits of particular educational approaches. SeeRegents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226(1985) (courts are not “suited to evaluate thesubstance of the multitude of academic decisions thatare made daily by faculty members of publicRelated Student Engagement and Institutional Context, 46American Educational Research Journal 322 (2008); N.Gottfredson et al., Does Diversity at Undergraduate InstitutionsInfluence Student Outcomes?, 1 Journal of Diversity in HigherEducation 80 (2008).

7educational institutions—decisions that require ‘anexpert evaluation of cumulative information and[are] not readily adapted to the procedural tools ofjudicial or administrative decisionmaking’ ” (citationomitted)). The universities themselves have the“experience and expertise” to make educationaljudgments. Grutter, 539 U.S. at 333. Accordingly,the Court deferred to the Law School’s judgment thatattaining student body diversity was essential to itseducational mission. Id. at 328.Judicial deference to institutions’ educationaljudgments was particularly appropriate in light ofthe “special niche” universities occupy in theAmerican constitutional tradition. Id. at 329. Theconstitution protects universities’ freedom to defineand pursue educational goals. See, e.g., Ewing, 474U.S. at 225; Board of Curators of Univ. of Mo. v.Horowitz, 435 U.S. 78, 96 n.6 (1978); Bakke, 438 U.S.at 319 n.53 (opinion of Powell, J.). And academicfreedom extends beyond scholarship to governanceby the academies themselves, including control overthe composition of the student body. Grutter, 539U.S. at 329 (citing Bakke, 438 U.S. at 312 (opinion ofPowell, J.)); see also Edwards v. California Univ. ofPenn., 156 F.3d 488, 492 (3d Cir. 1998) (Alito, J.).Constitutionally informed principles of academicfreedom “provide a basis for the Court’s acceptance ofa university’s considered judgment that racialdiversity among students can further its educationaltask, when supported by empirical evidence.”Grutter, 539 U.S. at 387-388 (Kennedy, J.,dissenting). These time-honored principles buttressGrutter’s core holding: Obtaining the educationalbenefits that flow from student body diversity is a

8compelling interest that justifies the narrowlytailored use of race in college admissions decisions.B. Student Diversity Is Acutely NeededToday.1. Students Must Be Equipped ToNavigate An Interconnected World.Developments since this Court decided Grutterunderscore the key role of diversity in Americanhigher education. Today more than ever before,individuals and organizations are linked around theworld. Trade, finance, and media are internationalin scope. The ever-thickening web of economic,political, and social ties between nations makesinteraction among people of different backgroundsand cultures a common occurrence. See Axel Dreher,KOF Swiss Economic Institute, KOF Index ofGlobalization (Mar. 16, 2012).The United States is more racially and ethnicallydiverse than ever. Mitra Toossi, Labor ForceProjections to 2020: A More Slowly GrowingWorkforce, Monthly Labor Review 43 (Jan. 2012).The trend is likely to accelerate in coming years.Most American babies are non-white, and half thepopulation will be racial and ethnic minority groupmembers by mid-century. Press Release, UnitedStates Census Bureau, Most Children Younger ThanAge 1 Are Minorities (May 17, 2012); Sylvia Hurtado,Linking Diversity with the Educational and CivicMissions of Higher Education, 30 The Review ofHigher Education 185, 187 (2007). As the BrookingsInstitution’s senior demographer explained, theseprojections anticipated “the more globalizedmultiethnic country that we are becoming.” Sabrina

9Tavernise, Whites Account for Under Half of Birthsin U.S., N.Y. Times, May 17, 2012, at A1.In the last two decades, higher education itself hasbecome profoundly more global. More foreignstudents seek to study at U.S. colleges anduniversities: the State Department issued over400,000 student visas in 2010—up more than 70percent since 1992. U.S. Dep’t of State, Report of theVisa Office, Classes of Nonimmigrants Issued Visas(2010). American students increasingly desire tostudy abroad as well. “Study abroad by studentsenrolled in U.S. higher education has more thantripled over the past two decades,” and interest inless traditional destinations like India and Brazilhas dramatically increased in recent years. PressRelease, U.S. Dep’t of State & Institute of Int’l Educ.,Study Abroad by U.S. Students Rose in 2009/10 withMore Students Going to Less TraditionalDestinations (Nov. 14, 2011). Universitiesincreasingly are crossing borders—a much-noteddevelopment of the past decade. As of 2009, 78 U.S.colleges and universities had established branchcampuses abroad, located from China and Singaporeto the Middle East. Scott Jaschik, InternationalCampuses on the Rise, Inside Higher Ed, Sept. 3,2009; see also American Council on Educ., U.S.Branch Campuses Abroad (Sept. 2009).To equip them to navigate today’s and tomorrow’sinterconnected world, universities must stimulatestudents’ thirst for the new and unfamiliar. Studentbody diversity catalyzes the exploratory spirit: “Theexperience of arriving on a campus to live and studywith classmates from a diverse range of backgroundsis essential to students’ training for this new world,

10nurturing in them an instinct to reach out instead ofclinging to the comforts of what seems natural orfamiliar.” Lee C. Bollinger, Why Diversity Matters,Chronicle of Higher Education (June 1, 2007).This acquired affinity for the unfamiliar enablesstudents to contribute to economic, scientific, andsocial progress, and to function in the globaleconomy. A purpose of higher education is to equipprofessionals and business leaders to interact withdiverse customers, clients, co-workers, and businesspartners. See Raymond V. Gilmartin, Diversity andCompetitive Advantage at Merck, Harv. Bus. Rev.146 (Jan. - Feb. 1999). Students who have had scantinteraction with peers of different races andethnicities are hampered when they graduate into anation in which minorities generate more than $600billion in purchasing power, and a world that isirreversibly interdependent. As one leading businessexecutive has put it, “[o]ur success as a globalcommunity is as dependent on utilizing the wealth ofbackgrounds, skills and opinions that a diverseworkforce offers, as it is on raw materials, technologyand processes.” William G. Bowen & Derek Bok, TheShape of the River 12 (1998) (quoting Robert J.Eaton, Chairman and CEO of Chrysler Corporation).If the United States is to be the world’s economicpace-setter, colleges cannot send students into thatworld wearing blinders. So, too, in fields such aslaw, the natural sciences, and medicine, whereinternational collaboration increasingly is basic,students today must receive direct experience withpeople of different races and ethnicities. Theycannot adequately acquire it from books, and theywill sorely need it. See Arthur H. Compton,

