(Slip Opinion)              OCTOBER TERM, 2015                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


SUPREME COURT OF THE UNITED STATES

                                       Syllabus

FISHER v. UNIVERSITY OF TEXAS AT AUSTIN ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                  THE FIFTH CIRCUIT

    No. 14–981.      Argued December 9, 2015—Decided June 23, 2016
The University of Texas at Austin (University) uses an undergraduate
  admissions system containing two components. First, as required by
  the State’s Top Ten Percent Law, it offers admission to any students
  who graduate from a Texas high school in the top 10% of their class.
  It then fills the remainder of its incoming freshman class, some 25%,
  by combining an applicant’s “Academic Index”—the student’s SAT
  score and high school academic performance—with the applicant’s
  “Personal Achievement Index,” a holistic review containing numerous
  factors, including race. The University adopted its current admis-
  sions process in 2004, after a year-long-study of its admissions pro-
  cess—undertaken in the wake of Grutter v. Bollinger, 539 U. S. 306,
  and Gratz v. Bollinger, 539 U. S. 244—led it to conclude that its prior
  race-neutral system did not reach its goal of providing the education-
  al benefits of diversity to its undergraduate students.
     Petitioner Abigail Fisher, who was not in the top 10% of her high
  school class, was denied admission to the University’s 2008 freshman
  class. She filed suit, alleging that the University’s consideration of
  race as part of its holistic-review process disadvantaged her and oth-
  er Caucasian applicants, in violation of the Equal Protection Clause.
  The District Court entered summary judgment in the University’s fa-
  vor, and the Fifth Circuit affirmed. This Court vacated the judg-
  ment, Fisher v. University of Tex. at Austin, 570 U. S. ___ (Fisher I),
  and remanded the case to the Court of Appeals, so the University’s
  program could be evaluated under the proper strict scrutiny stand-
  ard. On remand, the Fifth Circuit again affirmed the entry of sum-
  mary judgment for the University.
Held: The race-conscious admissions program in use at the time of peti-
  tioner’s application is lawful under the Equal Protection Clause.
2             FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                                  Syllabus

    Pp. 6–20.
       (a) Fisher I sets out three controlling principles relevant to as-
    sessing the constitutionality of a public university’s affirmative ac-
    tion program. First, a university may not consider race “unless the
    admissions process can withstand strict scrutiny,” i.e., it must show
    that its “purpose or interest is both constitutionally permissible and
    substantial, and that its use of the classification is necessary” to ac-
    complish that purpose. 570 U. S., at ___. Second, “the decision to
    pursue the educational benefits that flow from student body diversity
    is, in substantial measure, an academic judgment to which some, but
    not complete, judicial deference is proper.” Id., at ___. Third, when
    determining whether the use of race is narrowly tailored to achieve
    the university’s permissible goals, the school bears the burden of
    demonstrating that “available” and “workable” “race-neutral alterna-
    tives” do not suffice. Id., at ___. Pp. 6–8.
       (b) The University’s approach to admissions gives rise to an unusu-
    al consequence here. The component with the largest impact on peti-
    tioner’s chances of admission was not the school’s consideration of
    race under its holistic-review process but the Top Ten Percent Plan.
    Because petitioner did not challenge the percentage part of the plan,
    the record is devoid of evidence of its impact on diversity. Remand
    for further factfinding would serve little purpose, however, because at
    the time of petitioner’s application, the current plan had been in ef-
    fect only three years and, in any event, the University lacked author-
    ity to alter the percentage plan, which was mandated by the Texas
    Legislature. These circumstances refute any criticism that the Uni-
    versity did not make good faith efforts to comply with the law. The
    University, however, does have a continuing obligation to satisfy the
    strict scrutiny burden: by periodically reassessing the admission pro-
    gram’s constitutionality, and efficacy, in light of the school’s experi-
    ence and the data it has gathered since adopting its admissions plan,
    and by tailoring its approach to ensure that race plays no greater role
    than is necessary to meet its compelling interests. Pp. 8–11.
        (c) Drawing all reasonable inferences in her favor, petitioner has
    not shown by a preponderance of the evidence that she was denied
    equal treatment at the time her application was rejected. Pp. 11–19.
          (1) Petitioner claims that the University has not articulated its
    compelling interest with sufficient clarity because it has failed to
    state more precisely what level of minority enrollment would consti-
    tute a “critical mass.” However, the compelling interest that justifies
    consideration of race in college admissions is not an interest in enrol-
    ling a certain number of minority students, but an interest in obtain-
    ing “the educational benefits that flow from student body diversity.”
    Fisher I, 570 U. S., at ___. Since the University is prohibited from
                      Cite as: 579 U. S. ____ (2016)                      3

                                 Syllabus

  seeking a particular number or quota of minority students, it cannot
  be faulted for failing to specify the particular level of minority en-
  rollment at which it believes the educational benefits of diversity will
  be obtained.
     On the other hand, asserting an interest in the educational benefits
  of diversity writ large is insufficient. A university’s goals cannot be
  elusory or amorphous—they must be sufficiently measurable to per-
  mit judicial scrutiny of the policies adopted to reach them. The rec-
  ord here reveals that the University articulated concrete and precise
  goals—e.g., ending stereotypes, promoting “cross-racial understand-
  ing,” preparing students for “an increasingly diverse workforce and
  society,” and cultivating leaders with “legitimacy in the eyes of the
  citizenry”—that mirror the compelling interest this Court has ap-
  proved in prior cases. It also gave a “reasoned, principled explana-
  tion” for its decision, id., at ___, in a 39-page proposal written after a
  year-long study revealed that its race-neutral policies and programs
  did not meet its goals. Pp. 11–13.
       (2) Petitioner also claims that the University need not consider
  race because it had already “achieved critical mass” by 2003 under
  the Top Ten Percent Plan and race-neutral holistic review. The rec-
  ord, however, reveals that the University studied and deliberated for
  months, concluding that race-neutral programs had not achieved the
  University’s diversity goals, a conclusion supported by significant
  statistical and anecdotal evidence. Pp. 13–15.
       (3) Petitioner argues further that it was unnecessary to consider
  race because such consideration had only a minor impact on the
  number of minority students the school admitted. But the record
  shows that the consideration of race has had a meaningful, if still
  limited, effect on freshman class diversity. That race consciousness
  played a role in only a small portion of admissions decisions should
  be a hallmark of narrow tailoring, not evidence of unconstitutionali-
  ty. P. 15.
       (4) Finally, petitioner argues that there were numerous other
  race-neutral means to achieve the University’s goals. However, as
  the record reveals, none of those alternatives was a workable means
  of attaining the University’s educational goals, as of the time of her
  application. Pp. 15–19.
758 F. 3d 633, affirmed.

  KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed a dissenting
opinion. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J.,
and THOMAS, J., joined. KAGAN, J., took no part in the consideration or
decision of the case.
                        Cite as: 579 U. S. ____ (2016)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash­
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.


SUPREME COURT OF THE UNITED STATES
                                   _________________

                                   No. 14–981
                                   _________________


ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY
          OF TEXAS AT AUSTIN, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

            APPEALS FOR THE FIFTH CIRCUIT

                                 [June 23, 2016] 


  JUSTICE KENNEDY delivered the opinion of the Court.
  The Court is asked once again to consider whether the
race-conscious admissions program at the University of
Texas is lawful under the Equal Protection Clause.
                             I
   The University of Texas at Austin (or University) relies
upon a complex system of admissions that has undergone
significant evolution over the past two decades. Until
1996, the University made its admissions decisions pri­
marily based on a measure called “Academic Index” (or
AI), which it calculated by combining an applicant’s
SAT score and academic performance in high school. In
assessing applicants, preference was given to racial
minorities.
   In 1996, the Court of Appeals for the Fifth Circuit inval­
idated this admissions system, holding that any considera­
tion of race in college admissions violates the Equal Pro­
tection Clause. See Hopwood v. Texas, 78 F. 3d 932, 934–
935, 948.
   One year later the University adopted a new admissions
policy. Instead of considering race, the University began
2        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     Opinion of the Court

making admissions decisions based on an applicant’s AI
and his or her “Personal Achievement Index” (PAI). The
PAI was a numerical score based on a holistic review of an
application. Included in the number were the applicant’s
essays, leadership and work experience, extracurricular
activities, community service, and other “special charac­
teristics” that might give the admissions committee in­
sight into a student’s background. Consistent with
Hopwood, race was not a consideration in calculating an
applicant’s AI or PAI.
  The Texas Legislature responded to Hopwood as well. It
enacted H. B. 588, commonly known as the Top Ten Per­
cent Law. Tex. Educ. Code Ann. §51.803 (West Cum.
Supp. 2015). As its name suggests, the Top Ten Percent
Law guarantees college admission to students who gradu­
ate from a Texas high school in the top 10 percent of their
class. Those students may choose to attend any of the
public universities in the State.
  The University implemented the Top Ten Percent Law
in 1998. After first admitting any student who qualified
for admission under that law, the University filled the
remainder of its incoming freshman class using a combi­
nation of an applicant’s AI and PAI scores—again, without
considering race.
  The University used this admissions system until 2003,
when this Court decided the companion cases of Grutter v.
Bollinger, 539 U. S. 306, and Gratz v. Bollinger, 539 U. S.
244. In Gratz, this Court struck down the University of
Michigan’s undergraduate system of admissions, which at
the time allocated predetermined points to racial minority
candidates. See 539 U. S., at 255, 275–276. In Grutter,
however, the Court upheld the University of Michigan
Law School’s system of holistic review—a system that did
not mechanically assign points but rather treated race as
a relevant feature within the broader context of a candi­
date’s application. See 539 U. S., at 337, 343–344. In
                  Cite as: 579 U. S. ____ (2016)              3

                      Opinion of the Court

upholding this nuanced use of race, Grutter implicitly
overruled Hopwood’s categorical prohibition.
   In the wake of Grutter, the University embarked upon a
year-long study seeking to ascertain whether its admis­
sions policy was allowing it to provide “the educational
benefits of a diverse student body . . . to all of the Univer­
sity’s undergraduate students.” App. 481a–482a (affidavit
of N. Bruce Walker ¶11 (Walker Aff.)); see also id., at
445a–447a. The University concluded that its admissions
policy was not providing these benefits. Supp. App. 24a–
25a.
   To change its system, the University submitted a pro­
posal to the Board of Regents that requested permission to
begin taking race into consideration as one of “the many
ways in which [an] academically qualified individual
might contribute to, and benefit from, the rich, diverse,
and challenging educational environment of the Univer­
sity.” Id., at 23a. After the board approved the proposal,
the University adopted a new admissions policy to imple­
ment it. The University has continued to use that admis­
sions policy to this day.
   Although the University’s new admissions policy was a
direct result of Grutter, it is not identical to the policy this
Court approved in that case. Instead, consistent with the
State’s legislative directive, the University continues to fill
a significant majority of its class through the Top Ten
Percent Plan (or Plan). Today, up to 75 percent of the
places in the freshman class are filled through the Plan.
As a practical matter, this 75 percent cap, which has now
been fixed by statute, means that, while the Plan contin­
ues to be referenced as a “Top Ten Percent Plan,” a stu­
dent actually needs to finish in the top seven or eight
percent of his or her class in order to be admitted under
this category.
   The University did adopt an approach similar to the one
in Grutter for the remaining 25 percent or so of the incom­
4         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     Opinion of the Court

ing class. This portion of the class continues to be admit­
ted based on a combination of their AI and PAI scores.
Now, however, race is given weight as a subfactor within
the PAI. The PAI is a number from 1 to 6 (6 is the best)
that is based on two primary components. The first com­
ponent is the average score a reader gives the applicant on
two required essays. The second component is a full-file
review that results in another 1-to-6 score, the “Personal
Achievement Score” or PAS. The PAS is determined by a
separate reader, who (1) rereads the applicant’s required
essays, (2) reviews any supplemental information the
applicant submits (letters of recommendation, resumes, an
additional optional essay, writing samples, artwork, etc.),
and (3) evaluates the applicant’s potential contributions to
the University’s student body based on the applicant’s
leadership      experience,    extracurricular    activities,
awards/honors, community service, and other “special
circumstances.”
   “Special circumstances” include the socioeconomic sta­
tus of the applicant’s family, the socioeconomic status of
the applicant’s school, the applicant’s family responsibili­
ties, whether the applicant lives in a single-parent home,
the applicant’s SAT score in relation to the average SAT
score at the applicant’s school, the language spoken at the
applicant’s home, and, finally, the applicant’s race. See
App. 218a–220a, 430a.
   Both the essay readers and the full-file readers who
assign applicants their PAI undergo extensive training to
ensure that they are scoring applicants consistently.
Deposition of Brian Breman 9–14, Record in No. 1: 08–
CV–00263, (WD Tex.), Doc. 96–3. The Admissions Office
also undertakes regular “reliability analyses” to “measure
the frequency of readers scoring within one point of each
other.” App. 474a (affidavit of Gary M. Lavergne ¶8); see
also id., at 253a (deposition of Kedra Ishop (Ishop Dep.)).
Both the intensive training and the reliability analyses
                 Cite as: 579 U. S. ____ (2016)            5

                     Opinion of the Court

aim to ensure that similarly situated applicants are being
treated identically regardless of which admissions officer
reads the file.
   Once the essay and full-file readers have calculated each
applicant’s AI and PAI scores, admissions officers from
each school within the University set a cutoff PAI/AI score
combination for admission, and then admit all of the
applicants who are above that cutoff point. In setting the
cutoff, those admissions officers only know how many
applicants received a given PAI/AI score combination.
They do not know what factors went into calculating those
applicants’ scores. The admissions officers who make the
final decision as to whether a particular applicant will be
admitted make that decision without knowing the appli­
cant’s race. Race enters the admissions process, then, at
one stage and one stage only—the calculation of the PAS.
   Therefore, although admissions officers can consider
race as a positive feature of a minority student’s applica­
tion, there is no dispute that race is but a “factor of a
factor of a factor” in the holistic-review calculus. 645
F. Supp. 2d 587, 608 (WD Tex. 2009). Furthermore, con­
sideration of race is contextual and does not operate as a
mechanical plus factor for underrepresented minorities.
Id., at 606 (“Plaintiffs cite no evidence to show racial
groups other than African-Americans and Hispanics are
excluded from benefitting from UT’s consideration of race
in admissions. As the Defendants point out, the consider­
ation of race, within the full context of the entire applica­
tion, may be beneficial to any UT Austin applicant—
including whites and Asian-Americans”); see also Brief for
Asian American Legal Defense and Education Fund et al.
as Amici Curiae 12 (the contention that the University
discriminates against Asian-Americans is “entirely un­
supported by evidence in the record or empirical data”).
There is also no dispute, however, that race, when consid­
ered in conjunction with other aspects of an applicant’s
6         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     Opinion of the Court

background, can alter an applicant’s PAS score. Thus,
race, in this indirect fashion, considered with all of the
other factors that make up an applicant’s AI and PAI
scores, can make a difference to whether an application is
accepted or rejected.
   Petitioner Abigail Fisher applied for admission to the
University’s 2008 freshman class. She was not in the top
10 percent of her high school class, so she was evaluated
for admission through holistic, full-file review. Petition­
er’s application was rejected.
   Petitioner then filed suit alleging that the University’s
consideration of race as part of its holistic-review process
disadvantaged her and other Caucasian applicants, in
violation of the Equal Protection Clause. See U. S. Const.,
Amdt. 14, §1 (no State shall “deny to any person within its
jurisdiction the equal protection of the laws”). The Dis­
trict Court entered summary judgment in the University’s
favor, and the Court of Appeals affirmed.
   This Court granted certiorari and vacated the judgment
of the Court of Appeals, Fisher v. University of Tex. at
Austin, 570 U. S. ___ (2013) (Fisher I ), because it had
applied an overly deferential “good-faith” standard in
assessing the constitutionality of the University’s pro­
gram. The Court remanded the case for the Court of
Appeals to assess the parties’ claims under the correct
legal standard.
   Without further remanding to the District Court, the
Court of Appeals again affirmed the entry of summary
judgment in the University’s favor. 758 F. 3d 633 (CA5
2014). This Court granted certiorari for a second time,
576 U. S. ___ (2015), and now affirms.
                             II
  Fisher I set forth three controlling principles relevant to
assessing the constitutionality of a public university’s
affirmative-action program. First, “because racial charac­
                   Cite as: 579 U. S. ____ (2016)              7

