(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 admissions process in 2004, after a year-long-study of its admissions process—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 educational 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 other Caucasian applicants, in violation of the Equal Protection Clause.

The District Court entered summary judgment in the University’s favor, and the Fifth Circuit affirmed. This Court vacated the judgment, 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 standard. On remand, the Fifth Circuit again affirmed the entry of summary judgment for the University. 

Held: The race-conscious admissions program in use at the time of petitioner’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 assessing the constitutionality of a public university’s affirmative action 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 accomplish 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 alternatives” do not suffice. Id., at ___. Pp. 6–8.

(b) The University’s approach to admissions gives rise to an unusual consequence here. The component with the largest impact on petitioner’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 effect only three years and, in any event, the University lacked authority to alter the percentage plan, which was mandated by the Texas 

Legislature. These circumstances refute any criticism that the University 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 program’s constitutionality, and efficacy, in light of the school’s experience 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 constitute a “critical mass.” However, the compelling interest that justifies

consideration of race in college admissions is not an interest in enrolling a certain number of minority students, but an interest in obtaining “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 enrollment 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 permit judicial scrutiny of the policies adopted to reach them. The record here reveals that the University articulated concrete and precise 

goals—e.g., ending stereotypes, promoting “cross-racial understanding,” 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 approved in prior cases. It also gave a “reasoned, principled explanation” 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 record, 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 unconstitutionality. 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, Washington, 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 primarily 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 invalidated this admissions system, holding that any consideration of race in college admissions violates the Equal Protection 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 characteristics” that might give the admissions committee insight 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 Percent 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 graduate 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 combination 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 candidate’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 admissions policy was allowing it to provide “the educational

benefits of a diverse student body . . . to all of the University’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 proposal 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 University.” Id., at 23a. After the board approved the proposal,

the University adopted a new admissions policy to implement it. The University has continued to use that admissions 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 continues to be referenced as a “Top Ten Percent Plan,” a student 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 admitted 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 component 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 status of the applicant’s family, the socioeconomic status of 

the applicant’s school, the applicant’s family responsibilities, 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 applicant’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 application, 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, consideration 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 consideration of race, within the full context of the entire application, 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 unsupported by evidence in the record or empirical data”).

There is also no dispute, however, that race, when considered 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. Petitioner’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 District 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 program. 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 scrutiny,” Fisher I, 570 U. S., at ___ (slip op., at 7). Strict scrutiny requires the university to demonstrate with clarity

that its “‘purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.’” 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 deference 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 promote 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 omitted). Though “[n]arrow tailoring does not require exhaustion 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 admissions 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 program 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 admission 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 
Cite as: 579 U. S. ____ (2016) 9 

Opinion of the Court 

being admitted to the University if the school used raceconscious 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 factfinding. When petitioner’s application was rejected, however, the University’s combined percentage-plan/holisticreview 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 determining the constitutionality of the University’s current admissions 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, therefore, 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 University, 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 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. 

Under the circumstances of this case, then, a remand 

would do nothing more than prolong a suit that has already 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 prospective 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 binding 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 continuing obligation to satisfy the burden of strict scrutiny

in light of changing circumstances. The University engages in periodic reassessment of the constitutionality, and 

efficacy, of its admissions program. See Supp. App. 32a; 

App. 448a. Going forward, that assessment must be undertaken in light of the experience the school has accumulated 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 diversity 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 necessary 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 inferences in her favor, petitioner has shown by a preponderance 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 Appeals, 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 program 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 student 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 understanding, helps to break down racial stereotypes, and enables

students to better understand persons of different races.” 

Id., at 330 (internal quotation marks and alteration omitted). Equally important, “student body diversity promotes 

learning outcomes, and better prepares students for an

increasingly diverse workforce and society.” Ibid. (internal 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 educational 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 University identifies the educational values it seeks to realize 

through its admissions process: 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.’” 