11Foreword to Huston Smith, The Purposes of HigherEducation xiv (1955).2. The Educational Benefits DiversityConfers Remain Essential To HigherEducation.Diversity prepares students to engage with themodern world, but that is not its only benefit.Diversity serves time-honored, indispensable goals ofhigher education. It inspires students to lead “theexamined life;” it prepares them to maintain therobust democracy that is their inheritance; and itenables them to overcome barriers that separatethem from one another, divide them from the worldthey need to know, and block their intellectualdevelopment.1. A venerable purpose of higher education is tofoster “the examined life.” That is the focus ofeducators who view higher learning as desirable forits own sake, apart from its economic utility. SeeRobert M. Hutchins, The Higher Learning inAmerica (Transaction Publishers 1995) (1936);J.H.C. Newman, The Idea of a University (M.J.Svaglic ed., Univ. of Notre Dame Press 1982) (1873).These educators consider the crucial work of highereducation to be challenging students’ embeddedpreconceptions, including, often, their most deeplyheldvalues; for only by critically examining themcan students gauge rationally whether theirpreconceptions are worthy. Educators who hold thisview emphasize thinking logically, exposing fallacy,and testing assumption through rigorous questioningand dialectic, all in order to develop students’ powersof reason.

12Diversity contributes vitally to the process oflearning, on which the powers of reason depend. Aprecept of developmental psychology is that we learnby formulating, revising, and refining conceptions ofthe world each time we encounter new facts, beliefs,experiences, and viewpoints. Peter B. Pufall, TheDevelopment of Thought: On Perceiving andKnowing, in Robert Shaw & John Bransford,Perceiving, Acting, and Knowing: Toward anEcological Psychology 173-174 (1977). Faced withnew information, students either assimilate it to fitthe existing conception, or revise the conception toaccommodate the new information. This“disequilibration,” as Jean Piaget called it, and thesubsequent restoration of cognitive balance, forcelearners to refine their thinking. Piaget taught that“disequilibration” experiences have greatest impactwhen they come from “social interaction.” JeanPiaget, Piaget’s Theory, in 1 Carmichael’s Manual ofChild Psychology (P. H. Mussen ed., 3d ed. Wiley1970). A student, confronted by a peer who has anew or unexpected way of looking at the world,meets that perspective as an equal, and can exploreand absorb it more fully than if merely informed of itin, for example, a lecture. See, e.g., Diane N. Ruble,A Phase Model of Transitions: Cognitive andMotivational Consequences, 26 Advances inExperimental Social Psych. 163, 171 (1994). Collegesand universities supply and catalyze “that collisionwhich is obtained only in society and by which aknowledge of the world and its manners is bestacquired.” F.W. Garforth, Educative Democracy:John Stuart Mill on Education in Society 164 (1980)(citing David Ricardo).

13These bedrock principles of developmentalpsychology, to which educators at all levelssubscribe, teach that exposing students to an arrayof peer life experiences and perspectives is critical tolearning. The familiar is less valuable; it tendsmerely to reinforce preconception. But the new anddifferent are food for intellectual growth. Studentdiversity provides all learners opportunities todevelop their intellects, by exposure to increasinglycomplex and nuanced models presented by peers.These new perspectives and experiences areespecially educational when encountered in directinteraction with a peer, because peer encountersentail the give-and-take and the emotional processesthat promote complex thinking.A diverse campus thus awakens students from thesleepy “unexamined life” of which Socrates warned.Interaction among students from diversebackgrounds exposes each to a broader array ofvantage points from which to view his or her ownvalues than does interaction among like-mindedstudents whose experiences are similar. Of course,students will not and should not always accept newperspectives and abandon their own. Highereducation teaches students to employ reason todecide for themselves which of their beliefs to retain,and which to cast aside in favor of other discoveredtruths. And students in diverse institutions oftenlearn that anticipated differences in perspectives orviews do not exist, or do not correlate as expectedwith race or ethnicity. Preconception is therebydispelled, and stereotype is thereby rebutted.2. Another purpose of higher education is toprepare students for citizenship. An educated

14citizenry is the predicate of a thriving democracy.Mueller v. Allen, 463 U.S. 388, 395 (1983); DeRolphv. State, 677 N.E.2d 733, 736 (Ohio), clarified, 678N.E.2d 886 (Ohio 1997). Colleges and universitiesseek to develop students’ capacity not only tocomprehend and reach their own informed views onissues of public import, but also to engage indeliberative aspects of democracy—to interact anddebate with other citizens, listen with an open mind,and persuade—so as to achieve collective solutions topublic problems. See Nat’l Task Force on CivicLearning and Democratic Engagement, A CrucibleMoment: College Learning and Democracy’s Future(2012). The “Constitution presupposes the existenceof an informed citizenry prepared to participate ingovernmental affairs.” Board of Educ., Island TreesUnion Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853,876 (1982) (Blackmun, J., concurring). Governmenthas long conceived higher education as an engine toready students for citizenship in “a common vessel.”See David J. Barron, The Promise of Cooley’s City:Traces of Local Constitutionalism, 147 U. Pa. L. Rev.487, 543-544 (1999).A diverse student body demonstrably preparesstudents for citizenship. Diversity of backgroundstends to broaden and give more credibility to campusdiscussion and debate, by exposing students toperspectives borne of different life experiences. Suchexposure makes students better-informed voters,jurors, school board and neighborhood associationmembers, and engaged participants in considerationof public affairs. Effective civic participationdepends on ability to work with those whosebackgrounds are different; students educated in adiverse setting are better prepared to work with

