Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/48

ALITO, J., dissenting

at 658 (mentioning Asian-Americans only a single time).^[1] Only the District Court acknowledged the impact of UT’s policy on Asian-American students. But it brushed aside this impact, concluding—astoundingly—that UT can pick and choose which racial and ethnic groups it would like to favor. According to the District Court, “nothing in Grutter requires a university to give equal preference to every minority group,” and UT is allowed “to exercise its discre­tion in determining which minority groups should benefit from the consideration of race.” 645 F. Supp. 2d, at 606. This reasoning, which the majority implicitly accepts by blessing UT’s reliance on the classroom study, places the Court on the “tortuous” path of “decid[ing] which races to

1. In particular, the Fifth Circuit’s willful blindness to Asian-American students is absolutely shameless. For instance, one of the Fifth Cir­cuit’s primary contentions—which UT repeatedly highlighted in its brief and at argument—is that, given the SAT score gaps between whites on the one hand and African-Americans and Hispanics on the other, “holistic admissions would approach an all-white enterprise” in the absence of racial preferences. 758 F. 3d, at 647. In making this argument, the court below failed to mention Asian-Americans. The reason for this omission is obvious: As indicated in the very sources that the Fifth Circuit relied on for this point, on the very pages it cited, Asian-American enrollees admitted to UT through holistic review have consistently higher average SAT scores than white enrollees admitted through holistic review. See UT, Office of Admissions, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin, Demographic Analysis of Entering Freshmen Fall of 2006, pp. 11–14 (rev. Dec. 6, 2007), cited at 758 F. 3d, at 647, n. 71; UT, Office of Admissions, Implementation and Results of the Texas Automatic Admissions Law (HB 588) at the University of Texas at Austin, Demographic Analysis of Entering Freshmen Fall of 2008, pp. 12–15 (Oct. 28, 2008), cited at 758 F. 3d, at 647, n. 72. The Fifth Circuit’s intentional omission of Asian-Americans from its analy­sis is also evident in the appendices to its opinion, which either omit any reference to Asian-Americans or misleadingly label them as “other.” See id., at 661. The reality of how UT treats Asian-American applicants apparently does not fit into the neat story the Fifth Circuit wanted to tell.