Supp. App. 1a; see also id., at 69a; App. 314a–315a (deposition 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, preparation for the challenges of an increasingly diverse workforce, 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 University’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 increasingly 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, principled 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 burden 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 University’s good faith in conducting its studies, and the 

Court properly declines to consider the extrarecord materials 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 regarding the admission of applicants who are related to ‘‘politically 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 University from 1996 to 2002. In 1996, for example, 266 AfricanAmerican 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 University 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 percent 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 University 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] compelling 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 consideration 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 portion of admissions decisions should be a hallmark of narrow 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 recruitment events. Supp. App. 29a–32a; App. 450a–452a (citing

affidavit of Michael Orr ¶¶4–20). Perhaps more significantly, 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 precedent 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 enrollment. Percentage plans are “adopted with racially segregated 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 enrollment 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 maintain 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 multidimensional 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 admissions policy that relies exclusively on class rank creates

perverse incentives for applicants. Percentage plans

“encourage parents to keep their children in lowperforming 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, realistically, 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 petitioner’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 continue to use this data to scrutinize the fairness of its admissions 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 explains, 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 benefits, 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 decision in this case. See Fisher v. University of Tex. at Austin, 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 compelling 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 requirements 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 racebased 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 AfricanAmerican, 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 presents no evidence that its admissions officers, in administering 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 without 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 ethnic diversity, UT either has not crunched those numbers

or has not revealed what they show. Nor has UT explained why the underrepresentation of Asian-American 

students in many classes justifies its plan, which discriminates against those students. 

At times, UT has claimed that its plan is needed to 

achieve a “critical mass” of African-American and Hispanic 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 students nor the percentage of African-Americans or Hispanics in the general population of the State. The term remains 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 component 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 predominantly African-American or Hispanic. As UT put it in its

brief in Fisher I, the race-based component of its admissions 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 AfricanAmerican and Hispanic admittees when it comes to “records 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 admittees. 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 admittees 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 assumption 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 address 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 controlling factor. Admissions were based on two criteria: 

(1) the applicant’s Academic Index (AI), which was computed 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 AsianAmerican, 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 admissions. 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 Personal Achievement Index (PAI) that was intended, among 

other things, to increase minority enrollment. The raceneutral 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 experience, 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 candidates. 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 mandated 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 raceneutral 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 system 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 American 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 number 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, AsianAmericans, 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 consideration 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 announced that “[t]he University of Texas at Austin will 

modify its admissions procedures” in light of Grutter, 

including by “implementing procedures at the undergraduate 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 

—————— 

1See 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 applicant” 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 admissions process was anything other than a foregone conclusion following the president’s announcement.

“The University’s plan to resume race-conscious admissions 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 subset of undergraduate classes containing at least five students, 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 AfricanAmericans, 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 characteristics 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 classify themselves from among five predefined racial categories 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 preferences 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 consider 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 classifications, 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 contextual”). 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 demonstrate that its program is narrowly tailored to achieve that

or any other particular interest. By accepting UT’s rationales 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., concurring 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, religious, 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 quotation marks omitted). Given our constitutional commitment 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 Protection 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 citations omitted). “[J]udicial review must begin from the

position that ‘any official action that treats a person differently on account of his race or ethnic origin is inherently 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 scrutiny, the use of race must be “necessary to further a compelling governmental interest,” and the means employed

must be “‘specifically and narrowly’” tailored to accomplish 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 classification.’” Gratz v. Bollinger, 539 U. S. 244, 270 (2003) (quoting 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 Constitution 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 permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.’” 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 Respondents 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 (confirming 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 narrow tailoring analysis when the University will not 

define the ends. We cannot tell whether the admissions 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 reviewing 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 precedents do not require UT to pinpoint “an interest in enrolling 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 insufficient,” 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 adequately 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 selfserving 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 precedent 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 pronouncements of necessity has no place in equal protection analysis”). Most troublingly, the majority’s uncritical deference 

to UT’s self-serving claims blatantly contradicts our decision 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 emphasized 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. Neither 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 depend 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 example, is the critical mass of African-Americans and Hispanics 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 Internet 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 undergraduate 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,” because “[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 community 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 underrepresented at UT when compared to the demographics of the 

State.2 

On the other hand, UT’s counsel asserted that the critical 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 Respondents 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 (QuickFacts Texas), online at https://www.census.gov/quickfacts/table/ 