15fellow citizens from all walks of life. “Learning is notmerely the acquiring of mastery over intellectualsubject matter * * *. [I]n our schools and colleges,every citizen of the world should become ‘at home’ inthe human ‘state.’ ” Alexander Meikeljohn,Education Between Two Worlds 277 (1942).Student diversity in higher education thus takesstudentsout of the narrow circle of personal and familyselfishness * * * accustoming them to thecomprehension of joint interests, the managementof joint concerns—habituating them to act frompublic or semi-public motives and guide theirconduct by aims which unite instead of isolatingthem from one another.John Stuart Mill, On Liberty, in Three Essays 134(Oxford Univ. Press 1975) (1859).3. A third aim of higher education is to enablestudents to overcome barriers that separate themfrom one another, divide them from the world theyneed to know, and impede their intellectual growth.The developing theme of American higher educationfrom the start has been to eradicate divisions anddifferences that limit students, and thereby to teachcritical self-reflection and impart knowledge. Thattheme, perhaps more than any other, has defined therole and achievement of higher education in oursociety.“The ‘American people have always regardededucation and [the] acquisition of knowledge asmatters of supreme importance.’ ” Plyler v. Doe, 457U.S. 202, 221 (1982) (citation omitted). TheFounders saw higher education as essential to train

16the nation’s leaders who, John Adams held, shouldbe recruited not from among “the rich or the poor,the high-born or the low-born, the industrious or theidle; but all those who have received a liberaleducation.” Frank Donovan ed., The John AdamsPapers 182 (1965). They believed that educationinstitutions must build and reinforce bonds amongcitizens. Even in an era when college was accessibleonly to the well-placed few, they advocated commonschools to bring together the nation’s young andinstill a sense of national community. NoahWebster, On the Education of Youth in America(1790), in Essays on Education in the Early Republic66 (Frederick Rudolph ed., 1965); Carl F. Kaestle,Pillars of the Republic: Common Schools andAmerican Society 1780-1860, at 7 (Eric Foner ed.1983) (quoting Benjamin Rush).Removal of barriers is thus the essence ofAmerican higher education, necessary both forpersonal growth and the continued growth of theNation. “A democracy is more than a form ofgovernment; it is primarily a mode of associatedliving” that depends on “communicated experience.”John Dewey, Democracy and Education 101 (FreePress 1966) (1916). And we demand even more ofgraduates now, as the nation “break[s] down * * *barriers of class, race, and national territory,”because such a society produces “more numerous andmore varied points of contact” and “a greaterdiversity of stimuli to which an individual has torespond.” Id. Inculcating not only “an ability” butalso “an inclination” “to serve mankind, one’scountry, friends and family,” wrote Franklin, is “thegreat Aim and End of all learning.” Benjamin

17Franklin, Proposals Relating to the Education ofYouth in Pennsylvania 30 (1749, reprint 1931).II.HIGHER EDUCATION INSTITUTIONSNEED FLEXIBILITY TO DEFINE ANDATTAIN DIVERSITY.Diversity is thus inherent in achievement of basicpurposes of higher education, and appropriatediversity for a particular institution is a matter ofeducational judgment. But Petitioner would havecourts not only scrutinize the means institutions useto attain diversity—a familiar judicial role—but alsosecond-guess a university’s considered judgmentabout what type of diversity to pursue in light of itsdistinct educational mission.This Court should not displace a university’seducational judgment with a cramped prescription ofwhat kind of diversity and how much diversity aninstitution needs. To do so would represent a sharpbreak from the longstanding and salutary traditionof governmental forbearance in higher education.Institutional pluralism, the hallmark of Americanhigher education, is traceable to that forbearanceand has allowed our colleges and universities tobecome the envy of the world. To impose a singledefinition of diversity on all of higher educationwould conflict with the Court’s precedents andundermine those benefits.

18A. American Higher Education Thrives OnPluralism.1. American Higher Education IsCharacterized By The Variety OfInstitutional Missions.American higher education is preeminent in theworld and a beacon to other countries. Most of theworld’s leading universities are here. See ShanghaiJiao Tong University, Academic Ranking of WorldUniversities: 2011; William G. Bowen et al., Equityand Excellence in American Higher Education 54(2005). Our universities “produce a very highproportion of the most important fundamentalknowledge and practical research discoveries in theworld”; the scholars and scientists they train areglobal leaders in their fields. Jonathan R. Cole, TheGreat American University 5 (2010). Our nationinvests in higher education more resources perstudent than any other. Organization for Econ.Cooperation & Dev., Education at a Glance: OECDIndicators 209 (2011). Since World War II, “by awide margin” professors at American universitieshave been awarded more Nobel prizes for physics,chemistry, medicine, and economics than any othercountry. Jon Bruner, American Leadership inScience, Measured in Nobel Prizes, Forbes.com(Oct. 5, 2011). Graduates of American colleges anduniversities serve in leadership roles in this andother countries to an extent unequalled by anynation in history. E.g., Uri Friedman & KedarPavgi, Head of the Class?, Foreign Policy (Nov. 18,2011); Menachem Wecker, Where the Fortune 500CEOs Went to School, U.S. News & World Report(May 14, 2012).

19The hallmark of American higher education is itsunique pluralism. In contrast to most othercountries, in the United States the path of highereducation is not directed from a central ministry.Higher education here, allowed to evolve organically,is now characterized by a rich diversity ofinstitutions: community colleges and four-yearinstitutions, public and private universities, nonprofitand for-profit colleges, religious-affiliated andsecular institutions, vocational and liberal artscolleges. This diversity is matched by an equallybroad array of institutional missions—from oneuniversity’s commitment to religious leadership, to asmall college’s focus on the student’s self-governanceand manual labor, to a leading technology institute’sengagement with the cutting edge of physicalscience.The pluralism of American higher education fostersa healthy competition among institutions that is keyto the success of the entire system. See HenryRosovsky, Highest Education, 197 The New Republic13 (1987). Colleges and universities in the UnitedStates compete for students, faculty, and resources.They strive to distinguish themselves and to offeradvantages over their peer institutions, testing neweducational strategies and learning from oneanother. When an institution identifies a successfulstrategy, others adapt it; when an institutionstumbles, others draw lessons. Yet each institutionultimately forges its own path in light of its distinctmission. These efforts have led American collegesand universities to become, like the Statesthemselves, “laboratories for experimentation todevise various solutions where the best solution isfar from clear.” United States v. Lopez, 514 U.S. 549,

