Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/64

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FISHER v. UNIVERSITY OF TEX. AT AUSTIN

ALITO, J., dissenting

interest about as well and at tolerable administrative expense,” ’ then the university may not consider race.” Id., at ___ (slip op., at 11) (citations omitted). Here, there is no evidence that race-blind, holistic review would not achieve UT’s goals at least “about as well” as UT’s race-based policy. In addition, UT could have adopted other approaches to further its goals, such as intensifying its outreach efforts, uncapping the Top Ten Percent Law, or placing greater weight on socioeconomic factors.

The majority argues that none of these alternatives is “a workable means for the University to attain the benefits of diversity it sought.” Ante, at 16. Tellingly, however, the majority devotes only a single, conclusory sentence to the most obvious race-neutral alternative: race-blind, holistic review that considers the applicant’s unique characteristics and personal circumstances. See ibid.^[1] Under a system that combines the Top Ten Percent Plan with race-blind, holistic review, UT could still admit “the star athlete or musician whose grades suffered because of daily practices and training,” the “talented young biologist who struggled to maintain above-average grades in humanities classes,” and the “student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school.” Ante, at

↑ The Court asserts that race-blind, holistic review is not a workable alternative because UT tried, and failed, to meet its goals via that method from 1996 to 2003. See ante, at 16 (“Perhaps more significantly, in the wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using race-neutral holistic review”). But the Court never explains its basis for concluding that UT’s previous system failed. We are not told how the Court is measuring success or how it knows that a race-conscious program will satisfy UT’s goals more effectively than race-neutral, holistic review. And although the majority elsewhere emphasizes “the University’s continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances,” ante, at 10, its rejection of race-blind, holistic review relies exclusively on “evidence” predating petitioner’s suit by five years.

[1] The Court asserts that race-blind, holistic review is not a workable alternative because UT tried, and failed, to meet its goals via that method from 1996 to 2003. See ante, at 16 (“Perhaps more significantly, in the wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using race-neutral holistic review”). But the Court never explains its basis for concluding that UT’s previous system failed. We are not told how the Court is measuring success or how it knows that a race-conscious program will satisfy UT’s goals more effectively than race-neutral, holistic review. And although the majority elsewhere emphasizes “the University’s continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances,” ante, at 10, its rejection of race-blind, holistic review relies exclusively on “evidence” predating petitioner’s suit by five years.

[1]