PST045215/48. By contrast, 37.6% of Texas’s 2010 population identified 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”); Freeman 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 classifications, employed first to obtain the appropriate mixture of

racial views and then to ensure that the [program] continues 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 compelling state interest simply by relabeling it “racial diversity.”’” 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 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.” 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 undefined 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 stopping point short of patently unconstitutional racial balancing. Demographic disparities thus cannot be used to 

satisfy strict scrutiny here. See Croson, supra, at 498 

(rejecting a municipality’s assertion that its racial setaside 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 Proposal 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 containing five or more students. As noted above, the study 

indicated that 52% of these classes had no AfricanAmericans, 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 AfricanAmericans, 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 underrepresented 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 classroom diversity was merely a “red flag that UT had not yet 

fully realized” “the constitutionally permissible educational benefits of diversity.” Brief for Respondents in No. 11– 

345, at 43. But UT has failed to identify the level of classroom diversity it deems sufficient, again making it impossible to apply strict scrutiny.3 A reviewing court cannot 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 knowing 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 If UT’s goal is to have at least two African-Americans, two Hispanics, and two Asian-Americans present in each of the relevant classrooms, that goal is literally unreachable in classes of five and practically 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 educational 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 preferences. 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 review”). 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 evidence, 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 classified as Asian-American than for those classified as Hispanic. Supp. App. 26a. But the UT plan discriminates 

against Asian-American students.4 UT is apparently 

—————— 

4The majority’s assertion that UT’s race-based policy does not discriminate 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 balancing based on Texas demographics (where Hispanics

outnumber Asian-Americans), see Part II–C–1, supra, it 

seemingly views the classroom contributions of AsianAmerican 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 different races.’” Brief for Asian American Legal Foundation 

et al. as Amici Curiae 11 (representing 117 AsianAmerican organizations). The majority opinion effectively 

endorses this view, crediting UT’s reliance on the classroom 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 classrooms. In fact, they act almost as if Asian-American

students do not exist. See ante, at 14 (mentioning AsianAmericans 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 successful). 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 discretion in determining which minority groups should benefit 

from the consideration of race.” 645 F. Supp. 2d, at 606. 

This reasoning, which the majority implicitly accepts by 

blessing UT’s reliance on the classroom study, places the 

Court on the “tortuous” path of “decid[ing] which races to 

—————— 

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

students is absolutely shameless. For instance, one of the Fifth Circuit’s primary contentions—which UT repeatedly highlighted in its

brief and at argument—is that, given the SAT score gaps between

whites on the one hand and African-Americans and Hispanics on the

other, “holistic admissions would approach an all-white enterprise” in 

the absence of racial preferences. 758 F. 3d, at 647. In making this

argument, the court below failed to mention Asian-Americans. The 

reason for this omission is obvious: As indicated in the very sources that 

the Fifth Circuit relied on for this point, on the very pages it cited, 

Asian-American enrollees admitted to UT through holistic review have

consistently higher average SAT scores than white enrollees admitted

through holistic review. See UT, Office of Admissions, Implementation

and Results of the Texas Automatic Admissions Law (HB 588) at the 

University of Texas at Austin, Demographic Analysis of Entering

Freshmen Fall of 2006, pp. 11–14 (rev. Dec. 6, 2007), cited at 758 F. 3d, 

at 647, n. 71; UT, Office of Admissions, Implementation and Results of 

the Texas Automatic Admissions Law (HB 588) at the University of

Texas at Austin, Demographic Analysis of Entering Freshmen Fall of

2008, pp. 12–15 (Oct. 28, 2008), cited at 758 F. 3d, at 647, n. 72. The 

Fifth Circuit’s intentional omission of Asian-Americans from its analysis is also evident in the appendices to its opinion, which either omit 

any reference to Asian-Americans or misleadingly label them as 

“other.” See id., at 661. The reality of how UT treats Asian-American

applicants apparently does not fit into the neat story the Fifth Circuit

wanted to tell. 
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, especially 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 Broadcasting, 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 Broadcasting, 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 conclusion 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 classifications 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 ‘unequal 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 [students] 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 diversity 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 categories”); 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, Japanese, Korean, Vietnamese, Cambodian, Hmong, Indian

and other backgrounds comprising roughly 60% of the

world’s population,” Brief for Asian American Legal Foundation 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 together 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 “Cambodian Americans.” Tr. of Oral Arg. 52 (Oct. 10, 2012). As 

long as there are a sufficient number of “Asian Americans,” 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,” “Hispanic,” “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 AsianAmericans marry a spouse of a different race or ethnicity.8 