20581 (1995) (Kennedy, J., concurring). Theirinnovation drives the rich variety within Americanhigher education and is responsible for itsunparalleled success.2. The Government Has RepeatedlyEndorsed The Value Of ADecentralized Higher EducationSystem In Which Institutions PursueTheir Respective Missions In TheirRespective Ways.These features of American education did not ariseby accident. A long tradition, nearly unique amongnations, of government forbearance with respect toeducators’ judgment has figured prominently in thisvibrant system. Since the founding of the Republic,this Court, the Executive and Congress in keyjudicial and policy decisions repeatedly have opted togrant colleges and universities more, not less,authority in implementing higher educationpractices and principles. See Martin Trow,Federalism in American Higher Education, in HigherLearning in America 1980-2000 (Arthur Levine ed.,1993); John S. Brubacher & Willis Rudy, HigherEducation in Transition: A History of AmericanColleges and Universities 9 (4th ed. 1997) (1958).American universities are accorded “greater freedomfrom government supervision than higher educationenjoys in any other major country of the world.”Derek Bok, Higher Learning 14 (1986).The Court long has championed colleges’ anduniversities’ authority to make educationaljudgments. In Trustees of Dartmouth College v.Woodward, 17 U.S. (4 Wheat.) 518 (1819), forexample, the Court confronted whether a state

21possessed power to alter a college charter, and heldthat a college’s board of trustees was better suitedthan the government to govern it. Chief JusticeMarshall’s opinion acknowledged that a collegewould sometimes err, but, he explained, decisions ineducational matters should be made by theeducators, not the legislature. See 1 James Kent,Commentaries on American Law 416-417 (O.W.Holmes ed., 12th ed. 1873).The Court has proceeded in the intervening twocenturies to reinforce colleges’ and universities’authority in the educational sphere. In the decadesfollowing the Dartmouth College decision, tensionsarose between legislatures and higher educationinstitutions over questions of taxation and contract.Could a state legislature lawfully tax a universitywhose charter exempted it from tax? More than thepower to tax was at stake, as that power implicatedbroader government influence over higher education.Cf. M’Culloch v. Maryland, 17 U.S. (4 Wheat) 316,431 (1819). The seemingly unassailable argumentthat a legislature should not be able to “bargainaway forever the taxing power of the State” weighedin favor of governmental authority. WashingtonUniv. v. Rouse, 75 U.S. (8 Wall.) 439, 443 (1869)(Miller, J., dissenting). Yet the Court upheld theinstitutions’ autonomy, see, e.g., id. at 440;University v. People, 99 U.S. 309, 310, 325 (1878), inthe expectation that they would act in accordancewith their educational purposes. Washington Univ.,75 U.S. at 440-441.In the early twentieth century, questions arose thatranged from administration of a private university’sendowment, Taylor v. Columbian Univ., 226 U.S.

22126 (1912), to a public university’s discretion torequire military training, Hamilton v. Regents ofUniv. of Cal., 293 U.S. 245 (1934). In eachcircumstance the Court declined to substitute itsjudgment for that of the institution. In Taylor, forexample, the Court upheld the university’sadministration of a scholarship where the charitablepurpose was accomplished “in some degree, at least.”Id. at 135.The Court extended the principle in the 20thcentury to the interplay of constitutional due processand a university’s autonomy over its students. InBoard of Curators of the University of Missouri v.Horowitz, 435 U.S. 78 (1978), the Court held that theFourteenth Amendment Due Process Clause does notrequire a public university to provide a hearingbefore dismissing a student on academic grounds.Id. at 87. The Court weighed the interest inprotecting students from arbitrary dismissal against“harm to the academic environment” that wouldresult from “[j]udicial interposition” in universityaffairs. Id. at 90-91. Although the student’s interestwas “weighty” because she would be unable tocontinue her medical education, id. at 100 (Marshall,J., concurring in part and dissenting in part), theCourt “decline[d] to ignore the historic judgment ofeducators” that a hearing should not be required. Id.at 90 (opinion for the Court). To “enlarge the judicialpresence in the academic community,” the Courtsaid, would “risk deterioration.” The Court thusdetermined not to intervene in the academicdecision; doing so would “raise[ ] problems * * *requiring care and restraint.” Id. at 90-91.

23Forbearance with respect to educational judgmentfigured in Sweezy v. New Hampshire, 354 U.S. 234,250 (1957), where a university lecturer declined toanswer a state attorney general’s questions aboutthe content of his lectures. The inquiry, ChiefJustice Warren said, “unquestionably was aninvasion * * * of academic freedom and politicalexpression—areas in which the government shouldbe extremely reluctant to tread. * * * To impose anystrait jacket upon the intellectual leaders in ourcolleges and universities would imperil the future ofour Nation.” Id. at 250. Justice Frankfurter inconcurrence cited “ ‘four essential freedoms’ of auniversity—to determine for itself on academicgrounds who may teach, what may be taught, how itshall be taught, and who may be admitted to study.’ ”See Bakke, 438 U.S. at 312 (opinion of Powell, J.)(quoting Sweezy, 354 U.S. at 263 (Frankfurter, J.,concurring in the result)). “[W]ho may be admittedto study” is paradigmatic academic judgment. Seeid. at 312; see also id. at 405 (opinion of Blackmun,J.); id. at 366 n.42 (opinion of Brennan, J.) (“TheRegents, not the legislature, have the general rulemakingor policy-making power with regard to theUniversity.”).The Court further extended the forbearanceprinciple in Regents of the University of Michigan v.Ewing, 474 U.S. 214 (1985), upholding a publicuniversity’s dismissal of a student who failed a keyexam. The court of appeals had held the decision anarbitrary deprivation of property because plaintiffwas the only student in seven years denied anopportunity to retake the exam, and a universitypamphlet promised a retest. Id. at 221; see Ewing v.Board of Regents of Univ. of Mich., 742 F.2d 913,

24915-916 (6th Cir. 1984). On that record, applicationof standards for arbitrary government action in nonuniversitycontexts might well have produced adifferent result. But the Court held the dismissal an“academic decision” and cited “[c]onsiderations ofprofound importance [that] counsel restrainedjudicial review,” Ewing, 474 U.S. at 225, includingthe right to decide “who may be admitted to study.”Id. at 226 n. 12. The “narrow avenue for judicialreview” the Court set focused solely on whether thedecision “[was] such a substantial departure fromaccepted academic norms as to demonstrate that the[faculty] did not actually exercise professionaljudgment.” Id. at 225, 227. The Court concludedthat academic judgments “made daily by facultymembers * * * require ‘an expert evaluation ofcumulative information and [are] not readily adaptedto the procedural tools of judicial or administrativedecisionmaking.’ ” Id. at 226 (quoting Horowitz, 435U.S. at 89-90).The other branches of government, too, in decisionswith profound consequence for American collegesand universities, have opted to leave the conduct ofhigher education to educators. Thus, in theAdministration of George Washington, Congressrejected establishment of a national university thatwould set federal standards for all of the newnation’s colleges. 1 Richard Hofstadter and WilsonSmith eds., American Higher Education: ADocumentary History 157 (1961). (Congress greeteda similar proposal by John Quincy Adams “with agale of laughter.” Edward H. Reisner, Antecedents tothe Federal Act Concerning Education, 11Educational Record 196, 197 (July 1930).) Had theidea of a national university carried, the United