                       Opinion of the Court

teristics so seldom provide a relevant basis for disparate
treatment,” Richmond v. J. A. Croson Co., 488 U. S. 469,
505 (1989), “[r]ace may not be considered [by a university]
unless the admissions process can withstand strict scru­
tiny,” Fisher I, 570 U. S., at ___ (slip op., at 7). Strict scru-
tiny requires the university to demonstrate with clarity
that its “ ‘purpose or interest is both constitutionally per­
missible and substantial, and that its use of the classifica­
tion is necessary . . . to the accomplishment of its pur­
pose.’ ” Ibid.
   Second, Fisher I confirmed that “the decision to pursue
‘the educational benefits that flow from student body
diversity’ . . . is, in substantial measure, an academic
judgment to which some, but not complete, judicial defer­
ence is proper.” Id., at ___ (slip op, at 9). A university
cannot impose a fixed quota or otherwise “define diversity
as ‘some specified percentage of a particular group merely
because of its race or ethnic origin.’ ” Ibid. Once, however,
a university gives “a reasoned, principled explanation” for
its decision, deference must be given “to the University’s
conclusion, based on its experience and expertise, that a
diverse student body would serve its educational goals.”
Ibid. (internal quotation marks and citation omitted).
   Third, Fisher I clarified that no deference is owed when
determining whether the use of race is narrowly tailored
to achieve the university’s permissible goals. Id., at ___
(slip op., at 10). A university, Fisher I explained, bears the
burden of proving a “nonracial approach” would not pro­
mote its interest in the educational benefits of diversity
“about as well and at tolerable administrative expense.”
Id., at ___ (slip op., at 11) (internal quotation marks omit­
ted). Though “[n]arrow tailoring does not require exhaus­
tion of every conceivable race-neutral alternative” or
“require a university to choose between maintaining a
reputation for excellence [and] fulfilling a commitment to
provide educational opportunities to members of all racial
8         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                      Opinion of the Court

groups,” Grutter, 539 U. S., at 339, it does impose “on the
university the ultimate burden of demonstrating” that
“race-neutral alternatives” that are both “available” and
“workable” “do not suffice.” Fisher I, 570 U. S., at ___ (slip
op., at 11).
  Fisher I set forth these controlling principles, while
taking no position on the constitutionality of the admis­
sions program at issue in this case. The Court held only
that the District Court and the Court of Appeals had
“confined the strict scrutiny inquiry in too narrow a way
by deferring to the University’s good faith in its use of
racial classifications.” Id., at ___ (slip op., at 12) The
Court remanded the case, with instructions to evaluate
the record under the correct standard and to determine
whether the University had made “a showing that its plan
is narrowly tailored to achieve” the educational benefits
that flow from diversity. Id., at ___ (slip op., at 13). On
remand, the Court of Appeals determined that the pro­
gram conformed with the strict scrutiny mandated by
Fisher I. See 758 F. 3d, at 659–660. Judge Garza
dissented.
                            III
   The University’s program is sui generis. Unlike other
approaches to college admissions considered by this Court,
it combines holistic review with a percentage plan. This
approach gave rise to an unusual consequence in this case:
The component of the University’s admissions policy that
had the largest impact on petitioner’s chances of admis­
sion was not the school’s consideration of race under its
holistic-review process but rather the Top Ten Percent
Plan. Because petitioner did not graduate in the top 10
percent of her high school class, she was categorically
ineligible for more than three-fourths of the slots in the
incoming freshman class. It seems quite plausible, then,
to think that petitioner would have had a better chance of
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                      Opinion of the Court

being admitted to the University if the school used race-
conscious holistic review to select its entire incoming class,
as was the case in Grutter.
   Despite the Top Ten Percent Plan’s outsized effect on
petitioner’s chances of admission, she has not challenged
it. For that reason, throughout this litigation, the Top Ten
Percent Plan has been taken, somewhat artificially, as a
given premise.
   Petitioner’s acceptance of the Top Ten Percent Plan
complicates this Court’s review. In particular, it has led to
a record that is almost devoid of information about the
students who secured admission to the University through
the Plan. The Court thus cannot know how students
admitted solely based on their class rank differ in their
contribution to diversity from students admitted through
holistic review.
   In an ordinary case, this evidentiary gap perhaps could
be filled by a remand to the district court for further fact-
finding. When petitioner’s application was rejected, how­
ever, the University’s combined percentage-plan/holistic­
review approach to admission had been in effect for just
three years. While studies undertaken over the eight
years since then may be of significant value in determin­
ing the constitutionality of the University’s current admis­
sions policy, that evidence has little bearing on whether
petitioner received equal treatment when her application
was rejected in 2008. If the Court were to remand, there­
fore, further factfinding would be limited to a narrow 3­
year sample, review of which might yield little insight.
   Furthermore, as discussed above, the University lacks
any authority to alter the role of the Top Ten Percent Plan
in its admissions process. The Plan was mandated by the
Texas Legislature in the wake of Hopwood, so the Univer­
sity, like petitioner in this litigation, has likely taken the
Plan as a given since its implementation in 1998. If the
University had no reason to think that it could deviate
10       FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     Opinion of the Court

from the Top Ten Percent Plan, it similarly had no reason
to keep extensive data on the Plan or the students admit­
ted under it—particularly in the years before Fisher I
clarified the stringency of the strict-scrutiny burden for a
school that employs race-conscious review.
   Under the circumstances of this case, then, a remand
would do nothing more than prolong a suit that has al­
ready persisted for eight years and cost the parties on both
sides significant resources. Petitioner long since has
graduated from another college, and the University’s
policy—and the data on which it first was based—may
have evolved or changed in material ways.
   The fact that this case has been litigated on a somewhat
artificial basis, furthermore, may limit its value for pro­
spective guidance. The Texas Legislature, in enacting the
Top Ten Percent Plan, cannot much be criticized, for it
was responding to Hopwood, which at the time was bind­
ing law in the State of Texas. That legislative response, in
turn, circumscribed the University’s discretion in crafting
its admissions policy. These circumstances refute any
criticism that the University did not make good-faith
efforts to comply with the law.
   That does not diminish, however, the University’s con­
tinuing obligation to satisfy the burden of strict scrutiny
in light of changing circumstances. The University en-
gages in periodic reassessment of the constitutionality, and
efficacy, of its admissions program. See Supp. App. 32a;
App. 448a. Going forward, that assessment must be un­
dertaken in light of the experience the school has accumu­
lated and the data it has gathered since the adoption of its
admissions plan.
   As the University examines this data, it should remain
mindful that diversity takes many forms. Formalistic
racial classifications may sometimes fail to capture diver­
sity in all of its dimensions and, when used in a divisive
manner, could undermine the educational benefits the
                  Cite as: 579 U. S. ____ (2016)            11

                      Opinion of the Court

University values. Through regular evaluation of data
and consideration of student experience, the University
must tailor its approach in light of changing circumstances,
ensuring that race plays no greater role than is neces-
sary to meet its compelling interest. The University’s
examination of the data it has acquired in the years since
petitioner’s application, for these reasons, must proceed
with full respect for the constraints imposed by the Equal
Protection Clause. The type of data collected, and the
manner in which it is considered, will have a significant
bearing on how the University must shape its admissions
policy to satisfy strict scrutiny in the years to come. Here,
however, the Court is necessarily limited to the narrow
question before it: whether, drawing all reasonable infer­
ences in her favor, petitioner has shown by a preponder­
ance of the evidence that she was denied equal treatment
at the time her application was rejected.
                             IV
  In seeking to reverse the judgment of the Court of Ap­
peals, petitioner makes four arguments. First, she argues
that the University has not articulated its compelling
interest with sufficient clarity. According to petitioner,
the University must set forth more precisely the level of
minority enrollment that would constitute a “critical
mass.” Without a clearer sense of what the University’s
ultimate goal is, petitioner argues, a reviewing court
cannot assess whether the University’s admissions pro­
gram is narrowly tailored to that goal.
  As this Court’s cases have made clear, however, the
compelling interest that justifies consideration of race in
college admissions is not an interest in enrolling a certain
number of minority students. Rather, a university may
institute a race-conscious admissions program as a means
of obtaining “the educational benefits that flow from stu­
dent body diversity.” Fisher I, 570 U. S., at ___ (slip op., at
12        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                      Opinion of the Court

9) (internal quotation marks omitted); see also Grutter,
539 U. S., at 328. As this Court has said, enrolling a
diverse student body “promotes cross-racial understand­
ing, helps to break down racial stereotypes, and enables
students to better understand persons of different races.”
Id., at 330 (internal quotation marks and alteration omit­
ted). Equally important, “student body diversity promotes
learning outcomes, and better prepares students for an
increasingly diverse workforce and society.” Ibid. (inter­
nal quotation marks omitted).
   Increasing minority enrollment may be instrumental to
these educational benefits, but it is not, as petitioner
seems to suggest, a goal that can or should be reduced to
pure numbers. Indeed, since the University is prohibited
from seeking a particular number or quota of minority
students, it cannot be faulted for failing to specify the
particular level of minority enrollment at which it believes
the educational benefits of diversity will be obtained.
   On the other hand, asserting an interest in the educa­
tional benefits of diversity writ large is insufficient. A
university’s goals cannot be elusory or amorphous—they
must be sufficiently measurable to permit judicial scrutiny
of the policies adopted to reach them.
   The record reveals that in first setting forth its current
admissions policy, the University articulated concrete and
precise goals. On the first page of its 2004 “Proposal to
Consider Race and Ethnicity in Admissions,” the Univer-
sity identifies the educational values it seeks to realize
through its admissions process: the destruction of stereo­
types, the “ ‘promot[ion of] cross-racial understanding,’ ”
the preparation of a student body “ ‘for an increasingly
diverse workforce and society,’ ” and the “ ‘cultivat[ion of] a
set of leaders with legitimacy in the eyes of the citizenry.’ ”
Supp. App. 1a; see also id., at 69a; App. 314a–315a (depo­
sition of N. Bruce Walker (Walker Dep.)), 478a–479a
(Walker Aff. ¶4) (setting forth the same goals). Later in
                 Cite as: 579 U. S. ____ (2016)           13

                     Opinion of the Court

the proposal, the University explains that it strives to
provide an “academic environment” that offers a “robust
exchange of ideas, exposure to differing cultures, prepara­
tion for the challenges of an increasingly diverse work­
force, and acquisition of competencies required of future
leaders.” Supp. App. 23a. All of these objectives, as a
general matter, mirror the “compelling interest” this Court
has approved in its prior cases.
   The University has provided in addition a “reasoned,
principled explanation” for its decision to pursue these
goals. Fisher I, supra, at ___ (slip op., at 9). The Univer-
sity’s 39-page proposal was written following a year-long
study, which concluded that “[t]he use of race-neutral
policies and programs ha[d] not been successful” in
“provid[ing] an educational setting that fosters cross-racial
understanding, provid[ing] enlightened discussion and
learning, [or] prepar[ing] students to function in an in­
creasingly diverse workforce and society.” Supp. App. 25a;
see also App. 481a–482a (Walker Aff. ¶¶8–12) (describing
the “thoughtful review” the University undertook when it
faced the “important decision . . . whether or not to use
race in its admissions process”). Further support for the
University’s conclusion can be found in the depositions
and affidavits from various admissions officers, all of
whom articulate the same, consistent “reasoned, princi­
pled explanation.” See, e.g., id., at 253a (Ishop Dep.),
314a–318a, 359a (Walker Dep.), 415a–416a (Defendant’s
Statement of Facts), 478a–479a, 481a–482a (Walker Aff.
¶¶4, 10–13). Petitioner’s contention that the University’s
goal was insufficiently concrete is rebutted by the record.
   Second, petitioner argues that the University has no
need to consider race because it had already “achieved
critical mass” by 2003 using the Top Ten Percent Plan and
race-neutral holistic review. Brief for Petitioner 46.
Petitioner is correct that a university bears a heavy bur­
den in showing that it had not obtained the educational
14        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     Opinion of the Court

benefits of diversity before it turned to a race-conscious
plan. The record reveals, however, that, at the time of
petitioner’s application, the University could not be faulted
on this score. Before changing its policy the University
conducted “months of study and deliberation, including
retreats, interviews, [and] review of data,” App. 446a, and
concluded that “[t]he use of race-neutral policies and
programs ha[d] not been successful in achieving” sufficient
racial diversity at the University, Supp. App. 25a. At no
stage in this litigation has petitioner challenged the Uni­
versity’s good faith in conducting its studies, and the
Court properly declines to consider the extrarecord mate­
rials the dissent relies upon, many of which are tangential
to this case at best and none of which the University has
had a full opportunity to respond to. See, e.g., post, at 45–
46 (opinion of ALITO, J.) (describing a 2015 report regard­
ing the admission of applicants who are related to ‘‘politi­
cally connected individuals’’).
   The record itself contains significant evidence, both
statistical and anecdotal, in support of the University’s
position. To start, the demographic data the University
has submitted show consistent stagnation in terms of the
percentage of minority students enrolling at the Univer-
sity from 1996 to 2002. In 1996, for example, 266 African-
American freshmen enrolled, a total that constituted 4.1
percent of the incoming class. In 2003, the year Grutter
was decided, 267 African-American students enrolled—
again, 4.1 percent of the incoming class. The numbers for
Hispanic and Asian-American students tell a similar
story. See Supp. App. 43a. Although demographics alone
are by no means dispositive, they do have some value as a
gauge of the University’s ability to enroll students who can
offer underrepresented perspectives.
   In addition to this broad demographic data, the Univer­
sity put forward evidence that minority students admitted
under the Hopwood regime experienced feelings of loneli­
                 Cite as: 579 U. S. ____ (2016)           15

                     Opinion of the Court

ness and isolation. See, e.g., App. 317a–318a.
   This anecdotal evidence is, in turn, bolstered by further,
more nuanced quantitative data. In 2002, 52 percent of
undergraduate classes with at least five students had no
African-American students enrolled in them, and 27 per­
cent had only one African-American student. Supp. App.
140a. In other words, only 21 percent of undergraduate
classes with five or more students in them had more than
one African-American student enrolled. Twelve percent of
these classes had no Hispanic students, as compared to 10
percent in 1996. Id., at 74a, 140a. Though a college must
continually reassess its need for race-conscious review,
here that assessment appears to have been done with care,
and a reasonable determination was made that the Uni­
versity had not yet attained its goals.
   Third, petitioner argues that considering race was not
necessary because such consideration has had only a
“ ‘minimal impact’ in advancing the [University’s] compel­
ling interest.” Brief for Petitioner 46; see also Tr. of Oral
Arg. 23:10–12; 24:13–25:2, 25:24–26:3. Again, the record
does not support this assertion. In 2003, 11 percent of the
Texas residents enrolled through holistic review were
Hispanic and 3.5 percent were African-American. Supp.
App. 157a. In 2007, by contrast, 16.9 percent of the Texas
holistic-review freshmen were Hispanic and 6.8 percent
were African-American. Ibid. Those increases—of 54
percent and 94 percent, respectively—show that consider­
ation of race has had a meaningful, if still limited, effect
on the diversity of the University’s freshman class.
   In any event, it is not a failure of narrow tailoring for
the impact of racial consideration to be minor. The fact
that race consciousness played a role in only a small por­
tion of admissions decisions should be a hallmark of nar­
row tailoring, not evidence of unconstitutionality.
   Petitioner’s final argument is that “there are numerous
other available race-neutral means of achieving” the Uni­
16       FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     Opinion of the Court

versity’s compelling interest. Brief for Petitioner 47. A
review of the record reveals, however, that, at the time of
petitioner’s application, none of her proposed alternatives
was a workable means for the University to attain the
benefits of diversity it sought. For example, petitioner
suggests that the University could intensify its outreach
efforts to African-American and Hispanic applicants. But
the University submitted extensive evidence of the many
ways in which it already had intensified its outreach
efforts to those students. The University has created
three new scholarship programs, opened new regional
admissions centers, increased its recruitment budget by
half-a-million dollars, and organized over 1,000 recruit­
ment events. Supp. App. 29a–32a; App. 450a–452a (citing
affidavit of Michael Orr ¶¶4–20). Perhaps more signifi­
cantly, in the wake of Hopwood, the University spent
seven years attempting to achieve its compelling interest
using race-neutral holistic review. None of these efforts
succeeded, and petitioner fails to offer any meaningful way
in which the University could have improved upon them at
the time of her application.
  Petitioner also suggests altering the weight given to
academic and socioeconomic factors in the University’s
admissions calculus. This proposal ignores the fact that
the University tried, and failed, to increase diversity
through enhanced consideration of socioeconomic and
other factors. And it further ignores this Court’s prece­
dent making clear that the Equal Protection Clause does
not force universities to choose between a diverse student
body and a reputation for academic excellence. Grutter,
539 U. S., at 339.
  Petitioner’s final suggestion is to uncap the Top Ten
Percent Plan, and admit more—if not all—the University’s
students through a percentage plan. As an initial matter,
petitioner overlooks the fact that the Top Ten Percent
Plan, though facially neutral, cannot be understood apart
                 Cite as: 579 U. S. ____ (2016)           17

