As discussed above, Bakke was the first time that a plurality of Supreme Court justices endorsed affirmative action as necessary to achieve school diversity. A full majority of justices later affirmed that view both in Grutter and in the first opinion in this case, Fisher I, the latter by a 7-1 majority. And because UT uses the holistic review component to admit only 25% of its incoming class—the other 75% admitted through the race-blind TTP—UT’s policy is even more limited in its use of race compared to the plans endorsed in Bakke and Grutter, which proposed using race as a factor for all admits.

In the following clips, first listen as Justice Sotomayor asks Fisher’s attorney, Bert Rein, why UT’s admissions policy should be treated any less approvingly than the policies in Bakke and Grutter. (Note: The discussion includes references to “PAI” which stands for Personal Achievement Index, the metric UT generates according to an applicant’s entire background and accomplishments, and which, in turn, UT uses to evaluate applicants under holistic review.) In the second clip, listen as UT’s attorney, Gregory Garre, makes the case to Justice Kennedy that a holistic review component that takes race into account in the spirit of Bakke and Grutter is still needed, stating that “race still does matter in Austin and across the country.”