25States likely would have developed the morecentralized, governmental control of highereducation characteristic of the European nations.The decision not to establish such an institution or acharter-granting federal ministry of education—adecision of which Chief Justice Marshall was awarewhen he addressed the Dartmouth College case—preserved the pluralism, adaptiveness, and will toinnovate that remain American higher educationhallmarks. Thus Thomas Jefferson founded auniversity in Virginia based on the “illimitablefreedom of the human mind * * * to follow truthwherever it may lead.” Roy J. Honeywell,Educational Works of Thomas Jefferson 99 (1931).The design of federal support to higher educationhas reinforced institutional authority. In the MorrillLand-Grant Act, 12 Stat. 503 (1862), Congressgranted 11,000 square miles of land to states foragricultural and mechanical arts colleges, “withoutexcluding other scientific and classical studies.” Id.at 504. By then the principle of federal governmentabstention from judgments about the conduct ofhigher education was so engrained that PresidentBuchanan vetoed an earlier version of the Act as anunconstitutional exercise of federal power. See CarlSwisher, American Constitutional Development 374(1943). Unquestionably the Morrill Act was atransformative assertion of federal interest in highereducation. Yet the Act imposed virtually norequirements on the type of institution or curriculumthat could benefit from this massive grant. See 12Stat. 504; Hamilton, 293 U.S. at 258-259 (stateaccepting federal land-grants “remain[ed]untrammeled by federal enactment and [was]entirely free to determine for itself” the content and

26objectives of instruction). Instead of drawing afederal blueprint, Congress mandated flexibility thatproduced an extraordinary range of institutions andprograms, prompting one educator to observe that “ofall the good fortune which has attended the carryingout of the act of 1862, this variety of plans andmethods in the various states was the best.” EarleD. Ross, Democracy’s College: The Land-GrantMovement in the Formative Stage 68-69 (1942)(quoting Andrew D. White).In the most important 20th century highereducation laws, the government similarly favorededucators’ authority. The first of these, theServicemen’s Readjustment Act of 1944 (known asthe GI Bill)—at the time the most far-reachingfinancial boost to higher education in the nation’shistory—again provided aid in a manner thatmaximized institutional autonomy in the educationalrealm. See 58 Stat. 288. Congress rejected proposalsthat would have prescribed detailed standards forinstitutions to receive aid, and directed that “nodepartment, agency, or officer of the UnitedStates * * * shall exercise any supervision or control,whatsoever, over * * * any educational or traininginstitution.” 58 Stat. 289. By structuring the aidwith few prescriptions on the types of institutions orprograms for which it could be used, the adoptedapproach reaffirmed the value of competition amonginstitutions, each with its own educational model, asthe best way to promote quality higher education.See H.R. Rep. No. 78-1418, at 3 (1944); Trow,Federalism in Higher Education, in Higher Learningin America at 58-59.

27In the second major 20th century enactment offederal support for higher education, the HigherEducation Act of 1965, Pub. L. No. 89-329, 79 Stat.1219 (1965), and in amendments to it since, 3Congress again and again has rejected proposals toassert federal authority over colleges’ anduniversities’ educational judgment. In legislatingthe modern mechanisms of federal student aid,Congress rejected an emphasis on grants toinstitutions, close federal regulation of educationaljudgment, and centralized standard-setting. Instead,the Act preserves the institutions’ independence andpluralism by directing aid to individual students whomay choose among several thousand institutions.See 79 Stat. 1263 (requiring regulations “leavingopportunity and flexibility for the development ofState plan standards and methods that will bestaccommodate the varied needs of institutions”);Chester E. Finn, Jr., Scholars, Dollars andBureaucrats 61 (1978). The federal student aidprogram addresses institutional eligibility to receiveand disburse aid in part through a highlydecentralized, non-governmental accreditationsystem to the expert authority of which theinstitutions submit individually. See 20 U.S.C.§§ 1001-1002. And these structural protections arebuttressed by the General Education Provisions Act,3 Education Amendments of 1972, Pub. L. No. 92-318, 86Stat. 235; Education Amendments of 1978, Pub. L. No. 95-561,92 Stat. 2143; Education Amendments of 1984, Pub. L. No. 98-511, 98 Stat. 2366; Higher Education Amendments of 1986,Pub. L. No. 99-498, 100 Stat. 1268; Higher EducationAmendments of 1992, Pub. L. No. 102-325, 106 Stat. 448;Higher Education Amendments of 1998, Pub. L. No. 105-244,112 Stat. 1581; Higher Education Opportunity Act, Pub. L. No.110-315, 122 Stat. 3078.

28which forbids the federal government from“exercis[ing] any direction, supervision, or controlover the curriculum, program of instruction,administration, or personnel of any educationalinstitution.” 20 U.S.C. § 1232a.The authority of colleges and universities ineducational matters reaches not only “ ‘[t]eachersand students [who] must always remain free toinquire, to study and to evaluate,’ ” Keyishian v.Board of Regents of Univ. of N.Y., 385 U.S. 589, 603(1967) (quoting Sweezy, 354 U.S. at 250), but also“autonomous decisionmaking by the academy itself.”Ewing, 474 U.S. at 226 n.12. The federalgovernment has repeatedly assented to thatproposition for two centuries, in reliance on thefiduciary duty of those charged with maintaining theinstitutions. If one lesson can be distilled from thehistorical relationship between the United Statesgovernment and higher education, it is that wheneducators exercising professional judgment concludethat there is powerful educational basis for apractice, government should be loath to bar it.B. Each Institution Must Define DiversityIn A Manner Consistent With ItsMission.Petitioner’s arguments threaten to undermine theinstitutional pluralism this Court and the otherBranches have been so careful to preserve. InPetitioner’s view, the University of Texas has nojustification for considering race in admissionsbecause it has already achieved a racially diversestudent body. The argument has two distinct parts.First, Petitioner contends that, under the Top 10%Law—which guarantees admission to all students in