                     Opinion of the Court

from its basic purpose, which is to boost minority enroll­
ment. Percentage plans are “adopted with racially segre­
gated neighborhoods and schools front and center stage.”
Fisher I, 570 U. S., at ___ (GINSBURG, J., dissenting) (slip
op., at 2). “It is race consciousness, not blindness to race,
that drives such plans.” Ibid. Consequently, petitioner
cannot assert simply that increasing the University’s
reliance on a percentage plan would make its admissions
policy more race neutral.
  Even if, as a matter of raw numbers, minority enroll­
ment would increase under such a regime, petitioner
would be hard-pressed to find convincing support for the
proposition that college admissions would be improved if
they were a function of class rank alone. That approach
would sacrifice all other aspects of diversity in pursuit of
enrolling a higher number of minority students. A system
that selected every student through class rank alone
would exclude the star athlete or musician whose grades
suffered because of daily practices and training. It would
exclude a talented young biologist who struggled to main­
tain above-average grades in humanities classes. And it
would exclude a 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, only to find herself
just outside of the top decile of her class.
  These are but examples of the general problem. Class
rank is a single metric, and like any single metric, it will
capture certain types of people and miss others. This does
not imply that students admitted through holistic review
are necessarily more capable or more desirable than those
admitted through the Top Ten Percent Plan. It merely
reflects the fact that privileging one characteristic above
all others does not lead to a diverse student body. Indeed,
to compel universities to admit students based on class
rank alone is in deep tension with the goal of educational
diversity as this Court’s cases have defined it. See Grut-
18        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                      Opinion of the Court

ter, supra, at 340 (explaining that percentage plans “may
preclude the university from conducting the individualized
assessments necessary to assemble a student body that is
not just racially diverse, but diverse along all the qualities
valued by the university”); 758 F. 3d, at 653 (pointing out
that the Top Ten Percent Law leaves out students “who
fell outside their high school’s top ten percent but excelled
in unique ways that would enrich the diversity of [the
University’s] educational experience” and “leaves a gap in
an admissions process seeking to create the multi­
dimensional diversity that [Regents of Univ. of Cal. v.
Bakke, 438 U. S. 265 (1978),] envisions”). At its center,
the Top Ten Percent Plan is a blunt instrument that may
well compromise the University’s own definition of the
diversity it seeks.
   In addition to these fundamental problems, an admis­
sions policy that relies exclusively on class rank creates
perverse incentives for applicants.        Percentage plans
“encourage parents to keep their children in low-
performing segregated schools, and discourage students
from taking challenging classes that might lower their
grade point averages.” Gratz, 539 U. S., at 304, n. 10
(GINSBURG, J., dissenting).
   For all these reasons, although it may be true that the
Top Ten Percent Plan in some instances may provide a
path out of poverty for those who excel at schools lacking
in resources, the Plan cannot serve as the admissions
solution that petitioner suggests. Wherever the balance
between percentage plans and holistic review should rest,
an effective admissions policy cannot prescribe, realisti­
cally, the exclusive use of a percentage plan.
   In short, none of petitioner’s suggested alternatives—
nor other proposals considered or discussed in the course
of this litigation—have been shown to be “available” and
“workable” means through which the University could
have met its educational goals, as it understood and de­
                  Cite as: 579 U. S. ____ (2016)            19

                      Opinion of the Court

fined them in 2008. Fisher I, supra, at ___ (slip op., at 11).
The University has thus met its burden of showing that
the admissions policy it used at the time it rejected peti­
tioner’s application was narrowly tailored.
                         *     *     *
   A university is in large part defined by those intangible
“qualities which are incapable of objective measurement
but which make for greatness.” Sweatt v. Painter, 339
U. S. 629, 634 (1950). Considerable deference is owed to a
university in defining those intangible characteristics, like
student body diversity, that are central to its identity and
educational mission. But still, it remains an enduring
challenge to our Nation’s education system to reconcile the
pursuit of diversity with the constitutional promise of
equal treatment and dignity.
   In striking this sensitive balance, public universities,
like the States themselves, can serve as “laboratories for
experimentation.” United States v. Lopez, 514 U. S. 549,
581 (1995) (KENNEDY, J., concurring); see also New State
Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis,
J., dissenting). The University of Texas at Austin has a
special opportunity to learn and to teach. The University
now has at its disposal valuable data about the manner in
which different approaches to admissions may foster
diversity or instead dilute it. The University must con-
tinue to use this data to scrutinize the fairness of its admis­
sions program; to assess whether changing demographics
have undermined the need for a race-conscious policy; and
to identify the effects, both positive and negative, of the
affirmative-action measures it deems necessary.
   The Court’s affirmance of the University’s admissions
policy today does not necessarily mean the University may
rely on that same policy without refinement. It is the
University’s ongoing obligation to engage in constant
deliberation and continued reflection regarding its admis­
20       FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                    Opinion of the Court

sions policies.
  The judgment of the Court of Appeals is affirmed.

                                           It is so ordered.

  JUSTICE KAGAN took no part in the consideration or
decision of this case.
                  Cite as: 579 U. S. ____ (2016)              1

                      THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
                          _________________

                           No. 14–981
                          _________________


ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY
          OF TEXAS AT AUSTIN, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

            APPEALS FOR THE FIFTH CIRCUIT

                         [June 23, 2016] 


   JUSTICE THOMAS, dissenting.
   I join JUSTICE ALITO’s dissent. As JUSTICE ALITO ex-
plains, the Court’s decision today is irreconcilable with
strict scrutiny, rests on pernicious assumptions about
race, and departs from many of our precedents.
   I write separately to reaffirm that “a State’s use of race
in higher education admissions decisions is categorically
prohibited by the Equal Protection Clause.” Fisher v.
University of Tex. at Austin, 570 U. S. ___, ___ (2013)
(THOMAS, J., concurring) (slip op., at 1). “The Constitution
abhors classifications based on race because every time
the government places citizens on racial registers and
makes race relevant to the provision of burdens or bene-
fits, it demeans us all.” Id., at ___ (slip op., at 2) (internal
quotation marks omitted). That constitutional imperative
does not change in the face of a “faddish theor[y]” that
racial discrimination may produce “educational benefits.”
Id., at ___, ___ (slip op., at 5, 13). The Court was wrong to
hold otherwise in Grutter v. Bollinger, 539 U. S. 306, 343
(2003). I would overrule Grutter and reverse the Fifth
Circuit’s judgment.
                 Cite as: 579 U. S. ____ (2016)            1

                     ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 14–981
                         _________________


ABIGAIL NOEL FISHER, PETITIONER v. UNIVERSITY
          OF TEXAS AT AUSTIN, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

            APPEALS FOR THE FIFTH CIRCUIT

                        [June 23, 2016] 


   JUSTICE ALITO, with whom THE CHIEF JUSTICE and
JUSTICE THOMAS join, dissenting.
   Something strange has happened since our prior deci­
sion in this case. See Fisher v. University of Tex. at Aus­
tin, 570 U. S. ___ (2013) (Fisher I). In that decision, we
held that strict scrutiny requires the University of Texas
at Austin (UT or University) to show that its use of race
and ethnicity in making admissions decisions serves com­
pelling interests and that its plan is narrowly tailored to
achieve those ends. Rejecting the argument that we
should defer to UT’s judgment on those matters, we made
it clear that UT was obligated (1) to identify the interests
justifying its plan with enough specificity to permit a
reviewing court to determine whether the requirements of
strict scrutiny were met, and (2) to show that those re­
quirements were in fact satisfied. On remand, UT failed
to do what our prior decision demanded. The University
has still not identified with any degree of specificity the
interests that its use of race and ethnicity is supposed to
serve. Its primary argument is that merely invoking “the
educational benefits of diversity” is sufficient and that it
need not identify any metric that would allow a court to
determine whether its plan is needed to serve, or is actually
serving, those interests. This is nothing less than the
plea for deference that we emphatically rejected in our
2         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     ALITO, J., dissenting

prior decision. Today, however, the Court inexplicably
grants that request.
   To the extent that UT has ever moved beyond a plea for
deference and identified the relevant interests in more
specific terms, its efforts have been shifting, unpersuasive,
and, at times, less than candid. When it adopted its race-
based plan, UT said that the plan was needed to promote
classroom diversity. See Supp. App. 1a, 24a–25a, 39a;
App. 316a. It pointed to a study showing that African-
American, Hispanic, and Asian-American students were
underrepresented in many classes. See Supp. App. 26a.
But UT has never shown that its race-conscious plan
actually ameliorates this situation. The University pre­
sents no evidence that its admissions officers, in adminis­
tering the “holistic” component of its plan, make any effort
to determine whether an African-American, Hispanic, or
Asian-American student is likely to enroll in classes in
which minority students are underrepresented.           And
although UT’s records should permit it to determine with­
out much difficulty whether holistic admittees are any
more likely than students admitted through the Top Ten
Percent Law, Tex. Educ. Code Ann. §51.803 (West Cum.
Supp. 2015), to enroll in the classes lacking racial or eth­
nic diversity, UT either has not crunched those numbers
or has not revealed what they show. Nor has UT ex­
plained why the underrepresentation of Asian-American
students in many classes justifies its plan, which discrim­
inates against those students.
   At times, UT has claimed that its plan is needed to
achieve a “critical mass” of African-American and His­
panic students, but it has never explained what this term
means. According to UT, a critical mass is neither some
absolute number of African-American or Hispanic stu­
dents nor the percentage of African-Americans or Hispan­
ics in the general population of the State. The term re­
mains undefined, but UT tells us that it will let the courts
                  Cite as: 579 U. S. ____ (2016)            3

                      ALITO, J., dissenting

know when the desired end has been achieved. See App.
314a–315a. This is a plea for deference—indeed, for blind
deference—the very thing that the Court rejected in
Fisher I.
   UT has also claimed at times that the race-based com­
ponent of its plan is needed because the Top Ten Percent
Plan admits the wrong kind of African-American and
Hispanic students, namely, students from poor families
who attend schools in which the student body is predomi­
nantly African-American or Hispanic. As UT put it in its
brief in Fisher I, the race-based component of its admis­
sions plan is needed to admit “[t]he African-American or
Hispanic child of successful professionals in Dallas.” Brief
for Respondents, O. T. 2012, No. 11–345, p. 34.
   After making this argument in its first trip to this
Court, UT apparently had second thoughts, and in the
latest round of briefing UT has attempted to disavow ever
having made the argument. See Brief for Respondents 2
(“Petitioner’s argument that UT’s interest is favoring
‘affluent’ minorities is a fabrication”); see also id., at 15.
But it did, and the argument turns affirmative action on
its head. Affirmative-action programs were created to
help disadvantaged students.
   Although UT now disowns the argument that the Top
Ten Percent Plan results in the admission of the wrong
kind of African-American and Hispanic students, the Fifth
Circuit majority bought a version of that claim. As the
panel majority put it, the Top Ten African-American and
Hispanic admittees cannot match the holistic African-
American and Hispanic admittees when it comes to “rec­
ords of personal achievement,” a “variety of perspectives”
and “life experiences,” and “unique skills.” 758 F. 3d 633,
653 (2014). All in all, according to the panel majority, the
Top Ten Percent students cannot “enrich the diversity of
the student body” in the same way as the holistic admit-
tees. Id., at 654. As Judge Garza put it in dissent, the
4          FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                      ALITO, J., dissenting

panel majority concluded that the Top Ten Percent admit-
tees are “somehow more homogenous, less dynamic, and
more undesirably stereotypical than those admitted under
holistic review.” Id., at 669–670 (Garza, J., dissenting).
   The Fifth Circuit reached this conclusion with little
direct evidence regarding the characteristics of the Top
Ten Percent and holistic admittees. Instead, the assump­
tion behind the Fifth Circuit’s reasoning is that most of
the African-American and Hispanic students admitted
under the race-neutral component of UT’s plan were able
to rank in the top decile of their high school classes only
because they did not have to compete against white and
Asian-American students. This insulting stereotype is not
supported by the record. African-American and Hispanic
students admitted under the Top Ten Percent Plan receive
higher college grades than the African-American and
Hispanic students admitted under the race-conscious
program. See Supp. App. 164a–165a.
   It should not have been necessary for us to grant review
a second time in this case, and I have no greater desire
than the majority to see the case drag on. But that need
not happen. When UT decided to adopt its race-conscious
plan, it had every reason to know that its plan would have
to satisfy strict scrutiny and that this meant that it would
be its burden to show that the plan was narrowly tailored
to serve compelling interests. UT has failed to make that
showing. By all rights, judgment should be entered in
favor of petitioner.
   But if the majority is determined to give UT yet another
chance, we should reverse and send this case back to the
District Court.      What the majority has now done—
awarding a victory to UT in an opinion that fails to ad­
dress the important issues in the case—is simply wrong.
                             I
    Over the past 20 years, UT has frequently modified its
                 Cite as: 579 U. S. ____ (2016)           5

                     ALITO, J., dissenting

admissions policies, and it has generally employed race
and ethnicity in the most aggressive manner permitted
under controlling precedent.
  Before 1997, race was considered directly as part of the
general admissions process, and it was frequently a con­
trolling factor. Admissions were based on two criteria:
(1) the applicant’s Academic Index (AI), which was com­
puted from standardized test scores and high school class
rank, and (2) the applicant’s race. In 1996, the last year
this race-conscious system was in place, 4.1% of enrolled
freshmen were African-American, 14.7% were Asian-
American, and 14.5% were Hispanic. Supp. App. 43a.
  The Fifth Circuit’s decision in Hopwood v. Texas, 78
F. 3d 932 (1996), prohibited UT from using race in admis­
sions. In response to Hopwood, beginning with the 1997
admissions cycle, UT instituted a “holistic review” process
in which it considered an applicant’s AI as well as a Per­
sonal Achievement Index (PAI) that was intended, among
other things, to increase minority enrollment. The race-
neutral PAI was a composite of scores from two essays and
a personal achievement score, which in turn was based on
a holistic review of an applicant’s leadership qualities,
extracurricular activities, honors and awards, work expe­
rience, community service, and special circumstances.
Special consideration was given to applicants from poor
families, applicants from homes in which a language other
than English was customarily spoken, and applicants from
single-parent households. Because this race-neutral plan
gave a preference to disadvantaged students, it had the
effect of “disproportionately” benefiting minority candi­
dates. 645 F. Supp. 2d 587, 592 (WD Tex. 2009).
  The Texas Legislature also responded to Hopwood. In
1997, it enacted the Top Ten Percent Plan, which man­
dated that UT admit all Texas seniors who rank in the top
10% of their high school classes. This facially race-neutral
law served to equalize competition between students who
6         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                      ALITO, J., dissenting

live in relatively affluent areas with superior schools and
students in poorer areas served by schools offering fewer
opportunities for academic excellence. And by benefiting
the students in the latter group, this plan, like the race-
neutral holistic plan already adopted by UT, tended to
benefit African-American and Hispanic students, who are
often trapped in inferior public schools. 758 F. 3d, at 650–
653.
   Starting in 1998, when the Top Ten Percent Plan took
effect, UT’s holistic, race-neutral AI/PAI system continued
to be used to fill the seats in the entering class that were
not taken by Top Ten Percent students. The AI/PAI sys­
tem was also used to determine program placement for
all incoming students, including the Top Ten Percent
students.
   “The University’s revised admissions process, coupled
with the operation of the Top Ten Percent Law, resulted in
a more racially diverse environment at the University.”
Fisher I, 570 U. S., at ___ (slip op., at 3). In 2000, UT
announced that its “enrollment levels for African Ameri­
can and Hispanic freshmen have returned to those of
1996, the year before the Hopwood decision prohibited the
consideration of race in admissions policies.” App. 393a;
see also Supp. App. 23a–24a (pre-Hopwood diversity levels
were “restored” in 1999); App. 392a–393a (“The ‘Top 10
Percent Law’ is Working for Texas” and “has enabled us to
diversify enrollment at UT Austin with talented students
who succeed”). And in 2003, UT proclaimed that it had
“effectively compensated for the loss of affirmative action.”
Id., at 396a; see also id., at 398a (“Diversity efforts at The
University of Texas at Austin have brought a higher num­
ber of freshman minority students—African Americans,
Hispanics and Asian-Americans—to the campus than
were enrolled in 1996, the year a court ruling ended the
use of affirmative action in the university’s enrollment
process”). By 2004—the last year under the holistic, race­
                     Cite as: 579 U. S. ____ (2016)                     7

