Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/73

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Cite as: 579 U. S. ____ (2016)

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ALITO, J., dissenting

list of courses taken in high school, and a description of any extracurricular activities, leadership experience, or special circumstances. See App. 212a–214a; 235a–236a; 758 F. 3d, at 669, n. 14 (Garza, J., dissenting). Unless UT has destroyed these files,^[1] it could use them to compare the unique personal characteristics of Top Ten minority admittees with those of holistic minority admittees, and to determine whether the Top Ten admittees are, in fact, less desirable than the holistic admittees. This may require UT to expend some resources, but that is an appropriate burden in light of the strict scrutiny standard and the fact that all of the relevant information is in UT’s possession. The cost of factfinding is a strange basis for awarding a victory to UT, which has a huge budget, and a loss to petitioner, who does not.

Finally, while I agree with the majority and the Fifth Circuit that Fisher I significantly changed the governing law by clarifying the stringency of the strict scrutiny standard,^[2] that does not excuse UT from meeting that

↑ UT’s current records retention policy requires it to retain student records, including application materials, for at least five years after a student graduates. See University of Texas at Austin, Records Retention Schedule, Agency Item No. AALL358, p. 58 (Nov. 14, 2014), online at https://www.tsl.texas.gov/sites/default/files/public/tslac/slrm/state/ schedules/721.pdf. If this policy was in place when UT resumed race-conscious admissions in 2004, then it still had these materials when petitioner filed this suit in 2008, and likely still had them at the time of Fisher I in 2013. At the very least, the application materials for the 2008 freshman class appear to be subject to a litigation hold. See App. 290a–292a. To the extent that UT failed to preserve these records, the consequences of that decision should fall on the University, not on petitioner. Cf. Tyson Foods, Inc. v. Bouaphakeo, 577 U. S. ___, ___ (2016) (slip op., at 12) (allowing “a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records”).
↑ See ante, at 10 (“Fisher I clarified the stringency of the strict-scrutiny burden for a school that employs race-conscious review”); 758 F. 3d, at 642 (“Bringing forward Justice Kennedy’s dissent in Grutter,

[1] UT’s current records retention policy requires it to retain student records, including application materials, for at least five years after a student graduates. See University of Texas at Austin, Records Retention Schedule, Agency Item No. AALL358, p. 58 (Nov. 14, 2014), online at https://www.tsl.texas.gov/sites/default/files/public/tslac/slrm/state/ schedules/721.pdf. If this policy was in place when UT resumed race-conscious admissions in 2004, then it still had these materials when petitioner filed this suit in 2008, and likely still had them at the time of Fisher I in 2013. At the very least, the application materials for the 2008 freshman class appear to be subject to a litigation hold. See App. 290a–292a. To the extent that UT failed to preserve these records, the consequences of that decision should fall on the University, not on petitioner. Cf. Tyson Foods, Inc. v. Bouaphakeo, 577 U. S. ___, ___ (2016) (slip op., at 12) (allowing “a representative sample to fill an evidentiary gap created by the employer’s failure to keep adequate records”).

[p73-2] See ante, at 10 (“Fisher I clarified the stringency of the strict-scrutiny burden for a school that employs race-conscious review”); 758 F. 3d, at 642 (“Bringing forward Justice Kennedy’s dissent in Grutter,

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