29the top ten percent of their high school graduatingclass—UT has become “one of the most diverse publicuniversities in the nation” and that additionaldiversity would be “ ‘gratuitous.’ ” Pet. Br. 35 (citingFisher v. Univ. of Tex., 644 F.3d 307, 307 (5th Cir.2011) (Jones, C.J., dissenting from denial of reh’g enbanc)). Relatedly, Petitioner suggests that UT’sinterest in a diverse student body must be limited tothe pursuit of a “critical mass” of minority students,as the Court used that term in Grutter. Pet. Br. 29.Both contentions are wrong, and both misconceivethe Court’s role. Determinations about what kind ofdiversity, and how much, a higher educationinstitution needs entail quintessential academicjudgment. Grutter, 539 U.S. at 328-329, 333.Because it is at the heart of “a university’s definitionof its educational objective,” id. at 388 (Kennedy, J.dissenting), diversity is best defined by an institutionfor itself, in accordance with its mission and conceptof education. The constitutionally protected freedomto assemble a diverse student body would amount tolittle if it did not include the freedom to define thediversity being sought.Grutter endorsed deference to institutionaljudgment on such matters—not only to the abstractdecision that “diversity is a compelling interest,” butalso to the more practical and institution-specificdeterminations about what diversity means for aninstitution. The University of Michigan Law Schoolidentified one particular conception of diversity—“ ‘enroll[ing] a “critical mass” of minoritystudents’ ”—and determined that attaining criticalmass was “necessary to further its compellinginterest in securing the educational benefits of a

30diverse student body.” 539 U.S. at 329, 333 (quotingBr. for Respondent in No. 02-241, at 13). The Courtdeferred to that judgment based in part on the LawSchool’s “experience and expertise” within theeducational realm. Id. But one law school’sparticular judgment about what type of diversity topursue in light of its mission does not bind everyother college and university in the nation. The FirstAmendment affords each institution “particularlatitude in defining diversity.” Parents Involved inCommunity Schools v. Seattle School Dist. No. 1, 551U.S. 701, 792 (2007) (Kennedy, J., concurring inpart); see also Grutter, 539 U.S. at 388 (Kennedy, J.,dissenting) (distinguishing permissible “deference toa university’s definition of its educational objective”from impermissible “deference to the implementationof this goal”). What constitutes diversity sufficientfor the educational objectives of one school might notsuffice at another.Deference is owed educators’ educationally derivedconceptions of diversity because such matters requireevaluation of cumulative information for which thoseresponsible for higher education are best qualified.See Ewing, 474 U.S. at 226. How, for example, themix of students affects learning involvesconsiderations educators are best equipped to gauge.Such judgments require knowledge of campus andclassroom dynamics, cognitive processes, and ways tonurture students’ capacity for moral reasoning, alongwith other specialized knowledge in which educatorsare trained. These “complex educational judgments”lie “primarily within the expertise of the university.”Grutter, 539 U.S. at 328. Courts should therefore“resist substitut[ing] their own notions of soundeducational policy for those of the school authorities

31which they review.” Christian Legal Soc’y v.Martinez, 130 S. Ct. 2971, 2988 (2010) (internalquotations omitted).Such judgments also depend on the institution’sparticular mission. The education a small liberalarts college aims to impart may call for a studentbody different than that a flagship state universityneeds; the student body a secular university seeksmay ill-suit an institution committed to a delicatebalance of Catholicism and denominationalinclusiveness. In the admission process, the weightplaced on academic metrics, such as standardizedtest scores and grade-point averages, varies from oneinstitution to another. And institutions’ needs evolveover time. For courts to override educators’ reasonedjudgment about how much diversity and what kindof diversity the institution needs would truncateAmerican colleges’ and universities’ historic right toassemble students in a way that fits the institutions’educational philosophies—philosophies that withsalutary effect are themselves extraordinarily varied.See Carnegie Comm’n on Higher Educ., Reform onCampus: Changing Students, Changing AcademicPrograms 35 (1972). The Fourteenth Amendmentdoes not require this result. On the contrary, strictscrutiny “is designed to take relevant differences intoaccount.” Johnson v. California, 543 U.S. 499, 515(2005).C. Properly Conducted Holistic,Individualized Review Tailored ToInstitutional Mission Is A Lawful AndEffective Means To Attain Diversity.As the foregoing observations suggest, the FifthCircuit was correct to focus its scrutiny on UT’s

32“decisionmaking process” in admissions rather thanthe merits of UT’s judgment as to whether it hadachieved sufficient diversity. Fisher v. Univ. of Tex.,631 F.3d 213, 231 (5th Cir. 2011). Grutter affordscolleges and universities a substantial degree ofdeference in defining their educational goals, but itrequires courts to ensure that any race-consciousmeans used to pursue those goals are narrowlytailored to the end.Quotas and mechanical formulas are not narrowlytailored to achieve the benefits of student bodydiversity where they make “an applicant's race orethnicity the defining feature of his or herapplication.” 539 U.S. at 337. Diversity is acompelling educational interest because studentsbenefit from exposure to peers from a broad varietyof backgrounds; racial and ethnic diversity is onecomponent of that variety, but it is hardly the onlycomponent. By failing to account for “ ‘all pertinentelements of diversity,’ ” id. at 334 (citation omitted),quotas and mechanical formulas are a poor fit for thegoal of student body diversity. That is why they failstrict scrutiny.A properly conducted holistic, individualizedconsideration of each applicant, on the other hand, isprecisely tailored to achieve the goal of student bodydiversity. Such review “ensures that all factors thatmay contribute to student body diversity aremeaningfully considered alongside race inadmissions decisions.” Id. at 337. “The point of thenarrow tailoring analysis in which the Grutter Courtengaged was to ensure that the use of racialclassifications was indeed part of a broaderassessment of diversity, and not simply an effort to