                          ALITO, J., dissenting

neutral AI/PAI system—UT’s entering class was 4.5%
African-American, 17.9% Asian-American, and 16.9%
Hispanic. Supp. App. 156a. The 2004 entering class thus
had a higher percentage of African-Americans, Asian-
Americans, and Hispanics than the class that entered in
1996, when UT had last employed racial preferences.
  Notwithstanding these lauded results, UT leapt at the
opportunity to reinsert race into the process. On June 23,
2003, this Court decided Grutter v. Bollinger, 539 U. S.
306 (2003), which upheld the University of Michigan Law
School’s race-conscious admissions system. In Grutter, the
Court warned that a university contemplating the consid­
eration of race as part of its admissions process must
engage in “serious, good faith consideration of workable
race-neutral alternatives that will achieve the diversity
the university seeks.” Id., at 339. Nevertheless, on the
very day Grutter was handed down, UT’s president an­
nounced that “[t]he University of Texas at Austin will
modify its admissions procedures” in light of Grutter,
including by “implementing procedures at the undergrad­
uate level that combine the benefits of the Top 10 Percent
Law with affirmative action programs.” App. 406a–407a
(emphasis added).1 UT purports to have later engaged in
——————
  1 See also Nissimov, UT To Resume Factoring in Applicants’ Race: UT
To Reintroduce Race-Based Criteria, Houston Chronicle, June 24, 2003,
p. 4A (“President Larry Faulkner said Monday his institution will
quickly develop race-based admissions criteria by the fall that would be
used for the summer and fall of 2004, after being given the green light
to do so by Monday’s U. S. Supreme Court ruling”); Silverstein, Hong, &
Trounson, State Finds Itself Hemmed In, L. A. Times, June 24, 2003,
p. A1 (explaining UT’s “intention, after dropping race as a consideration,
to move swiftly to restore its use in admissions” in time for “the next
admissions cycle”); Hart, Texas Ponders Changes to 10% Law, Boston
Globe, June 25, 2003, p. A3 (“Soon after Monday’s ruling, University of
Texas President Larry Faulkner said that the school will overhaul
procedures” in order to allow consideration of “[t]he race of an appli­
cant” for “students enrolling in fall 2004”); Ambiguity Remains; High
8          FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                        ALITO, J., dissenting

“almost a year of deliberations,” id., at 482a, but there is
no evidence that the reintroduction of race into the admis­
sions process was anything other than a foregone conclu­
sion following the president’s announcement.
  “The University’s plan to resume race-conscious admis­
sions was given formal expression in June 2004 in an
internal document entitled Proposal to Consider Race and
Ethnicity in Admissions” (Proposal). Fisher I, supra, at
___ (slip op., at 4). The Proposal stated that UT needed
race-conscious admissions because it had not yet achieved
a “critical mass of racial diversity.” Supp. App. 25a. In
support of this claim, UT cited two pieces of evidence.
First, it noted that there were “significant differences
between the racial and ethnic makeup of the University’s
undergraduate population and the state’s population.” Id.,
at 24a. Second, the Proposal “relied in substantial part,”
Fisher I, supra, at ___ (slip op., at 4), on a study of a sub­
set of undergraduate classes containing at least five stu­
dents, see Supp. App. 26a. The study showed that among
select classes with five or more students, 52% had no
African-Americans, 16% had no Asian-Americans, and
12% had no Hispanics. Ibid. Moreover, the study showed,
only 21% of these classes had two or more African-
Americans, 67% had two or more Asian-Americans, and
70% had two or more Hispanics. See ibid. Based on this
study, the Proposal concluded that UT “has not reached a
critical mass at the classroom level.” Id., at 24a. The
Proposal did not analyze the backgrounds, life experiences,
leadership qualities, awards, extracurricular activities,
community service, personal attributes, or other charac­
teristics of the minority students who were already being

—————— 

Court Leaves Quota Questions Looming, El Paso Times, June 25, 2003,

p. 6B (“The University of Texas at Austin’s president, Larry Faulkner,
has already announced that new admissions policies would be drafted
to include race as a factor”).
                  Cite as: 579 U. S. ____ (2016)             9

                      ALITO, J., dissenting

admitted to UT under the holistic, race-neutral process.
   “To implement the Proposal the University included a
student’s race as a component of the PAI score, beginning
with applicants in the fall of 2004.” Fisher I, 570 U. S., at
___ (slip op., at 4). “The University asks students to clas­
sify themselves from among five predefined racial catego­
ries on the application.” Ibid. “Race is not assigned an
explicit numerical value, but it is undisputed that race is a
meaningful factor.” Ibid. UT decided to use racial prefer­
ences to benefit African-American and Hispanic students
because it considers those groups “underrepresented
minorities.” Supp. App. 25a; see also App. 445a–446a
(defining “underrepresented minorities” as “Hispanic[s]
and African Americans”). Even though UT’s classroom
study showed that more classes lacked Asian-American
students than lacked Hispanic students, Supp. App. 26a,
UT deemed Asian-Americans “overrepresented” based on
state demographics, 645 F. Supp. 2d, at 606; see also ibid.
(“It is undisputed that UT considers African-Americans
and Hispanics to be underrepresented but does not con­
sider Asian-Americans to be underrepresented”).
   Although UT claims that race is but a “factor of a factor
of a factor of a factor,” id., at 608, UT acknowledges that
“race is the only one of [its] holistic factors that appears on
the cover of every application,” Tr. of Oral Arg. 54 (Oct. 10,
2012). “Because an applicant’s race is identified at the
front of the admissions file, reviewers are aware of it
throughout the evaluation.” 645 F. Supp. 2d, at 597; see
also id., at 598 (“[A] candidate’s race is known throughout
the application process”). Consideration of race therefore
pervades every aspect of UT’s admissions process. See
App. 219a (“We are certainly aware of the applicant’s race.
It’s on the front page of the application that’s being read
[and] is used in context with everything else that’s part of
the applicant’s file”). This is by design, as UT considers its
use of racial classifications to be a benign form of “social
10        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                      ALITO, J., dissenting

engineering.” Powers, Why Schools Still Need Affirmative
Action, National L. J., Aug. 4, 2014, p. 22 (editorial by Bill
Powers, President of UT from 2006–2015) (“Opponents
accuse defenders of race-conscious admissions of being in
favor of ‘social engineering,’ to which I believe we should
reply, ‘Guilty as charged’ ”).
   Notwithstanding the omnipresence of racial classifica­
tions, UT claims that it keeps no record of how those
classifications affect its process. “The university doesn’t
keep any statistics on how many students are affected by
the consideration of race in admissions decisions,” and it
“does not know how many minority students are affected
in a positive manner by the consideration of race.” App.
337a. According to UT, it has no way of making these
determinations. See id., at 320a–322a. UT says that it
does not tell its admissions officers how much weight to
give to race. See Deposition of Gary Lavergne 43–45,
Record in No. 1:08–CV–00263 (WD Tex.), Doc. 94–9
(Lavergne Deposition). And because the influence of race
is always “contextual,” UT claims, it cannot provide even a
single example of an instance in which race impacted a
student’s odds of admission. See App. 220a (“Q. Could you
give me an example where race would have some impact
on an applicant’s personal achievement score? A. To be
honest, not really . . . . [I]t’s impossible to say—to give you
an example of a particular student because it’s all context-
ual”). Accordingly, UT asserts that it has no idea which
students were admitted as a result of its race-conscious
system and which students would have been admitted
under a race-neutral process. UT thus makes no effort to
assess how the individual characteristics of students
admitted as the result of racial preferences differ (or do
not differ) from those of students who would have been
admitted without them.
                 Cite as: 579 U. S. ____ (2016) 
         11

                     ALITO, J., dissenting


                              II

   UT’s race-conscious admissions program cannot satisfy
strict scrutiny. UT says that the program furthers its
interest in the educational benefits of diversity, but it has
failed to define that interest with any clarity or to demon­
strate that its program is narrowly tailored to achieve that
or any other particular interest. By accepting UT’s ra­
tionales as sufficient to meet its burden, the majority
licenses UT’s perverse assumptions about different groups
of minority students—the precise assumptions strict
scrutiny is supposed to stamp out.
                              A
   “The moral imperative of racial neutrality is the driving
force of the Equal Protection Clause.” Richmond v. J. A.
Croson Co., 488 U. S. 469, 518 (1989) (KENNEDY, J., con­
curring in part and concurring in judgment). “At the heart
of the Constitution’s guarantee of equal protection lies the
simple command that the Government must treat citizens
as individuals, not as simply components of a racial, reli­
gious, sexual or national class.” Miller v. Johnson, 515
U. S. 900, 911 (1995) (internal quotation marks omitted).
“Race-based assignments embody stereotypes that treat
individuals as the product of their race, evaluating their
thoughts and efforts—their very worth as citizens—
according to a criterion barred to the Government by
history and the Constitution.” Id., at 912 (internal quota­
tion marks omitted). Given our constitutional commit­
ment to “the doctrine of equality,” “ ‘[d]istinctions between
citizens solely because of their ancestry are by their very
nature odious to a free people.’ ” Rice v. Cayetano, 528
U. S. 495, 517 (2000) (quoting Hirabayashi v. United
States, 320 U. S. 81, 100 (1943)).
   “[B]ecause racial characteristics so seldom provide a
relevant basis for disparate treatment, the Equal Protec­
tion Clause demands that racial classifications . . . be
12        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     ALITO, J., dissenting

subjected to the most rigid scrutiny.” Fisher I, 570 U. S.,
at ___ (slip op., at 8) (internal quotation marks and cita­
tions omitted). “[J]udicial review must begin from the
position that ‘any official action that treats a person dif­
ferently on account of his race or ethnic origin is inher-
ently suspect.’ ” Ibid.; see also Grutter, 539 U. S., at 388
(KENNEDY, J., dissenting) (“ ‘Racial and ethnic distinctions
of any sort are inherently suspect and thus call for the
most exacting judicial examination’ ”). Under strict scru­
tiny, the use of race must be “necessary to further a com­
pelling governmental interest,” and the means employed
must be “ ‘specifically and narrowly’ ” tailored to accom­
plish the compelling interest. Id., at 327, 333 (O’Connor,
J., for the Court).
    The “higher education dynamic does not change” this
standard. Fisher I, supra, at ___ (slip op., at 12). “Racial
discrimination [is] invidious in all contexts,” Edmonson v.
Leesville Concrete Co., 500 U. S. 614, 619 (1991), and
“ ‘[t]he analysis and level of scrutiny applied to determine
the validity of [a racial] classification do not vary simply
because the objective appears acceptable,’ ” Fisher I, supra,
at ___ (slip op., at 12).
    Nor does the standard of review “ ‘depen[d] on the race
of those burdened or benefited by a particular classifica­
tion.’ ” Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (quot­
ing Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 224
(1995)); see also Miller, supra, at 904 (“This rule obtains
with equal force regardless of ‘the race of those burdened
or benefited by a particular classification’ ” (quoting
Croson, supra, at 494 (plurality opinion of O’Connor, J.)).
“Thus, ‘any person, of whatever race, has the right to
demand that any governmental actor subject to the Con­
stitution justify any racial classification subjecting that
person to unequal treatment under the strictest of judicial
scrutiny.’ ” Gratz, supra, at 270 (quoting Adarand, supra,
at 224).
                 Cite as: 579 U. S. ____ (2016)           13

                     ALITO, J., dissenting

   In short, in “all contexts,” Edmonson, supra, at 619,
racial classifications are permitted only “as a last resort,”
when all else has failed, Croson, supra, at 519 (opinion of
KENNEDY, J.). “Strict scrutiny is a searching examination,
and it is the government that bears the burden” of proof.
Fisher I, 570 U. S., at ___ (slip op., at 8). To meet this
burden, the government must “demonstrate with clarity
that its ‘purpose or interest is both constitutionally per­
missible and substantial, and that its use of the classifica­
tion is necessary . . . to the accomplishment of its pur­
pose.’ ” Id., at ___ (slip op., at 7) (emphasis added).
                             B
   Here, UT has failed to define its interest in using
racial preferences with clarity. As a result, the narrow
tailoring inquiry is impossible, and UT cannot satisfy
strict scrutiny.
   When UT adopted its challenged policy, it characterized
its compelling interest as obtaining a “ ‘critical mass’ ” of
underrepresented minorities. Id., at ___ (slip op., at 1).
The 2004 Proposal claimed that “[t]he use of race-neutral
policies and programs has not been successful in achieving
a critical mass of racial diversity.” Supp. App. 25a; see
Fisher v. University of Tex. at Austin, 631 F. 3d 213, 226
(CA5 2011) (“[T]he 2004 Proposal explained that UT had
not yet achieved the critical mass of underrepresented
minority students needed to obtain the full educational
benefits of diversity”). But to this day, UT has not
explained in anything other than the vaguest terms what
it means by “critical mass.” In fact, UT argues that it
need not identify any interest more specific than “securing
the educational benefits of diversity.” Brief for Respond­
ents 15.
   UT has insisted that critical mass is not an absolute
number. See Tr. of Oral Arg. 39 (Oct. 10, 2012) (declaring
that UT is not working toward any particular number of
14        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     ALITO, J., dissenting

African-American or Hispanic students); App. 315a (con­
firming that UT has not defined critical mass as a number
and has not projected when it will attain critical mass).
Instead, UT prefers a deliberately malleable “we’ll know it
when we see it” notion of critical mass. It defines “critical
mass” as “an adequate representation of minority students
so that the . . . educational benefits that can be derived
from diversity can actually happen,” and it declares that it
“will . . . know [that] it has reached critical mass” when it
“see[s] the educational benefits happening.” Id., at 314a–
315a. In other words: Trust us.
   This intentionally imprecise interest is designed to
insulate UT’s program from meaningful judicial review.
As Judge Garza explained:
     “[T]o meet its narrow tailoring burden, the University
     must explain its goal to us in some meaningful way.
     We cannot undertake a rigorous ends-to-means nar­
     row tailoring analysis when the University will not
     define the ends. We cannot tell whether the admis­
     sions program closely ‘fits’ the University’s goal when
     it fails to objectively articulate its goal. Nor can we
     determine whether considering race is necessary for
     the University to achieve ‘critical mass,’ or whether
     there are effective race-neutral alternatives, when it
     has not described what ‘critical mass’ requires.” 758
     F. 3d, at 667 (dissenting opinion).
Indeed, without knowing in reasonably specific terms
what critical mass is or how it can be measured, a review­
ing court cannot conduct the requisite “careful judicial
inquiry” into whether the use of race was “ ‘necessary.’ ”
Fisher I, supra, at ___ (slip op., at 10).
   To be sure, I agree with the majority that our prece­
dents do not require UT to pinpoint “an interest in enrol­
ling a certain number of minority students.” Ante, at 11.
But in order for us to assess whether UT’s program is
                 Cite as: 579 U. S. ____ (2016)           15

