bakke said strict scrutiny. justice alito, what we found in the record is where the most selective schools were concerned, which would lead you to the smaller classes, more of the top ten minorities enrolled in that than the added minorities they derived. >> the issue in this case is not whether the university can have holistic review. the issue is whether they can have as a opponent of holistic review after they take into account other characteristics not based on race. so, if it were would there be any way of determining, if there were a remand, which of the non-top ten admitees were admitted solely because of race? in other words, these students would not have been admitted taking into account leadership and family education and socioeconomic background and hardship and everything else. >> according to the university of texas' answer to that is no. they cannot make that determination because in their view race is contextual. you cannot sort out those who could have made. in response to justice breyer as fact

justice sotomayor: you have not answered why this is worse than bakke. mr. rein: it is not used to build the class. it is just used to create a racial plus and to increase the number of minority emissions. justice sotomayer: how is race given a plus? i thought what they were looking for is leaders in diversity, not just of race but of experiences generally. mr. rein: i'm sorry but those factors were in the pai before they added race. leadership, demonstrated warts, , andmonstrated awards success out of school, overcoming obstacles and a single-parent family, those were all part of the pai before race was added. race was tacked on, a factor of a factor. it is a minor plus. do not worry. it is contextualized part of the pas which is part of the pai. justice sotomayor: white people in some situations can show leadership as well as black or hispanic or asian or native american area any race could then if it from this plus factor. so how is this worse than bakke? mr. rein: we did not concede that and we would not. the other pai factors might benefit anyone of any

bakke said strict scrutiny. justice alito, what we found in the record is where the most selective schools were concerned, which would lead you to the smaller classes, more of the top ten minorities enrolled in that than the added minorities they derived. >> the issue in this case is not whether the university can have holistic review. the issue is whether they can have that as a component of holistic review after they take into account other characteristics not based on race. so, if it were would there be any way of determining, if there were a remand, which of the non-top ten admitees were admitted solely because of race? in other words, these students would not have been admitted taking into account leadership and family education and socioeconomic background and hardship and everything else. >> according to the university of texas' answer to that is no. they cannot make that determination because in their view race is contextual. you cannot sort out those who could have made it without race to those who did

it may be that the university could achieve more diversity through the bakke style plan. we think, working with the texas legislature, that we have come up with a hybrid plan to ddress this court's concerns about using race to much in the process and address the university of texas is legitimate concerns to compile a class with diversity. if i could read one aspect of the deposition testimony here. this is on page 253 in the joint appendix. she explains why top 10% alone is not sufficient. she says -- considering an applicant on just a class rank leaves out circumstantial experiences and life experiences. we need to know how they developed into the type of student that they are but what they can contribute to our come -- to our campus. that is what the holistic policy ads. race still does matter. you are preventing the university from rounding out ts class, from complementing the single-minded way that the top 10% law achieves its diversity of objectives in the way that it is narrowly tailored to its interest which this court has found compelling. justice kennedy: if you