33achieve racial balance.” Parents Involved, 551 U.S.at 723 (citation omitted); see also id. at 722 (“whatwas upheld in Grutter was consideration of ‘a farbroader array of qualifications and characteristics ofwhich racial or ethnic origin is but a single thoughimportant element’ ” (citation omitted)).The Court’s core holding on this point in Grutterthus remains valid: universities can “consider race orethnicity * * * as a ‘plus’ factor in the context ofindividualized consideration of each and everyapplicant.” 539 U.S. at 334. The University of Texasdid so here, as part of its holistic, applicant-byapplicantreview. Its educational judgment shouldbe respected, and the educational benefits that flowfrom diversity reaffirmed.CONCLUSIONThis Court should affirm the Court of Appeals,reaffirm Grutter, and protect colleges’ anduniversities’ freedom to pursue their respectivemissions.August 13, 2012ADA MELOYGeneral CounselAmerican Councilon EducationOne Dupont Circle, NWWashington, DC 20036(202) 939-9300Respectfully submitted,MARTIN MICHAELSON *ALEXANDER E. DREIERCATHERINE E. STETSONELIZABETH B. MEERSDAVID M. GINNHogan Lovells US LLP555 Thirteenth St., NWWashington, DC 20004(202) 637-5600martin.michaelson@hoganlovells.com* Counsel of Record Counsel for Amici Curiae

ADDENDUM

1aADDENDUM: AMICI ON THIS BRIEFThe American Council on Education is describedat page 2 of this brief.The American Anthropological Association (AAA)is the world’s largest organization of individualsinterested in anthropology. It represents morethan 10,000 archaeologists and anthropologists inthe academy and practice. The American Association of Colleges ofPharmacy (AACP) is a national organizationrepresenting the interests of pharmacy educationand educators. Comprising 129 accreditedcolleges and schools of pharmacy including morethan 6,400 faculty, 57,000 students enrolled inprofessional programs, and 5,700 individualspursuing graduate study, AACP is committed toexcellence in pharmacy education.The American Association of Community Colleges(AACC) is the primary advocacy organization forthe nation’s community colleges. It representsnearly 1,200 two-year, associate degree-grantinginstitutions.The American Association of State Colleges andUniversities (AASCU) is a higher educationassociation of more than 400 public colleges,universities, and systems whose members share alearning- and teaching-centered culture, ahistoric commitment to underserved studentpopulations, and a dedication to research andcreativity that advances their regions’ economicprogress and cultural development.

2a The American Association of UniversityProfessors (AAUP) represents some 48,000faculty members and research scholars. Itdefends academic freedom and the free exchangeof ideas in higher education.The American College Personnel Association(ACPA) is the largest comprehensive studentaffairs association that advances student affairsand engages students for a lifetime of learningand discovery. ACPA, with almost 8,000members, supports and fosters college studentlearning through the generation anddissemination of knowledge, which informspolicies, practices, and programs for studentaffairs professionals and the higher educationcommunity. The American Indian Higher EducationConsortium (AIHEC) is the unifying voice of ournation’s 37 Tribal Colleges and Universities—acommunity of federally recognized publicinstitutions working to strengthen tribal nationsand make a lasting difference in the lives ofAmerican Indians and Alaska Natives. AIHECserves its network of member institutionsthrough public policy, advocacy, research, andprogram initiatives to ensure strong tribalsovereignty through excellence in AmericanIndian higher education. The American Speech-Language-HearingAssociation (ASHA) is the professional, scientific,and credentialing association for more than150,000 members and affiliates who areaudiologists, speech-language pathologists, and

3aspeech, language, and hearing scientists in theUnited States and internationally. Supportpersonnel in audiology and speech-languagepathology also affiliate with ASHA. The Association of American Colleges andUniversities (AAC&U) is the leading nationalassociation concerned with the quality, vitality,and public standing of undergraduate liberaleducation. It has more than 1,250 memberinstitutions, including accredited public andprivate colleges, community colleges, anduniversities of every type and size. Its mission isto reinforce the collective commitment to liberaleducation at both the national and local levelsand to help individual institutions keep thequality of student learning at the core of theirwork as they evolve to meet new economic andsocial challenges.The Association of American Universities (AAU)is an association of 61 leading public and privateresearch universities in the United States andCanada. Founded to advance the internationalstanding of U.S. research universities, AAU todayfocuses on issues that are important to researchintensiveuniversities, such as funding forresearch, research policy issues, and graduateand undergraduate education. The Association of Catholic Colleges andUniversities (ACCU) serves as the collective voiceof U.S. Catholic higher education. Throughprograms and services, ACCU strengthens andpromotes the Catholic identity and mission of itsmember institutions so that all associated with

4aCatholic higher education can contribute to thegreater good of the world and the Church.The Association of Community College Trustees(ACCT) represents over 6,000 board memberswho govern community, technical, and juniorcolleges. The Association of Governing Boards ofUniversities and Colleges (AGB) is the onlynational association that serves the interests andneeds of academic governing boards, boards ofinstitutionally related foundations, and campusCEOs and other senior-level campusadministrators on issues related to highereducation governance and leadership. Its missionis to strengthen, protect, and advocate on behalfof citizen trusteeship that supports and advanceshigher education. The Association of Jesuit Colleges andUniversities (AJCU) represents all 28 Jesuitinstitutions in the U.S. and is affiliated with over100 Jesuit institutions worldwide. The firstJesuit institution opened in 1548 in Messina,Sicily, and since that time, Jesuit institutionsremain committed to academic rigor, with a focuson quality teaching, learning, and research toeducate the whole person. Jesuit teachings areinspired by many years of social justice prioritiesand providing access to all students from allsocio-economic backgrounds. The Association of Public and Land-grantUniversities (APLU) is a research and advocacyorganization of public research universities, landgrantinstitutions, and state university

5asystems with member campuses in all 50states, U.S. territories, and the District ofColumbia.The Association of Research Libraries (ARL) is anorganization of 126 research libraries atcomprehensive, research-extensive institutions inthe U.S. and Canada that share similar researchmissions, aspirations, and achievements.The Association to Advance Collegiate Schools ofBusiness (AACSB) represents nearly 1,300business schools worldwide in 84 countries. Itsprimary mission is to advance qualitymanagement education worldwide throughaccreditation, thought leadership, and valueaddedservices. The College and University ProfessionalAssociation for Human Resources (CUPA-HR)serves as the voice of human resources in highereducation, representing more than 14,000human-resources professionals at over 1,800colleges and universities across the country. Itsmembership includes 92 percent of all UnitedStates doctoral institutions, 75 percent of allmaster’s institutions, 60 percent of all bachelor’sinstitutions, and nearly 600 two-year andspecialized institutions. The Common Application is committed toproviding reliable services that promote equity,access, and integrity in the college applicationprocess. It serves students, member institutions,and secondary schools by providing applicationsthat students and school officials may submit toany of its nearly 500 member institutions.