                     ALITO, J., dissenting

narrowly tailored, the University must identify some sort
of concrete interest. “Classifying and assigning” students
according to race “requires more than . . . an amorphous
end to justify it.” Parents Involved in Community Schools
v. Seattle School Dist. No. 1, 551 U. S. 701, 735 (2007).
Because UT has failed to explain “with clarity,” Fisher I,
supra, at ___ (slip op., at 7), why it needs a race-conscious
policy and how it will know when its goals have been met,
the narrow tailoring analysis cannot be meaningfully
conducted. UT therefore cannot satisfy strict scrutiny.
   The majority acknowledges that “asserting an interest
in the educational benefits of diversity writ large is insuf­
ficient,” and that “[a] university’s goals cannot be elusory
or amorphous—they must be sufficiently measurable to
permit judicial scrutiny of the policies adopted to reach
them.” Ante, at 12. According to the majority, however,
UT has articulated the following “concrete and precise
goals”: “the destruction of stereotypes, the promot[ion of ]
cross-racial understanding, the preparation of a student
body for an increasingly diverse workforce and society,
and the cultivat[ion of] a set of leaders with legitimacy in
the eyes of the citizenry.” Ibid. (internal quotation marks
omitted).
   These are laudable goals, but they are not concrete or
precise, and they offer no limiting principle for the use of
racial preferences. For instance, how will a court ever be
able to determine whether stereotypes have been ade­
quately destroyed? Or whether cross-racial understanding
has been adequately achieved? If a university can justify
racial discrimination simply by having a few employees
opine that racial preferences are necessary to accomplish
these nebulous goals, see ante, at 12–13 (citing only self-
serving statements from UT officials), then the narrow
tailoring inquiry is meaningless. Courts will be required
to defer to the judgment of university administrators, and
affirmative-action policies will be completely insulated
16        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                       ALITO, J., dissenting

from judicial review.
   By accepting these amorphous goals as sufficient for UT
to carry its burden, the majority violates decades of prece­
dent rejecting blind deference to government officials
defending “ ‘inherently suspect’ ” classifications. Miller,
515 U. S., at 904 (citing Regents of Univ. of Cal. v. Bakke,
438 U. S. 265, 291 (1978) (opinion of Powell, J.)); see also,
e.g., Miller, supra, at 922 (“Our presumptive skepticism of
all racial classifications . . . prohibits us . . . from accepting
on its face the Justice Department’s conclusion” (citation
omitted)); Croson, 488 U. S., at 500 (“[T]he mere recitation
of a ‘benign’ or legitimate purpose for a racial classification
is entitled to little or no weight”); id., at 501 (“The history
of racial classifications in this country suggests that blind
judicial deference to legislative or executive pronounce­
ments of necessity has no place in equal protection analy­
sis”). Most troublingly, the majority’s uncritical deference
to UT’s self-serving claims blatantly contradicts our deci­
sion in the prior iteration of this very case, in which we
faulted the Fifth Circuit for improperly “deferring to the
University’s good faith in its use of racial classifications.”
Fisher I, 570 U. S., at ___ (slip op., at 12). As we empha­
sized just three years ago, our precedent “ma[kes] clear
that it is for the courts, not for university administrators,
to ensure that” an admissions process is narrowly tailored.
Id., at ___ (slip op., at 10).
   A court cannot ensure that an admissions process is
narrowly tailored if it cannot pin down the goals that the
process is designed to achieve. UT’s vague policy goals are
“so broad and imprecise that they cannot withstand strict
scrutiny.” Parents Involved, supra, at 785 (KENNEDY, J.,
concurring in part and concurring in judgment).
                           C
  Although UT’s primary argument is that it need not
point to any interest more specific than “the educational
                 Cite as: 579 U. S. ____ (2016)          17

                     ALITO, J., dissenting

benefits of diversity,” Brief for Respondents 15, it has—at
various points in this litigation—identified four more
specific goals: demographic parity, classroom diversity,
intraracial diversity, and avoiding racial isolation. Nei­
ther UT nor the majority has demonstrated that any of
these four goals provides a sufficient basis for satisfying
strict scrutiny. And UT’s arguments to the contrary de­
pend on a series of invidious assumptions.
                               1
   First, both UT and the majority cite demographic data
as evidence that African-American and Hispanic students
are “underrepresented” at UT and that racial preferences
are necessary to compensate for this underrepresentation.
See, e.g., Supp. App. 24a; ante, at 14. But neither UT nor
the majority is clear about the relationship between Texas
demographics and UT’s interest in obtaining a critical
mass.
   Does critical mass depend on the relative size of a
particular group in the population of a State? For exam­
ple, is the critical mass of African-Americans and Hispan­
ics in Texas, where African-Americans are about 11.8%
of the population and Hispanics are about 37.6%, different
from the critical mass in neighboring New Mexico, where
the African-American population is much smaller (about
2.1%) and the Hispanic population constitutes a higher
percentage of the State’s total (about 46.3%)? See United
States Census Bureau, QuickFacts, online at https://
www.census.gov/quickfacts/table/PST045215/35,48 (all Inter­
net materials as last visited June 21, 2016).
   UT’s answer to this question has veered back and forth.
At oral argument in Fisher I, UT’s lawyer indicated that
critical mass “could” vary “from group to group” and from
“state to state.” See Tr. of Oral Arg. 40 (Oct. 10, 2012).
And UT initially justified its race-conscious plan at least
in part on the ground that “significant differences between
18         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                        ALITO, J., dissenting

the racial and ethnic makeup of the University’s under­
graduate population and the state’s population prevent
the University from fully achieving its mission.” Supp.
App. 24a; see also id., at 16a (“[A] critical mass in Texas is
necessarily larger than a critical mass in Michigan,” be­
cause “[a] majority of the college-age population in Texas
is African American or Hispanic”); Fisher, 631 F. 3d, at
225–226, 236 (concluding that UT’s reliance on Texas
demographics reflects “measured attention to the commu­
nity it serves”); Brief for Respondents in No. 11–345, at 41
(noting that critical mass may hinge, in part, on “the
communities that universities serve”). UT’s extensive
reliance on state demographics is also revealed by its
substantial focus on increasing the representation of
Hispanics, but not Asian-Americans, see, e.g., 645 F. Supp.
2d, at 606; Supp. App. 25a; App. 445a–446a, because
Hispanics, but not Asian-Americans, are underrepre-
sented at UT when compared to the demographics of the
State.2
  On the other hand, UT’s counsel asserted that the criti­
cal mass for the University is “not at all” dependent on the
demographics of Texas, and that UT’s “concept [of] critical
mass isn’t tied to demographic[s].” Tr. of Oral Arg. 40, 49
(Oct. 10, 2012). And UT’s Fisher I brief expressly agreed
that “a university cannot look to racial demographics—
and then work backward in its admissions process to meet
a target tied to such demographics.” Brief for Respond­
ents in No. 11–345, at 31; see also Brief for Respondents
——————
  2 In 2010, 3.8% of Texas’s population was Asian, but 18.6% of
UT’s enrolled, first-time freshmen in 2008 were Asian-American. See
Supp. App. 156a; United States Census Bureau, QuickFacts (Quick-
Facts Texas), online at https://www.census.gov/quickfacts/table/
PST045215/48. By contrast, 37.6% of Texas’s 2010 population identi­
fied as Hispanic or Latino, but a lower percentage—19.9%—of UT’s
enrolled, first-time freshmen in 2008 were Hispanic. See Supp. App.
156a; QuickFacts Texas.
                  Cite as: 579 U. S. ____ (2016)           19

                      ALITO, J., dissenting

26–27 (disclaiming any interest in demographic parity).
   To the extent that UT is pursuing parity with Texas
demographics, that is nothing more than “outright racial
balancing,” which this Court has time and again held
“patently unconstitutional.” Fisher I, 570 U. S., at ___
(slip op., at 9); see Grutter, 539 U. S., at 330 (“[O]utright
racial balancing . . . is patently unconstitutional”); Free­
man v. Pitts, 503 U. S. 467, 494 (1992) (“Racial balance is
not to be achieved for its own sake”); Croson, 488 U. S., at
507 (rejecting goal of “outright racial balancing”); Bakke,
438 U. S., at 307 (opinion of Powell, J.) (“If petitioner’s
purpose is to assure within its student body some specified
percentage of a particular group merely because of its race
or ethnic origin, such a preferential purpose must be
rejected . . . as facially invalid”). An interest “linked to
nothing other than proportional representation of various
races . . . would support indefinite use of racial classifica­
tions, employed first to obtain the appropriate mixture of
racial views and then to ensure that the [program] contin­
ues to reflect that mixture.” Metro Broadcasting, Inc. v.
FCC, 497 U. S. 547, 614 (1990) (O’Connor, J., dissenting).
And as we held in Fisher I, “ ‘[r]acial balancing is not
transformed from “patently unconstitutional” to a compel­
ling state interest simply by relabeling it “racial diver­
sity.” ’ ” 570 U. S., at ___ (slip op., at 9) (quoting Parents
Involved, 551 U. S., at 732).
   The record here demonstrates the pitfalls inherent in
racial balancing. Although UT claims an interest in the
educational benefits of diversity, it appears to have paid
little attention to anything other than the number of
minority students on its campus and in its classrooms.
UT’s 2004 Proposal illustrates this approach by repeatedly
citing numerical assessments of the racial makeup of the
student body and various classes as the justification for
adopting a race-conscious plan. See, e.g., Supp. App. 24a–
26a, 30a. Instead of focusing on the benefits of diversity,
20        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     ALITO, J., dissenting

UT seems to have resorted to a simple racial census.
   The majority, for its part, claims that “[a]lthough de­
mographics alone are by no means dispositive, they do
have some value as a gauge of the University’s ability to
enroll students who can offer underrepresented perspec­
tives.” Ante, at 14. But even if UT merely “view[s] the
demographic disparity as cause for concern,” Brief for
United States as Amicus Curiae 29, and is seeking only to
reduce—rather than eliminate—the disparity, that unde­
fined goal cannot be properly subjected to strict scrutiny.
In that case, there is simply no way for a court to know
what specific demographic interest UT is pursuing, why a
race-neutral alternative could not achieve that interest,
and when that demographic goal would be satisfied. If a
demographic discrepancy can serve as “a gauge” that
justifies the use of racial discrimination, ante, at 14, then
racial discrimination can be justified on that basis until
demographic parity is reached. There is no logical stop­
ping point short of patently unconstitutional racial balanc­
ing. Demographic disparities thus cannot be used to
satisfy strict scrutiny here. See Croson, supra, at 498
(rejecting a municipality’s assertion that its racial set-
aside program was justified in light of past discrimination
because that assertion had “ ‘no logical stopping point’ ”
and could continue until the percentage of government
contracts awarded to minorities “mirrored the percentage
of minorities in the population as a whole”); Wygant v.
Jackson Bd. of Ed., 476 U. S. 267, 275 (1986) (plurality
opinion) (rejecting the government’s asserted interest
because it had “no logical stopping point”).
                            2
  The other major explanation UT offered in the Proposal
was its desire to promote classroom diversity. The Pro­
posal stressed that UT “has not reached a critical mass at
the classroom level.” Supp. App. 24a (emphasis added);
                     Cite as: 579 U. S. ____ (2016)                  21

                         ALITO, J., dissenting

see also id., at 1a, 25a, 39a; App. 316a. In support of this
proposition, UT relied on a study of select classes contain­
ing five or more students. As noted above, the study
indicated that 52% of these classes had no African-
Americans, 16% had no Asian-Americans, and 12% had no
Hispanics. Supp. App. 26a. The study further suggested
that only 21% of these classes had two or more African-
Americans, 67% had two or more Asian-Americans, and
70% had two or more Hispanics. See ibid. Based on this
study, UT concluded that it had a “compelling educational
interest” in employing racial preferences to ensure that it
did not “have large numbers of classes in which there are
no students—or only a single student—of a given un­
derrepresented race or ethnicity.” Id., at 25a.
  UT now equivocates, disclaiming any discrete interest in
classroom diversity. See Brief for Respondents 26–27.
Instead, UT has taken the position that the lack of class­
room diversity was merely a “red flag that UT had not yet
fully realized” “the constitutionally permissible education­
al benefits of diversity.” Brief for Respondents in No. 11–
345, at 43. But UT has failed to identify the level of class­
room diversity it deems sufficient, again making it im-
possible to apply strict scrutiny.3 A reviewing court can­
not determine whether UT’s race-conscious program
was necessary to remove the so-called “red flag” without
understanding the precise nature of that goal or know-
ing when the “red flag” will be considered to have
disappeared.
  Putting aside UT’s effective abandonment of its interest
in classroom diversity, the evidence cited in support of
that interest is woefully insufficient to show that UT’s

——————
  3 IfUT’s goal is to have at least two African-Americans, two Hispan­
ics, and two Asian-Americans present in each of the relevant class­
rooms, that goal is literally unreachable in classes of five and practi-
cally unreachable in many other small classes.
22         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                         ALITO, J., dissenting

race-conscious plan was necessary to achieve the educa­
tional benefits of a diverse student body. As far as the
record shows, UT failed to even scratch the surface of the
available data before reflexively resorting to racial prefer­
ences. For instance, because UT knows which students
were admitted through the Top Ten Percent Plan and
which were not, as well as which students enrolled in
which classes, it would seem relatively easy to determine
whether Top Ten Percent students were more or less likely
than holistic admittees to enroll in the types of classes
where diversity was lacking. But UT never bothered to
figure this out. See ante, at 9 (acknowledging that UT
submitted no evidence regarding “how students admitted
solely based on their class rank differ in their contribution
to diversity from students admitted through holistic re­
view”). Nor is there any indication that UT instructed
admissions officers to search for African-American and
Hispanic applicants who would fill particular gaps at the
classroom level. Given UT’s failure to present such evi­
dence, it has not demonstrated that its race-conscious
policy would promote classroom diversity any better than
race-neutral options, such as expanding the Top Ten
Percent Plan or using race-neutral holistic admissions.
   Moreover, if UT is truly seeking to expose its students to
a diversity of ideas and perspectives, its policy is poorly
tailored to serve that end. UT’s own study—which the
majority touts as the best “nuanced quantitative data”
supporting UT’s position, ante, at 15—demonstrated that
classroom diversity was more lacking for students classi­
fied as Asian-American than for those classified as His­
panic. Supp. App. 26a. But the UT plan discriminates
against Asian-American students.4 UT is apparently
——————
  4 The majority’s assertion that UT’s race-based policy does not dis­

criminate against Asian-American students, see ante, at 5–6, defies the
laws of mathematics. UT’s program is clearly designed to increase the
                    Cite as: 579 U. S. ____ (2016)                  23

                         ALITO, J., dissenting

unconcerned that Asian-Americans “may be made to feel
isolated or may be seen as . . . ‘spokesperson[s]’ of their
race or ethnicity.” Id., at 69a; see id., at 25a. And unless
the University is engaged in unconstitutional racial bal­
ancing based on Texas demographics (where Hispanics
outnumber Asian-Americans), see Part II–C–1, supra, it
seemingly views the classroom contributions of Asian-
American students as less valuable than those of Hispanic
students. In UT’s view, apparently, “Asian Americans are
not worth as much as Hispanics in promoting ‘cross-racial
understanding,’ breaking down ‘racial stereotypes,’ and
enabling students to ‘better understand persons of differ­
ent races.’ ” Brief for Asian American Legal Foundation
et al. as Amici Curiae 11 (representing 117 Asian-
American organizations). The majority opinion effectively
endorses this view, crediting UT’s reliance on the class­
room study as proof that the University assessed its need
for racial discrimination (including racial discrimination
that undeniably harms Asian-Americans) “with care.”
Ante, at 15.
  While both the majority and the Fifth Circuit rely on
UT’s classroom study, see ante, at 15; 758 F. 3d, at 658–
659, they completely ignore its finding that Hispanics are
better represented than Asian-Americans in UT class­
rooms. In fact, they act almost as if Asian-American
students do not exist. See ante, at 14 (mentioning Asian-
Americans only a single time outside of parentheticals,
and not in the context of the classroom study); 758 F. 3d,
——————
number of African-American and Hispanic students by giving them an
admissions boost vis-à-vis other applicants. See, e.g., Supp. App. 25a;
App. 445a–446a; cf. 645 F. Supp. 2d 587, 606 (WD Tex. 2009); see also
ante, at 15 (citing increases in the presence of African-Americans and
Hispanics at UT as evidence that its race-based program was success­
ful). Given a “limited number of spaces,” App. 250a, providing a boost
to African-Americans and Hispanics inevitably harms students who do
not receive the same boost by decreasing their odds of admission.
24          FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                          ALITO, J., dissenting

at 658 (mentioning Asian-Americans only a single time).5
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 discre­
tion 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