—————— 

6 And it is anybody’s guess whether this group also includes applicants “of full or partial Arab, Armenian, Azerbaijani, Georgian, Kurdish, 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 applicant will have a perspective that differs from that of applicants who describe themselves as members of different 

groups. But is this necessarily so? If an applicant has 

one grandparent, great-grandparent, or great-greatgrandparent 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 invitation for applicants to game the system.

Finally, it seems clear that the lack of classroom diversity 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 preferential 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 diversity, 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-ofintermarriage/. 
Cite as: 579 U. S. ____ (2016) 29 

ALITO, J., dissenting 

provides a justification for racial and ethnic discrimination, which the Constitution rarely allows. 

3 

UT’s purported interest in intraracial diversity, or “diversity within diversity,” Brief for Respondents 34, also

falls short. At bottom, this argument relies on the unsupported 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 majorityminority schools. These students, UT argued, tend to 

come from poor, disadvantaged families, and the University 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 admissions 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 understanding, as well as in breaking down racial stereotypes”); 

ibid. (intimating that the underprivileged minority students admitted under the Top Ten Percent Plan “reinforc[e]” “stereotypical assumptions”); Tr. of Oral Arg. 43–

45 (Oct. 10, 2012) (“[A]lthough the percentage plan certainly helps with minority admissions, by and large, the—

the minorities who are admitted tend to come from segregated, 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 students have “higher levels of preparation and better prospects 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 University, which risks driving away matriculating minority students from difficult majors like business or the 

sciences”).

Remarkably, UT now contends that petitioner has “fabricat[ed]” the argument that it is seeking affluent minorities. 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, although UT reframes its argument, it continues to assert 

that it needs affirmative action to admit privileged minorities. 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 educational benefits of diversity would not be met if all of [the]

minority students were . . . coming from depressed socioeconomic 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 Respondents in No. 11–345, p. 34). And UT’s amici continue to press the fullthroated version of the argument. See Brief for Six Educational Nonprofit 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, innercity backgrounds.’ Schools like UT combat such stereotypes by seeking 

to admit African-American and Latino students from elevated socioeconomic 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 student”); 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 associations. 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 perspectives 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., dissenting). 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 stereotypical assumptions [that] the Equal Protection Clause forbids.” 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 minorities 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 “‘economically and/or educationally disadvantaged’ applicants”).

Now we are told that a program that tends to admit poor 

and disadvantaged minority students is inadequate because 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 Hispanics 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 AfricanAmerican 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 admittees 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 . . . academically excellent”). “On average,” UT claims, “AfricanAmerican and Hispanic holistic admits have higher SAT 

scores than their Top 10% counterparts.” Brief for Respondents 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 

—————— 

10See, 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/answersheet/wp/2014/02/21/a-telling-study-about-act-sat-scores/. 11See, 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 students 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 includes many excellent schools.13 

—————— 

12Zumbrun, 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-incomeinequality-how-wealthier-kids-rank-higher/. 13See 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/testingpolicy.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/admissionsaid/what-we-look-for; George Washington University, Test-Optional 

Policy, online at https://undergraduate.admissions.gwu.edu/testoptional-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 something 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 characteristics” 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 AfricanAmericans and Hispanics admitted through the Top Ten

Percent Plan. In fact, because UT administrators make no 

collective, qualitative assessment of the minorities admitted 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 determine 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 stimulating.” 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 undefined) for qualitative diversity will be reached.” Id., at 

671. UT’s intraracial diversity rationale is thus too imprecise 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 purpose underlying the discriminatory classification.” Mississippi 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 interest in avoiding “feelings of loneliness and isolation” among 

minority students. Ante, at 14–15; see Brief for Respondents 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 comparison 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 driving UT’s interest in avoiding racial isolation, then its

treatment of Asian-American students is hard to understand. 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 AsianAmericans 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 intraracial diversity, its interest in avoiding racial isolation cannot 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 benefits 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 classifications.” 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 approaches to further its goals, such as intensifying its outreach efforts, uncapping the Top Ten Percent Law, or 

placing greater weight on socioeconomic factors. 

