Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/53

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provides a justification for racial and ethnic discrimina­ tion, which the Constitution rarely allows.

UT’s purported interest in intraracial diversity, or “di­versity within diversity,” Brief for Respondents 34, also falls short. At bottom, this argument relies on the unsup­ported assumption that there is something deficient or at least radically different about the African-American and Hispanic students admitted through the Top Ten Percent Plan.

Throughout this litigation, UT has repeatedly shifted its position on the need for intraracial diversity. Initially, in the 2004 Proposal, UT did not rely on this alleged need at all. Rather, the Proposal “examined two metrics— classroom diversity and demographic disparities—that it concluded were relevant to its ability to provide [the] benefits of diversity.” Brief for United States as Amicus Curiae 27–28. Those metrics looked only to the numbers of African-Americans and Hispanics, not to diversity within each group.

On appeal to the Fifth Circuit and in Fisher I, however, UT began to emphasize its intraracial diversity argument. UT complained that the Top Ten Percent Law hinders its efforts to assemble a broadly diverse class because the minorities admitted under that law are drawn largely from certain areas of Texas where there are majority-minority schools. These students, UT argued, tend to come from poor, disadvantaged families, and the University would prefer a system that gives it substantial leeway to seek broad diversity within groups of underrepresented minorities. In particular, UT asserted a need for more African-American and Hispanic students from privileged backgrounds. See, e.g., Brief for Respondents in No. 11– 345, at 34 (explaining that UT needs race-conscious ad­missions in order to admit “[t]he African-American or