——————
  5 In particular, the Fifth Circuit’s willful blindness to Asian-American

students is absolutely shameless. For instance, one of the Fifth Cir­
cuit’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 analy­
sis 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.
                  Cite as: 579 U. S. ____ (2016)           25

                      ALITO, J., dissenting

favor.” Metro Broadcasting, 497 U. S., at 632 (KENNEDY,
J., dissenting). And the Court’s willingness to allow this
“discrimination against individuals of Asian descent in UT
admissions is particularly troubling, in light of the long
history of discrimination against Asian Americans, espe­
cially in education.” Brief for Asian American Legal
Foundation et al. as Amici Curiae 6; see also, e.g., id., at
16–17 (discussing the placement of Chinese-Americans in
“ ‘separate but equal’ ” public schools); Gong Lum v. Rice,
275 U. S. 78, 81–82 (1927) (holding that a 9-year-old
Chinese-American girl could be denied entry to a “white”
school because she was “a member of the Mongolian or
yellow race”). In sum, “[w]hile the Court repeatedly refers
to the preferences as favoring ‘minorities,’ . . . it must be
emphasized that the discriminatory policies upheld today
operate to exclude” Asian-American students, who “have
not made [UT’s] list” of favored groups. Metro Broadcast­
ing, supra, at 632 (KENNEDY, J., dissenting).
    Perhaps the majority finds discrimination against
Asian-American students benign, since Asian-Americans
are “overrepresented” at UT. 645 F. Supp. 2d, at 606. But
“[h]istory should teach greater humility.” Metro Broad­
casting, 497 U. S., at 609 (O’Connor, J., dissenting).
“ ‘[B]enign’ carries with it no independent meaning, but
reflects only acceptance of the current generation’s conclu­
sion that a politically acceptable burden, imposed on
particular citizens on the basis of race, is reasonable.” Id.,
at 610. Where, as here, the government has provided little
explanation for why it needs to discriminate based on race,
“ ‘there is simply no way of determining what classifica­
tions are “benign” . . . and what classifications are in fact
motivated by illegitimate notions of racial inferiority or
simple racial politics.’ ” Parents Involved, 551 U. S., at 783
(opinion of KENNEDY, J.) (quoting Croson, 488 U. S., at
493 (plurality opinion of O’Connor, J.)). By accepting the
classroom study as proof that UT satisfied strict scrutiny,
26        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                       ALITO, J., dissenting

the majority “move[s] us from ‘separate but equal’ to ‘un-
equal but benign.’ ” Metro Broadcasting, supra, at 638
(KENNEDY, J., dissenting).
   In addition to demonstrating that UT discriminates
against Asian-American students, the classroom study
also exhibits UT’s use of a few crude, overly simplistic
racial and ethnic categories. Under the UT plan, both the
favored and the disfavored groups are broad and consist of
students from enormously diverse backgrounds.                See
Supp. App. 30a; see also Fisher I, 570 U. S., at ___ (slip
op., at 4) (“five predefined racial categories”). Because
“[c]rude measures of this sort threaten to reduce [stu­
dents] to racial chits,” Parents Involved, 551 U. S., at 798
(opinion of KENNEDY, J.), UT’s reliance on such measures
further undermines any claim based on classroom diver-
sity statistics, see id., at 723 (majority opinion) (criticizing
school policies that viewed race in rough “white/nonwhite”
or “black/‘other’ ” terms); id., at 786 (opinion of KENNEDY,
J.) (faulting government for relying on “crude racial cat-
egories”); Metro Broadcasting, supra, at 633, n. 1
(KENNEDY, J., dissenting) (concluding that “ ‘the very
attempt to define with precision a beneficiary’s qualifying
racial characteristics is repugnant to our constitutional
ideals,’ ” and noting that if the government “ ‘is to make a
serious effort to define racial classes by criteria that can
be administered objectively, it must study precedents such
as the First Regulation to the Reichs Citizenship Law of
November 14, 1935’ ”).
   For example, students labeled “Asian American,” Supp.
App. 26a, seemingly include “individuals of Chinese, Jap­
anese, Korean, Vietnamese, Cambodian, Hmong, Indian
and other backgrounds comprising roughly 60% of the
world’s population,” Brief for Asian American Legal Foun­
dation et al. as Amici Curiae, O. T. 2012, No. 11–345,
                    Cite as: 579 U. S. ____ (2016)                 27

                         ALITO, J., dissenting

p. 28.6 It would be ludicrous to suggest that all of these
students have similar backgrounds and similar ideas and
experiences to share. So why has UT lumped them to­
gether and concluded that it is appropriate to discriminate
against Asian-American students because they are
“overrepresented” in the UT student body? UT has no
good answer. And UT makes no effort to ensure that it
has a critical mass of, say, “Filipino Americans” or “Cam­
bodian Americans.” Tr. of Oral Arg. 52 (Oct. 10, 2012). As
long as there are a sufficient number of “Asian Ameri­
cans,” UT is apparently satisfied.
   UT’s failure to provide any definition of the various
racial and ethnic groups is also revealing. UT does not
specify what it means to be “African-American,” “His-
panic,” “Asian American,” “Native American,” or “White.”
Supp. App. 30a. And UT evidently labels each student as
falling into only a single racial or ethnic group, see, e.g.,
id., at 10a–13a, 30a, 43a–44a, 71a, 156a–157a, 169a–170a,
without explaining how individuals with ancestors from
different groups are to be characterized. As racial and
ethnic prejudice recedes, more and more students will
have parents (or grandparents) who fall into more than
one of UT’s five groups. According to census figures,
individuals describing themselves as members of multiple
races grew by 32% from 2000 to 2010.7 A recent survey
reported that 26% of Hispanics and 28% of Asian-
Americans marry a spouse of a different race or ethnicity.8
——————
  6 And it is anybody’s guess whether this group also includes appli­

cants “of full or partial Arab, Armenian, Azerbaijani, Georgian, Kurd­
ish, Persian, or Turkish descent, or whether such applicants are to be
considered ‘White.’ ” Brief for Judicial Watch, Inc., et al. as Amici
Curiae 16.
  7 United States Census Bureau, 2010 Census Shows Multiple-Race

Population Grew Faster Than Single-Race Population (Sept. 27, 2012),
online at https://www.census.gov/newsroom/releases/archives/race/cb12­
182.html.
  8 W. Wang, Pew Research Center, Interracial Marriage: Who Is
28         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                         ALITO, J., dissenting

UT’s crude classification system is ill suited for the more
integrated country that we are rapidly becoming. UT
assumes that if an applicant describes himself or herself
as a member of a particular race or ethnicity, that appli­
cant will have a perspective that differs from that of appli­
cants who describe themselves as members of different
groups. But is this necessarily so? If an applicant has
one grandparent, great-grandparent, or great-great­
grandparent who was a member of a favored group, is that
enough to permit UT to infer that this student’s classroom
contribution will reflect a distinctive perspective or set of
experiences associated with that group? UT does not say.
It instead relies on applicants to “classify themselves.”
Fisher I, 570 U. S., at ___ (slip op., at 4). This is an invita­
tion for applicants to game the system.
   Finally, it seems clear that the lack of classroom diver-
sity is attributable in good part to factors other than the
representation of the favored groups in the UT student
population. UT offers an enormous number of classes in a
wide range of subjects, and it gives undergraduates a very
large measure of freedom to choose their classes. UT also
offers courses in subjects that are likely to have special
appeal to members of the minority groups given preferen­
tial treatment under its challenged plan, and this of
course diminishes the number of other courses in which
these students can enroll. See, e.g., Supp. App. 72a–73a
(indicating that the representation of African-Americans
and Hispanics in UT classrooms varies substantially from
major to major). Having designed an undergraduate
program that virtually ensures a lack of classroom diver­
sity, UT is poorly positioned to argue that this very result
——————
“Marrying Out”? (June 12, 2015), online at http://www.pewresearch.org/
fact-tank/2015/06/12/interracial-marriage-who-is-marrying-out/; W. Wang,
Pew Research Center, The Rise of Intermarriage (Feb. 16, 2012),
online at http://www.pewsocialtrends.org/2012/02/16/the-rise-of­
intermarriage/.
                 Cite as: 579 U. S. ____ (2016)           29

                     ALITO, J., dissenting

provides a justification for racial and ethnic discrimina­
tion, which the Constitution rarely allows.
                              3
   UT’s purported interest in intraracial diversity, or “di­
versity within diversity,” Brief for Respondents 34, also
falls short. At bottom, this argument relies on the unsup­
ported assumption that there is something deficient or at
least radically different about the African-American and
Hispanic students admitted through the Top Ten Percent
Plan.
   Throughout this litigation, UT has repeatedly shifted its
position on the need for intraracial diversity. Initially, in
the 2004 Proposal, UT did not rely on this alleged need at
all.    Rather, the Proposal “examined two metrics—
classroom diversity and demographic disparities—that it
concluded were relevant to its ability to provide [the]
benefits of diversity.” Brief for United States as Amicus
Curiae 27–28. Those metrics looked only to the numbers
of African-Americans and Hispanics, not to diversity
within each group.
   On appeal to the Fifth Circuit and in Fisher I, however,
UT began to emphasize its intraracial diversity argument.
UT complained that the Top Ten Percent Law hinders its
efforts to assemble a broadly diverse class because the
minorities admitted under that law are drawn largely
from certain areas of Texas where there are majority-
minority schools. These students, UT argued, tend to
come from poor, disadvantaged families, and the Univer-
sity would prefer a system that gives it substantial leeway
to seek broad diversity within groups of underrepresented
minorities. In particular, UT asserted a need for more
African-American and Hispanic students from privileged
backgrounds. See, e.g., Brief for Respondents in No. 11–
345, at 34 (explaining that UT needs race-conscious ad­
missions in order to admit “[t]he African-American or
30        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     ALITO, J., dissenting

Hispanic child of successful professionals in Dallas”); ibid.
(claiming that privileged minorities “have great potential
for serving as a ‘bridge’ in promoting cross-racial under­
standing, as well as in breaking down racial stereotypes”);
ibid. (intimating that the underprivileged minority stu­
dents admitted under the Top Ten Percent Plan “rein­
forc[e]” “stereotypical assumptions”); Tr. of Oral Arg. 43–
45 (Oct. 10, 2012) (“[A]lthough the percentage plan cer­
tainly helps with minority admissions, by and large, the—
the minorities who are admitted tend to come from seg-
regated, racially-identifiable schools,” and “we want
minorities from different backgrounds”). Thus, the Top
Ten Percent Law is faulted for admitting the wrong kind
of African-American and Hispanic students.
   The Fifth Circuit embraced this argument on remand,
endorsing UT’s claimed need to enroll minorities from
“high-performing,” “majority-white” high schools. 758
F. 3d, at 653. According to the Fifth Circuit, these more
privileged minorities “bring a perspective not captured by”
students admitted under the Top Ten Percent Law, who
often come “from highly segregated, underfunded, and
underperforming schools.” Ibid. For instance, the court
determined, privileged minorities “can enrich the diversity
of the student body in distinct ways” because such stu­
dents have “higher levels of preparation and better pro­
spects for admission to UT Austin’s more demanding
colleges” than underprivileged minorities. Id., at 654; see
also Fisher, 631 F. 3d, at 240, n. 149 (concluding that
the Top Ten Percent Plan “widens the ‘credentials gap’
between minority and non-minority students at the Uni­
versity, which risks driving away matriculating minor­
ity students from difficult majors like business or the
sciences”).
   Remarkably, UT now contends that petitioner has “fab­
ricat[ed]” the argument that it is seeking affluent minori­
ties. Brief for Respondents 2. That claim is impossible to
                    Cite as: 579 U. S. ____ (2016)                  31

                         ALITO, J., dissenting

square with UT’s prior statements to this Court in the
briefing and oral argument in Fisher I.9 Moreover, al­
though UT reframes its argument, it continues to assert
that it needs affirmative action to admit privileged minori­
ties. For instance, UT’s brief highlights its interest in
admitting “[t]he black student with high grades from
Andover.” Brief for Respondents 33. Similarly, at oral
argument, UT claimed that its “interests in the educa-
tional benefits of diversity would not be met if all of [the]
minority students were . . . coming from depressed socio­
economic backgrounds.” Tr. of Oral Arg. 53 (Dec. 9, 2015);
see also id., at 43, 45.
   Ultimately, UT’s intraracial diversity rationale relies on
the baseless assumption that there is something wrong
with African-American and Hispanic students admitted
through the Top Ten Percent Plan, because they are “from
the lower-performing, racially identifiable schools.” Id., at
43; see id., at 42–43 (explaining that “the basis” for UT’s

——————
   9 Amici supporting UT certainly understood it to be arguing that it

needs affirmative action to admit privileged minorities. See Brief for
Six Educational Nonprofit Organizations 38 (citing Brief for Respond­
ents in No. 11–345, p. 34). And UT’s amici continue to press the full-
throated version of the argument. See Brief for Six Educational Non­
profit Organizations 12–13 (“Intraracial diversity . . . explodes
perceived associations between racial groups and particular demographic
characteristics, such as the ‘common stereotype of Black and Latina/o
students[ ] that all students from these groups come from poor, inner-
city backgrounds.’ Schools like UT combat such stereotypes by seeking
to admit African-American and Latino students from elevated socioeco­
nomic and/or non-urban backgrounds” (citation omitted)); id., at 15
(arguing that UT needs racial preferences to admit minority students
from “elevated” “socioeconomic backgrounds,” because “such students
are on a more equal social footing with the average nonminority stu­
dent”); id., at 37–38 (“African-American and Latino students who may
come from higher socioeconomic status . . . may serve as ‘debiasing
agent[s],’ promoting disequilibrium to disrupt stereotypical associa­
tions. These students are also likely to be better able to promote
communication and integration on campus” (citation omitted)).
32       FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     ALITO, J., dissenting

conclusion that it was “not getting a variety of perspec­
tives among African-Americans or Hispanics” was the fact
that the Top Ten Percent Plan admits underprivileged
minorities from highly segregated schools). In effect, UT
asks the Court “to assume”—without any evidence—“that
minorities admitted under the Top Ten Percent Law . . .
are somehow more homogenous, less dynamic, and more
undesirably stereotypical than those admitted under
holistic review.” 758 F. 3d, at 669–670 (Garza, J., dissent­
ing). And UT’s assumptions appear to be based on the
pernicious stereotype that the African-Americans and
Hispanics admitted through the Top Ten Percent Plan
only got in because they did not have to compete against
very many whites and Asian-Americans. See Tr. of Oral
Arg. 42–43 (Dec. 9, 2015). These are “the very stereotypi­
cal assumptions [that] the Equal Protection Clause for­
bids.” Miller, 515 U. S., at 914. UT cannot satisfy its
burden by attempting to “substitute racial stereotype for
evidence, and racial prejudice for reason.” Calhoun v.
United States, 568 U. S. ___, ___ (2013) (slip op., at 4)
(SOTOMAYOR, J., respecting denial of certiorari).
   In addition to relying on stereotypes, UT’s argument
that it needs racial preferences to admit privileged minori­
ties turns the concept of affirmative action on its head.
When affirmative action programs were first adopted, it
was for the purpose of helping the disadvantaged. See,
e.g., Bakke, 438 U. S., at 272–275 (opinion of Powell, J.)
(explaining that the school’s affirmative action program
was designed “to increase the representation” of “ ‘econom­
ically and/or educationally disadvantaged’ applicants”).
Now we are told that a program that tends to admit poor
and disadvantaged minority students is inadequate be­
cause it does not work to the advantage of those who are
more fortunate. This is affirmative action gone wild.
   It is also far from clear that UT’s assumptions
about the socioeconomic status of minorities admitted
                 Cite as: 579 U. S. ____ (2016)         33

