The plan is "non-racial," even though it is founded on the fact that Texas has a high degree of racial separation by school district. "Ten percent" admits were guaranteed to be diverse; minority numbers rebounded. In 2004, UT's entering class was 4.5 percent black and roughly 17 percent Latino and 17 percent Asian American.
There was a problem, however. Black and Latino admits from the "10 percent" tended to cluster in a few programs, such as social work and education. Other programs, like business, were whiter. A survey suggested that many classrooms had no minorities, and that many minority students felt isolated at UT. In 2004, after Grutter overturned Hopwood, UT announced a modest program to affect the 20 percent of the class admitted selectively, rather than under the "10 percent" plan. Part of the aim was to create a "critical mass" of minorities across programs -- an interest explicitly approved in Grutter.
The program was carefully designed to steer clear of quota-like features. Every competitive applicant to UT receives a "personal achievement index" score, based on essays, extra-curricular activities, socio-economic status, languages spoken at home, and many other factors, among which race is one. No automatic credit is given for any of them.
The resulting number is recorded and passed up the line by file number with no notation of the applicant's race. Admissions officers do not monitor how many minority students are being passed on at each score level. Final admissions are made purely on the basis of numbers, by decision makers who know neither the race of any individual nor the overall racial percentages admitted so far.
The outcome has been the admission of a small number of non-"10 percent" minority students who would probably not have made it into the class through race-blind applications. (Because of the care not to make racial considerations quantifiable, it's impossible to tell exactly how many minority students are admitted who would have otherwise been rejected. But the program affects only a few hundred students a year.)
Of course, if it were a program that produced dramatic increases in minority enrollment, it would be attacked as a quota. But because it produces only a small increase, the opponents have attacked it as not necessary. The "10 percent" plan had already produced nearly 20 percent minorities in the student body, argued Bert Rein, representing challenger Abigail Fisher. UT can't explain why it needs more.
So here is the key issue, explained by Justice Sonia Sotomayor: "I think I hear ... you saying in your brief is the number's fixed now, they got enough, no more is necessary."
"What is the critical mass of African Americans and Hispanics at the university that you are working toward?" Chief Justice Roberts asked Gregory Garre, representing the university. Garre did not give a number -- since, under the logic of Grutter, such a "goal" would represent a quota and doom the program at once. But the refusal to give a number dooms the program as well, Roberts suggested. "So how are we supposed to tell whether this plan is narrowly tailored to that goal?"