6aMembership is open to colleges and universitiesthat promote access by evaluating students usinga holistic selection process.The Council for Advancement and Support ofEducation (CASE) is a professional associationserving educational institutions and theadvancement professionals who work on theirbehalf in alumni relations, communications,development, marketing, and allied areas. CASEhelps its members build stronger relationshipswith their alumni and donors, raise funds forcampus projects, produce recruitment materials,market their institutions to prospective students,diversify the profession, and foster public supportof education.The Council for Christian Colleges & Universities(CCCU) is an international association of 170fully accredited Christ-centered institutions ofhigher education committed to the integration ofChristian faith and higher learning. Its memberinstitutions transform lives by faithfully relatingscholarship and service to biblical truth. CCCUmember and affiliate campuses currently serveover 400,000 students.The Council for Higher Education Accreditation(CHEA) promotes academic quality throughreview and formal recognition of higher educationaccrediting bodies.The Council for Opportunity in Education (COE)expands educational opportunities for low-incomestudents, first-generation students, students withdisabilities, veterans, and adult learners.

7aThe Council of Graduate Schools (CGS) is anorganization of institutions of higher education inthe United States, Canada, and across the globeengaged in graduate education, research,scholarship, and the preparation of candidates foradvanced degrees.The Council of Independent Colleges (CIC)represents 619 liberal arts colleges anduniversities and 90 state associations and otherhigher education organizations.The Council on Social Work Education (CSWE)strengthens the quality of social work educationby providing national leadership and a forum forcollective action. CSWE sets and maintainspolicy and program standards, accredits degreeprograms in social work, promotes research andfaculty development, and advocates for socialwork education. EDUCAUSE is an association of over 2,000colleges and universities. It promotes innovationand progress in higher education through theeffective design and implementation ofinformation technologies.The Graduate Management Admission Council(GMAC) is an organization of more than 200leading graduate management school memberslocated in the United States and worldwide. Itowns and administers the GMAT® exam andprovides research and market intelligence,marketing and recruiting tools and programs,worldwide professional developmentopportunities, and innovative grant initiatives

8adesigned to serve the graduate managementcommunity.The Group for the Advancement of DoctoralEducation in Social Work (GADE) promotesexcellence in doctoral education in social workand facilitates information exchange among itsmember doctoral programs.The National Action Council for Minorities inEngineering, Inc. (NACME) ensures Americancompetitiveness in a flat world by leading andsupporting the national effort to increase thenumber of successful African American, AmericanIndian, and Latino women and men in science,technology, engineering and mathematicseducation and careers. It has supported over24,000 students with more than $124 million inscholarships and other support.The National Association for Equal Opportunityin Higher Education (NAFEO) is the umbrellaorganization of the nation’s Historically BlackColleges and Universities and PredominantlyBlack Institutions. It is the only membershipassociation of its kind, representing thepresidents and chancellors of the diverse blackcolleges and universities: public, private, andland-grant, two-year, four-year, graduate, andprofessional, historically and predominantly blackcolleges and universities. The National Association of College andUniversity Business Officers (NACUBO) is amembership organization representing more than2,500 colleges, universities, and higher educationservice providers across the country and around

9athe world. It represents chief business andfinancial officers through advocacy efforts,community service, and professional developmentactivities. NACUBO’s mission is to advance theeconomic viability and business practices ofhigher education institutions in fulfillment oftheir academic missions.The National Association of Diversity Officers inHigher Education (NADOHE) is the leading voiceof chief diversity officers in higher education. Itsmembership includes almost 200 colleges anduniversities, as well as individual members,affiliated professional organizations, and twoformal state chapters.The National Association of Independent Collegesand Universities (NAICU) serves as the unifiednational voice of private, nonprofit highereducation in the United States. It has nearly1,000 members nationwide, including traditionalliberal arts colleges, major research universities,special service educational institutions, andschools of law, medicine, engineering, business,and other professions. NAICU represents theseinstitutions on policy issues primarily with thefederal government, such as those affectingstudent aid, taxation, and government regulation.The National Association of Student FinancialAid Administrators (NASFAA) represents morethan 18,000 student financial assistanceprofessionals at nearly 2,800 institutions ofhigher education, serving over 16 millionstudents. It supports the training, diversity, andprofessional development of financial aid

10aadministrators; advocates for public policies andprograms that increase student access to andsuccess in postsecondary education; and serves asa forum for communication and collaboration onstudent financial aid issues.The National Collegiate Athletic Association(NCAA) serves as the organizing, regulating, andstandard-setting body for 23 intercollegiatesports. The NCAA’s active membership includesover 1,000 institutions of higher education thatjointly create seasons of amateur intercollegiatecompetition across three Divisions.The Southern Association of Colleges and SchoolsCommission on Colleges (SACSCOC) is theregional body for the accreditation of degreegrantinghigher education institutions in theSouthern states. Its mission is the enhancementof educational quality throughout the region, andit strives to improve the effectiveness ofinstitutions by ensuring that institutions meetstandards established by the higher educationcommunity that address the needs of society andstudents. Student Affairs Administrators in HigherEducation (NASPA) is the leading association forthe advancement, health, and sustainability ofthe student affairs profession. It serves a fullrange of professionals who provide programs,experiences, and services that cultivate studentlearning and success in concert with the missionof our colleges and universities. NASPA has morethan 13,000 members in all 50 states, 29countries, and 8 U.S. Territories.

11aThe Thurgood Marshall College Fund (TMCF) isthe only national organization founded for thesole purpose of providing scholarships to studentsattending the nation’s public Historically BlackColleges and Universities. In addition toscholarships, TMCF provides leadershipdevelopment and training as well asprogrammatic and capacity building support to itsmember schools.