                     ALITO, J., dissenting

through the Top Ten Percent Plan are even remotely
accurate. Take, for example, parental education. In 2008,
when petitioner applied to UT, approximately 79%
of Texans aged 25 years or older had a high school
diploma, 17% had a bachelor’s degree, and 8% had a
graduate or professional degree. Dept. of Educ., Nat.
Center for Educ. Statistics, T. Snyder & S. Dillow,
Digest of Education Statistics 2010, p. 29 (2011). In
contrast, 96% of African-Americans admitted through the
Top Ten Percent Plan had a parent with a high
school diploma, 59% had a parent with a bachelor’s degree,
and 26% had a parent with a graduate or professional
degree. See UT, Office of Admissions, Student Profile,
Admitted Freshman Class of 2008, p. 8 (rev. Aug. 1,
2012) (2008 Student Profile), online at https://
uteas.app.box.com/s/twqozsbm2vb9lhm14o0v0czvqs1ygzqr/
1/7732448553/23476747441/1. Similarly, 83% of Hispan­
ics admitted through the Top Ten Percent Plan had a
parent with a high school diploma, 42% had a parent with
a bachelor’s degree, and 21% had a parent with a graduate
or professional degree. Ibid. As these statistics make
plain, the minorities that UT characterizes as “coming
from depressed socioeconomic backgrounds,” Tr. of Oral
Arg. 53 (Dec. 9, 2015), generally come from households
with education levels exceeding the norm in Texas.
   Or consider income levels.      In 2008, the median
annual household income in Texas was $49,453. United
States Census Bureau, A. Noss, Household Income for
States: 2008 and 2009, p. 4 (2010), online at
https://www.census.gov/prod/2010pubs/acsbr09-2.pdf. The
household income levels for Top Ten Percent African-
American and Hispanic admittees were on par: Roughly
half of such admittees came from households below the
Texas median, and half came from households above the
median. See 2008 Student Profile 6. And a large portion
of these admittees are from households with income levels
34       FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     ALITO, J., dissenting

far exceeding the Texas median. Specifically, 25% of
African-Americans and 27% of Hispanics admitted
through the Top Ten Percent Plan in 2008 were raised in
households with incomes exceeding $80,000. Ibid. In
light of this evidence, UT’s actual argument is not that it
needs affirmative action to ensure that its minority admit-
tees are representative of the State of Texas. Rather, UT
is asserting that it needs affirmative action to ensure that
its minority students disproportionally come from families
that are wealthier and better educated than the average
Texas family.
   In addition to using socioeconomic status to falsely
denigrate the minority students admitted through the Top
Ten Percent Plan, UT also argues that such students are
academically inferior. See, e.g., Brief for Respondents in
No. 11–345, at 33 (“[T]he top 10% law systematically
hinders UT’s efforts to assemble a class that is . . . aca­
demically excellent”). “On average,” UT claims, “African-
American and Hispanic holistic admits have higher SAT
scores than their Top 10% counterparts.” Brief for Re­
spondents 43, n. 8. As a result, UT argues that it needs
race-conscious admissions to enroll academically superior
minority students with higher SAT scores. Regrettably,
the majority seems to embrace this argument as well. See
ante, at 16 (“[T]he Equal Protection Clause does not force
universities to choose between a diverse student body and
a reputation for academic excellence”).
   This argument fails for a number of reasons. First, it is
simply not true that Top Ten Percent minority admittees
are academically inferior to holistic admittees. In fact, as
UT’s president explained in 2000, “top 10 percent high
school students make much higher grades in college than
non-top 10 percent students,” and “[s]trong academic
performance in high school is an even better predictor of
success in college than standardized test scores.” App.
393a–394a; see also Lavergne Deposition 41–42 (agreeing
                     Cite as: 579 U. S. ____ (2016)                  35

                         ALITO, J., dissenting

that “it’s generally true that students admitted pursuant
to HB 588 [the Top Ten Percent Law] have a higher level
of academic performance at the University than students
admitted outside of HB 588”). Indeed, the statistics in the
record reveal that, for each year between 2003 and 2007,
African-American in-state freshmen who were admitted
under the Top Ten Percent Law earned a higher mean
grade point average than those admitted outside of the
Top Ten Percent Law. Supp. App. 164a. The same is true
for Hispanic students. Id., at 165a. These conclusions
correspond to the results of nationwide studies showing
that high school grades are a better predictor of success in
college than SAT scores.10
  It is also more than a little ironic that UT uses the SAT,
which has often been accused of reflecting racial and
cultural bias,11 as a reason for dissatisfaction with poor
——————
  10 See, e.g., Strauss, Study: High School Grades Best Predictor

of College Success—Not SAT/ACT Scores, Washington Post, Feb.
21, 2014, online at https://www.washingtonpost.com/news/answer­
sheet/wp/2014/02/21/a-telling-study-about-act-sat-scores/.
  11 See, e.g., Freedle, Correcting the SAT’s Ethnic and Social-Class

Bias: A Method for Reestimating SAT Scores, 73 Harv. Ed. Rev. 1
(2003) (“The SAT has been shown to be both culturally and statistically
biased against African Americans, Hispanic Americans, and Asian
Americans”); Santelices & Wilson, Unfair Treatment? The Case of
Freedle, the SAT, and the Standardization Approach to Differential
Item Functioning, 80 Harv. Ed. Rev. 106, 127 (2010) (questioning the
validity of African-American SAT scores and, consequently, admissions
decisions based on those scores); Brief for Amherst University et al. as
Amici Curiae 15–16 (“[E]xperience has taught amici that SAT and ACT
scores for African-American students do not accurately predict
achievement later in college and beyond”); Brief for Experimental
Psychologists as Amici Curiae 7 (“A substantial body of research by
social scientists has revealed that standardized test scores and grades
often underestimate the true academic capacity of members of certain
minority groups”); Brief for Six Educational Nonprofit Organizations as
Amici Curiae 21 (“Underrepresentation of African-American and Latino
students by conventional academic metrics was also a reflection of the
racial bias in standardized testing”).
36          FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                          ALITO, J., dissenting

and disadvantaged African-American and Hispanic stu­
dents who excel both in high school and in college. Even if
the SAT does not reflect such bias (and I am ill equipped
to express a view on that subject), SAT scores clearly
correlate with wealth.12
  UT certainly has a compelling interest in admitting
students who will achieve academic success, but it does
not follow that it has a compelling interest in maximizing
admittees’ SAT scores. Approximately 850 4-year-degree
institutions do not require the SAT or ACT as part of the
admissions process. See J. Soares, SAT Wars: The Case
for Test-Optional College Admissions 2 (2012). This in­
cludes many excellent schools.13
——————
  12 Zumbrun, SAT Scores and Income Inequality: How Wealthier

Kids Rank Higher, Wall Street Journal, Oct. 7, 2014, online
at http://blogs.wsj.com/economics/2014/10/07/sat-scores-and-income­
inequality-how-wealthier-kids-rank-higher/.
  13 See e.g., Brief for California Institute of Technology et al. as Amici

Curiae 15 (“[I]n amicus George Washington University’s experience,
standardized test scores are considered so limited in what they can
reveal about an applicant that the University recently has done away
with the requirement altogether”); see also American University,
Applying Test Optional, online at http://www.american.edu/admissions/
testoptional.cfm; The University of Arizona, Office of Admissions,
Frequently Asked Questions, online at https://admissions.arizona.edu/
freshmen/frequently-asked-questions; Bowdoin College, Test Optional
Policy, online at http://www.bowdoin.edu/admissions/apply/testing­
policy.shtml; Brandeis University, Test-Optional Policy, online at
http://www.brandeis.edu/admissions/apply/testing.html; Bryn Mawr
College, Standardized Testing Policy, online at http://www.brynmawr.edu/
admissions/standardized-testing-policy; College of the Holy Cross,
What We Look For, online at http://www.holycross.edu/admissions­
aid/what-we-look-for; George Washington University, Test-Optional
Policy, online at https://undergraduate.admissions.gwu.edu/test­
optional-policy; New York University, Standardized Tests, online at
http://www.nyu.edu/admissions/undergraduate-admissions/how-to-apply/
all-freshmen-applicants/instructions/standardized-tests.html;         Smith
College, For First-Year Students, online at http://www.smith.edu/
admission/firstyear_apply.php; Temple University, Temple Option
FAQ, online at http://admissions.temple.edu/node/441; Wake Forest
                     Cite as: 579 U. S. ____ (2016)                   37

                          ALITO, J., dissenting

   To the extent that intraracial diversity refers to some­
thing other than admitting privileged minorities and
minorities with higher SAT scores, UT has failed to define
that interest with any clarity. UT “has not provided any
concrete targets for admitting more minority students
possessing [the] unique qualitative-diversity characteris­
tics” it desires. 758 F. 3d, at 669 (Garza, J., dissenting).
Nor has UT specified which characteristics, viewpoints,
and life experiences are supposedly lacking in the African-
Americans and Hispanics admitted through the Top Ten
Percent Plan. In fact, because UT administrators make no
collective, qualitative assessment of the minorities admit­
ted automatically, they have no way of knowing which
attributes are missing. See ante, at 9 (admitting that
there is no way of knowing “how students admitted solely
based on their class rank differ in their contribution to
diversity from students admitted through holistic review”);
758 F. 3d, at 669 (Garza, J., dissenting) (“The University
——————
University, Test Optional, online at http://admissions.wfu.edu/
apply/test-optional/.
  In 2008, Wake Forest dropped standardized testing requirements
based at least in part on “the perception that these tests are unfair to
blacks and other minorities and do not offer an effective tool to deter­
mine if these minority students will succeed in college.” Wake Forest
Presents the Most Serious Threat So Far to the Future of the SAT, The
Journal of Blacks in Higher Education, No. 60 (Summer 2008), p. 9; see
also ibid. (“University admissions officials say that one reason for
dropping the SAT is to encourage more black and minority applicants”).
“The year after the new policy was announced, Wake Forest’s minority
applications went up by 70%, and the first test-optional class” exhibited
“a big leap forward” in minority enrollment. J. Soares, SAT Wars: The
Case for Test-Optional College Admissions 3 (2012). From 2008 to
2015, “[e]thnic diversity in the undergraduate population increased by
54 percent.” Wake Forest University, Test Optional, online at
http://admissions.wfu.edu/apply/test-optional/.     And Wake Forest
reports that dropping standardized testing requirements has “not
compromise[d] the academic quality of [the] institution,” and that it
has made the university “more diverse and intellectually stimulat­
ing.” Ibid.
38        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                      ALITO, J., dissenting

does not assess whether Top Ten Percent Law admittees
exhibit sufficient diversity within diversity, whether the
requisite ‘change agents’ are among them, and whether
these admittees are able, collectively or individually, to
combat pernicious stereotypes”). Furthermore, UT has not
identified “when, if ever, its goal (which remains unde­
fined) for qualitative diversity will be reached.” Id., at
671. UT’s intraracial diversity rationale is thus too impre­
cise to permit strict scrutiny analysis.
   Finally, UT’s shifting positions on intraracial diversity,
and the fact that intraracial diversity was not emphasized
in the Proposal, suggest that it was not “the actual pur­
pose underlying the discriminatory classification.” Missis­
sippi Univ. for Women v. Hogan, 458 U. S. 718, 730 (1982).
Instead, it appears to be a post hoc rationalization.
                                4
   UT also alleges—and the majority embraces—an inter­
est in avoiding “feelings of loneliness and isolation” among
minority students. Ante, at 14–15; see Brief for Respond­
ents 7–8, 38–39. In support of this argument, they cite
only demographic data and anecdotal statements by UT
officials that some students (we are not told how many)
feel “isolated.” This vague interest cannot possibly satisfy
strict scrutiny.
   If UT is seeking demographic parity to avoid isolation,
that is impermissible racial balancing. See Part II–C–1,
supra. And linking racial loneliness and isolation to state
demographics is illogical. Imagine, for example, that an
African-American student attends a university that is 20%
African-American. If racial isolation depends on a com­
parison to state demographics, then that student is more
likely to feel isolated if the school is located in Mississippi
(which is 37.0% African-American) than if it is located in
Montana (which is 0.4% African-American). See United
States Census Bureau, QuickFacts, online at https://
                   Cite as: 579 U. S. ____ (2016)              39

                       ALITO, J., dissenting

www.census.gov/quickfacts/table/PST045215/28,30.            In
reality, however, the student may feel—if anything—less
isolated in Mississippi, where African-Americans are more
prevalent in the population at large.
  If, on the other hand, state demographics are not driv­
ing UT’s interest in avoiding racial isolation, then its
treatment of Asian-American students is hard to under­
stand. As the District Court noted, “the gross number of
Hispanic students attending UT exceeds the gross number
of Asian-American students.” 645 F. Supp. 2d, at 606. In
2008, for example, UT enrolled 1,338 Hispanic freshmen
and 1,249 Asian-American freshmen. Supp. App. 156a.
UT never explains why the Hispanic students—but not
the Asian-American students—are isolated and lonely
enough to receive an admissions boost, notwithstanding
the fact that there are more Hispanics than Asian-
Americans in the student population. The anecdotal
statements from UT officials certainly do not indicate that
Hispanics are somehow lonelier than Asian-Americans.
  Ultimately, UT has failed to articulate its interest in
preventing racial isolation with any clarity, and it has
provided no clear indication of how it will know when such
isolation no longer exists. Like UT’s purported interests
in demographic parity, classroom diversity, and intrara­
cial diversity, its interest in avoiding racial isolation can­
not justify the use of racial preferences.
                                 D
   Even assuming UT is correct that, under Grutter, it
need only cite a generic interest in the educational bene­
fits of diversity, its plan still fails strict scrutiny because it
is not narrowly tailored. Narrow tailoring requires “a
careful judicial inquiry into whether a university could
achieve sufficient diversity without using racial classifica­
tions.” Fisher I, 570 U. S., at ___ (slip op., at 10). “If a
‘ “nonracial approach . . . could promote the substantial
40          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 ap­
proaches to further its goals, such as intensifying its out­
reach 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 characteris­
tics and personal circumstances. See ibid.14 Under a
system that combines the Top Ten Percent Plan with race-
blind, holistic review, UT could still admit “the star ath­
lete 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
——————
   14 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 attempt­
ing to achieve its compelling interest using race-neutral holistic re­
view”). 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 obliga­
tion to satisfy the burden of strict scrutiny in light of changing circum­
stances,” ante, at 10, its rejection of race-blind, holistic review relies
exclusively on “evidence” predating petitioner’s suit by five years.
                     Cite as: 579 U. S. ____ (2016)                  41