The majority argues that none of these alternatives is “a

workable means for the University to attain the benefits of 

diversity it sought.” Ante, at 16. Tellingly, however, the

majority devotes only a single, conclusory sentence to the

most obvious race-neutral alternative: race-blind, holistic 

review that considers the applicant’s unique characteristics and personal circumstances. See ibid.14 Under a 

system that combines the Top Ten Percent Plan with raceblind, holistic review, UT could still admit “the star athlete or musician whose grades suffered because of daily 

practices and training,” the “talented young biologist who

struggled to maintain above-average grades in humanities

classes,” and the “student whose freshman-year grades 

were poor because of a family crisis but who got herself 

back on track in her last three years of school.” Ante, at 

—————— 

14The Court asserts that race-blind, holistic review is not a workable 

alternative because UT tried, and failed, to meet its goals via that

method from 1996 to 2003. See ante, at 16 (“Perhaps more significantly, 

in the wake of Hopwood, the University spent seven years attempting to achieve its compelling interest using race-neutral holistic review”). But the Court never explains its basis for concluding that UT’s

previous system failed. We are not told how the Court is measuring

success or how it knows that a race-conscious program will satisfy UT’s 

goals more effectively than race-neutral, holistic review. And although

the majority elsewhere emphasizes “the University’s continuing obligation to satisfy the burden of strict scrutiny in light of changing circumstances,” ante, at 10, its rejection of race-blind, holistic review relies 

exclusively on “evidence” predating petitioner’s suit by five years. 
 

 

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 raceconscious holistic review will achieve its diversity objectives 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 review in 2008 even if race were not a factor. If that assumption 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 consciousness played a role in only a small portion of admissions 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 freshmen from Texas and 158 Hispanic freshmen from Texas were enrolled 

in 2008, thus reflecting an increase of only 15 African-American students 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 potentially 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 recognizes that the record here is “almost devoid of information 

about the students who secured admission to the University 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 admissions 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 consideration 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.), particularly 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 deficiencies 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 racebased 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 imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, 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 

—————— 

16Recall that UT’s president vowed to reinstate race-conscious admissions 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 authority 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 strictscrutiny 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 consideration 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 

—————— 

17See 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. Bollinger, 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 welldocumented 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 explained in an independent investigation into UT admissions, UT maintained a clandestine admissions system

that evaded public scrutiny until a former admissions 

officer blew the whistle in 2014. See Kroll, Inc., University of Texas at Austin—Investigation of Admissions Practices 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 Regents, 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 Underqualified Students Get Into UT, Dallas Morning News, 

July 20, 2015, online at http://www.dallasnews.com/news/ 

education/headlines/20150720-influential-texans-helpedunderqualified-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 administrative 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 competitive boost or special consideration in the admissions

process,” and noting that this is “an aspect of the admissions process that does not appear in the public representations 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 

—————— 

18The 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 undoubtedly 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 Registrar, Transcript—Official, online at https://

registrar.utexas.edu/students/transcripts-official (instructing graduates on how to obtain a transcript listing a “comprehensive 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 “extrarecord 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 “tangential 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., University 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 

—————— 

19UT’s current records retention policy requires it to retain student 

records, including application materials, for at least five years after a 

student graduates. See University of Texas at Austin, Records Retention Schedule, Agency Item No. AALL358, p. 58 (Nov. 14, 2014), online 

at https://www.tsl.texas.gov/sites/default/files/public/tslac/slrm/state/

schedules/721.pdf. If this policy was in place when UT resumed raceconscious 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”). 20See ante, at 10 (“Fisher I clarified the stringency of the strictscrutiny 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 “alter[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 principles [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 government to automatically prevail. 

C 

Third, the majority notes that this litigation has persisted for many years, that petitioner has already graduated 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 counsel 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 dismissed); 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 explaining—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 coherent 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 respectfully dissent.