                         ALITO, J., dissenting

17. All of these unique circumstances can be considered
without injecting race into the process. Because UT has
failed to provide any evidence whatsoever that race-
conscious holistic review will achieve its diversity objec­
tives more effectively than race-blind holistic review, it
cannot satisfy the heavy burden imposed by the strict
scrutiny standard.
   The fact that UT’s racial preferences are unnecessary to
achieve its stated goals is further demonstrated by their
minimal effect on UT’s diversity. In 2004, when race was
not a factor, 3.6% of non-Top Ten Percent Texas enrollees
were African-American and 11.6% were Hispanic. See
Supp. App. 157a. It would stand to reason that at least
the same percentages of African-American and Hispanic
students would have been admitted through holistic re­
view in 2008 even if race were not a factor. If that as­
sumption is correct, then race was determinative for only
15 African-American students and 18 Hispanic students in
2008 (representing 0.2% and 0.3%, respectively, of the
total enrolled first-time freshmen from Texas high
schools). See ibid.15
   The majority contends that “[t]he fact that race con­
sciousness played a role in only a small portion of admis­
sions decisions should be a hallmark of narrow tailoring,
——————
  15 In 2008, 1,208 first-time freshmen from Texas high schools enrolled

at UT after being admitted outside the Top Ten Percent Plan. Supp.
App. 157a. Based on the 2004 statistics, it is reasonable to assume
that, if the University had undertaken a race-neutral holistic review in
2008, 3.6% (43) of these students would have been African-American
and 11.6% (140) would have been Hispanic. See ibid. Under the
University’s race-conscious holistic review, 58 African-American fresh­
men from Texas and 158 Hispanic freshmen from Texas were enrolled
in 2008, thus reflecting an increase of only 15 African-American stu­
dents and 18 Hispanic students. And if those marginal increases (of 15
and 18 students) are divided by the number of total enrolled first-time
freshmen from Texas high schools (6,322), see ibid., the calculation
yields the 0.2% and 0.3% percentages mentioned in the text above.
42        FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                      ALITO, J., dissenting

not evidence of unconstitutionality.” Ante, at 15. This
argument directly contradicts this Court’s precedent.
Because racial classifications are “ ‘a highly suspect tool,’ ”
Grutter, 539 U. S, at 326, they should be employed only
“as a last resort,” Croson, 488 U. S., at 519 (opinion of
KENNEDY, J.); see also Grutter, supra, at 342 (“[R]acial
classifications, however compelling their goals, are poten­
tially so dangerous that they may be employed no more
broadly than the interest demands”). Where, as here,
racial preferences have only a slight impact on minority
enrollment, a race-neutral alternative likely could have
reached the same result. See Parents Involved, 551 U. S.,
at 733–734 (holding that the “minimal effect” of school
districts’ racial classifications “casts doubt on the necessity
of using [such] classifications” and “suggests that other
means [of achieving their objectives] would be effective”).
As JUSTICE KENNEDY once aptly put it, “the small number
of [students] affected suggests that the schoo[l] could have
achieved [its] stated ends through different means.” Id.,
at 790 (opinion concurring in part and concurring in
judgment). And in this case, a race-neutral alternative
could accomplish UT’s objectives without gratuitously
branding the covers of tens of thousands of applications
with a bare racial stamp and “tell[ing] each student he or
she is to be defined by race.” Id., at 789.
                               III
  The majority purports to agree with much of the above
analysis. The Court acknowledges that “ ‘because racial
characteristics so seldom provide a relevant basis for
disparate treatment,’ ” “ ‘[r]ace may not be considered [by a
university] unless the admissions process can withstand
strict scrutiny.’ ” Ante, at 6–7. The Court admits that the
burden of proof is on UT, ante, at 7, and that “a university
bears a heavy burden in showing that it had not obtained
the educational benefits of diversity before it turned to a
                 Cite as: 579 U. S. ____ (2016)           43

                     ALITO, J., dissenting

race-conscious plan,” ante, at 13–14. And the Court recog­
nizes that the record here is “almost devoid of information
about the students who secured admission to the Univer­
sity through the Plan,” and that “[t]he Court thus cannot
know how students admitted solely based on their class
rank differ in their contribution to diversity from students
admitted through holistic review.” Ante, at 9. This should
be the end of the case: Without identifying what was
missing from the African-American and Hispanic students
it was already admitting through its race-neutral process,
and without showing how the use of race-based admis­
sions could rectify the deficiency, UT cannot demonstrate
that its procedure is narrowly tailored.
   Yet, somehow, the majority concludes that petitioner
must lose as a result of UT’s failure to provide evidence
justifying its decision to employ racial discrimination.
Tellingly, the Court frames its analysis as if petitioner
bears the burden of proof here. See ante, at 11–19. But it
is not the petitioner’s burden to show that the considera­
tion of race is unconstitutional. To the extent the record is
inadequate, the responsibility lies with UT. For “[w]hen a
court subjects governmental action to strict scrutiny, it
cannot construe ambiguities in favor of the State,” Parents
Involved, supra, at 786 (opinion of KENNEDY, J.), particu­
larly where, as here, the summary judgment posture
obligates the Court to view the facts in the light most
favorable to petitioner, see Matsushita Elec. Industrial Co.
v. Zenith Radio Corp., 475 U. S. 574, 587 (1986).
   Given that the University bears the burden of proof, it is
not surprising that UT never made the argument that it
should win based on the lack of evidence. UT instead
asserts that “if the Court believes there are any deficien­
cies in [the] record that cast doubt on the constitutionality
of UT’s policy, the answer is to order a trial, not to grant
summary judgment.” Brief for Respondents 51; see also
id., at 52–53 (“[I]f this Court has any doubts about how
44         FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                          ALITO, J., dissenting

the Top 10% Law works, or how UT’s holistic plan offsets
the tradeoffs of the Top 10% Law, the answer is to remand
for a trial”). Nevertheless, the majority cites three reasons
for breaking from the normal strict scrutiny standard.
None of these is convincing.
                              A
   First, the Court states that, while “th[e] evidentiary gap
perhaps could be filled by a remand to the district court
for further factfinding” in “an ordinary case,” that will not
work here because “[w]hen petitioner’s application was
rejected, . . . the University’s combined percentage-plan/
holistic-review approach to admission had been in effect
for just three years,” so “further factfinding” “might yield
little insight.” Ante, at 9. This reasoning is dangerously
incorrect. The Equal Protection Clause does not provide a
3-year grace period for racial discrimination. Under strict
scrutiny, UT was required to identify evidence that race-
based admissions were necessary to achieve a compelling
interest before it put them in place—not three or more
years after. See ante, at 13–14 (“Petitioner is correct that
a university bears a heavy burden in showing that it had
not obtained the educational benefits of diversity before it
turned to a race-conscious plan” (emphasis added)); Fisher
I, 570 U. S., at ___ (slip op., at 11) (“[S]trict scrutiny im­
poses on the university the ultimate burden of demon­
strating, before turning to racial classifications, that avail­
able, workable race-neutral alternatives do not suffice”
(emphasis added)). UT’s failure to obtain actual evidence
that racial preferences were necessary before resolving to
use them only confirms that its decision to inject race into
admissions was a reflexive response to Grutter,16 and that
UT did not seriously consider whether race-neutral means

——————
  16 Recall that UT’s president vowed to reinstate race-conscious admis­

sions within hours of Grutter’s release. See Part I, supra.
                      Cite as: 579 U. S. ____ (2016)                    45

                          ALITO, J., dissenting

would serve its goals as well as a race-based process.
                               B
   Second, in an effort to excuse UT’s lack of evidence, the
Court argues that because “the University lacks any au­
thority to alter the role of the Top Ten Percent Plan,” “it
similarly had no reason to keep extensive data on the Plan
or the students admitted under it—particularly in the
years before Fisher I clarified the stringency of the strict-
scrutiny burden for a school that employs race-conscious
review.” Ante, at 9–10. But UT has long been aware that
it bears the burden of justifying its racial discrimination
under strict scrutiny. See, e.g., Brief for Respondents in
No. 11–345, at 22 (“It is undisputed that UT’s considera­
tion of race in its holistic admissions process triggers strict
scrutiny,” and “that inquiry is undeniably rigorous”).17 In
light of this burden, UT had every reason to keep data on
the students admitted through the Top Ten Percent Plan.
Without such data, how could UT have possibly identified
any characteristics that were lacking in Top Ten Percent
admittees and that could be obtained via race-conscious
admissions? How could UT determine that employing a
race-based process would serve its goals better than, for
instance, expanding the Top Ten Percent Plan? UT could

——————
   17 See also, e.g., Parents Involved in Community Schools v. Seattle

School Dist. No. 1, 551 U. S. 701, 720 (2007) (“It is well established that
when the government distributes burdens or benefits on the basis of
individual racial classifications, that action is reviewed under strict
scrutiny”); Grutter v. Bollinger, 539 U. S. 306, 326 (2003) (“We have
held that all racial classifications imposed by government ‘must be
analyzed by a reviewing court under strict scrutiny’ ”); Gratz v. Bol­
linger, 539 U. S. 244, 270 (2003) (“It is by now well established that ‘all
racial classifications reviewable under the Equal Protection Clause
must be strictly scrutinized’ ”); Adarand Constructors, Inc. v. Peña, 515
U. S. 200, 227 (1995) (“[W]e hold today that all racial classifications,
imposed by whatever federal, state, or local government actor, must be
analyzed by a reviewing court under strict scrutiny”).
46       FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                     ALITO, J., dissenting

not possibly make such determinations without studying
the students admitted under the Top Ten Percent Plan.
Its failure to do so demonstrates that UT unthinkingly
employed a race-based process without examining whether
the use of race was actually necessary. This is not—as the
Court claims—a “good-faith effor[t] to comply with the
law.” Ante, at 10.
   The majority’s willingness to cite UT’s “good faith” as
the basis for excusing its failure to adduce evidence is
particularly inappropriate in light of UT’s well-
documented absence of good faith. Since UT described its
admissions policy to this Court in Fisher I, it has been
revealed that this description was incomplete. As ex­
plained in an independent investigation into UT admis­
sions, UT maintained a clandestine admissions system
that evaded public scrutiny until a former admissions
officer blew the whistle in 2014. See Kroll, Inc., Univer-
sity of Texas at Austin—Investigation of Admissions Prac-
tices and Allegations of Undue Influence 4 (Feb. 6, 2015)
(Kroll Report). Under this longstanding, secret process,
university officials regularly overrode normal holistic
review to allow politically connected individuals—such as
donors, alumni, legislators, members of the Board of Re­
gents, and UT officials and faculty—to get family members
and other friends admitted to UT, despite having grades
and standardized test scores substantially below the
median for admitted students. Id., at 12–14; see also
Blanchard & Hoppe, Influential Texans Helped Under-
qualified Students Get Into UT, Dallas Morning News,
July 20, 2015, online at http://www.dallasnews.com/news/
education /headlines/ 20150720 - influential -texans-helped­
underqualified-students-get-into-ut.ece (“Dozens of highly
influential Texans—including lawmakers, millionaire
donors and university regents—helped underqualified
students get into the University of Texas, often by writing
to UT officials, records show”).
                     Cite as: 579 U. S. ____ (2016)                    47

                          ALITO, J., dissenting

   UT officials involved in this covert process intentionally
kept few records and destroyed those that did exist. See,
e.g., Kroll Report 43 (“Efforts were made to minimize
paper trails and written lists during this end-of-cycle
process. At one meeting, the administrative assistants
tried not keeping any notes, but this proved difficult, so
they took notes and later shredded them. One administra­
tive assistant usually brought to these meetings a stack of
index cards that were subsequently destroyed”); see also
id., at 13 (finding that “written records or notes” of the
secret admissions meetings “are not maintained and are
typically shredded”). And in the course of this litigation,
UT has been less than forthright concerning its treatment
of well-connected applicants. Compare, e.g., Tr. of Oral
Arg. 51 (Dec. 9, 2015) (“University of Texas does not do
legacy, Your Honor”), and App. 281a (“[O]ur legacy policy
is such that we don’t consider legacy”), with Kroll Report
29 (discussing evidence that “alumni/legacy influence”
“results each year in certain applicants receiving a com­
petitive boost or special consideration in the admissions
process,” and noting that this is “an aspect of the admis­
sions process that does not appear in the public represen­
tations of UT-Austin’s admissions process”). Despite UT’s
apparent readiness to mislead the public and the Court,
the majority is “willing to be satisfied by [UT’s] profession
of its own good faith.”        Grutter, 539 U. S., at 394
(KENNEDY, J., dissenting).18
——————
  18 The majority’s claim that UT has not “had a full opportunity to

respond to” the Kroll Report, ante, at 14, is simply wrong. The report
was discussed in no less than six of the briefs filed in this case. See
Brief in Opposition 19–20, n. 2; Reply to Brief in Opposition 6; Brief for
Respondents 51, n. 9; Brief for Cato Institute as Amicus Curiae 8–12
(certiorari stage); Brief for Cato Institute as Amicus Curiae 12, and n. 4
(merits stage); Brief for Judicial Education Project as Amicus Curiae 5–
17. Not only did UT have an “opportunity to respond” to the Kroll
Report—it did in fact respond at both the certiorari stage and the
merits stage. See Brief in Opposition 19–20, n. 2 (explicitly discussing
48          FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                          ALITO, J., dissenting

   Notwithstanding the majority’s claims to the contrary,
UT should have access to plenty of information about
“how students admitted solely based on their class rank
differ in their contribution to diversity from students
admitted through holistic review.” Ante, at 9. UT un­
doubtedly knows which students were admitted through
the Top Ten Percent Plan and which were admitted
through holistic review. See, e.g., Supp. App. 157a. And it
undoubtedly has a record of all of the classes in which
these students enrolled. See, e.g., UT, Office of the Reg­
istrar,    Transcript—Official,      online    at     https://
registrar.utexas.edu/students/transcripts-official (instruct­
ing graduates on how to obtain a transcript listing a “com­
prehensive record” of classes taken). UT could use this
information to demonstrate whether the Top Ten Percent
minority admittees were more or less likely than the
holistic minority admittees to choose to enroll in the
courses lacking diversity.
   In addition, UT assigns PAI scores to all students—
including those admitted through the Top Ten Percent
Plan—for purposes of admission to individual majors.
Accordingly, all students must submit a full application
containing essays, letters of recommendation, a resume, a
——————
the “recently released Kroll Report”); Brief for Respondents 51, n. 9
(similar). And the Court’s purported concern about reliance on “ex­
trarecord materials,” ante, at 14, rings especially hollow in light of its
willingness to affirm the decision below, which relied heavily on the
Fifth Circuit’s own extrarecord Internet research, see, e.g., 758 F. 3d, at
650–653.
   The majority is also wrong in claiming that the Kroll Report is “tan­
gential to this case at best.” Ante, at 14. Given the majority’s blind
deference to the good faith of UT officials, evidence that those officials
“failed to speak with the candor and forthrightness expected of people
in their respective positions of trust and leadership,” Kroll, Inc., Uni­
versity of Texas at Austin—Investigation of Admissions Practices and
Allegations of Undue Influence 29 (Feb. 6, 2015), when discussing UT’s
admissions process is highly relevant.
                      Cite as: 579 U. S. ____ (2016)                      49

                           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,19 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,20 that does not excuse UT from meeting that
——————
   19 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 Reten­
tion 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”).
   20 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,
50          FISHER v. UNIVERSITY OF TEX. AT AUSTIN

                          ALITO, J., dissenting

heavy burden. In Adarand, for instance, another case in
which the Court clarified the rigor of the strict scrutiny
standard, the Court acknowledged that its decision “al­
ter[ed] the playing field in some important respects.” 515
U. S., at 237. As a result, it “remand[ed] the case to the
lower courts for further consideration in light of the prin­
ciples [it had] announced.” Ibid. (emphasis added). In
other words, the Court made clear that—notwithstanding
the shift in the law—the government had to meet the
clarified burden it was announcing. The Court did not
embrace the notion that its decision to alter the stringency
of the strict scrutiny standard somehow allowed the gov­
ernment to automatically prevail.
                               C
  Third, the majority notes that this litigation has per­
sisted for many years, that petitioner has already gradu­
ated from another college, that UT’s policy may have
changed over time, and that this case may offer little
prospective guidance. At most, these considerations coun­
sel in favor of dismissing this case as improvidently granted.
But see, e.g., Gratz, 539 U. S., at 251, and n. 1, 260–
262 (rejecting the dissent’s argument that, because the
case had already persisted long enough for the petitioners
to graduate from other schools, the case should be dis­
missed); id., at 282 (Stevens, J., dissenting). None of these
considerations has any bearing whatsoever on the merits
of this suit. The majority cannot side with UT simply
because it is tired of this case.
                               IV
     It is important to understand what is and what is not at
—————— 

the Supreme Court faulted the district court’s and this Court’s review 

of UT Austin’s means to achieve the permissible goal of diversity”); id.,

at 665, n. 5 (Garza, J., dissenting) (“I agree with the majority that

Fisher represents a decisive shift in the law”). 

                 Cite as: 579 U. S. ____ (2016)          51

                     ALITO, J., dissenting

stake in this case. What is not at stake is whether UT or
any other university may adopt an admissions plan that
results in a student body with a broad representation of
students from all racial and ethnic groups. UT previously
had a race-neutral plan that it claimed had “effectively
compensated for the loss of affirmative action,” App. 396a,
and UT could have taken other steps that would have
increased the diversity of its admitted students without
taking race or ethnic background into account.
  What is at stake is whether university administrators
may justify systematic racial discrimination simply by
asserting that such discrimination is necessary to achieve
“the educational benefits of diversity,” without explain­
ing—much less proving—why the discrimination is needed
or how the discriminatory plan is well crafted to serve its
objectives. Even though UT has never provided any co­
herent explanation for its asserted need to discriminate on
the basis of race, and even though UT’s position relies on a
series of unsupported and noxious racial assumptions, the
majority concludes that UT has met its heavy burden.
This conclusion is remarkable—and remarkably wrong.
  Because UT has failed to satisfy strict scrutiny, I re­
spectfully dissent.
