Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/12

Rh being admitted to the University if the school used race-conscious holistic review to select its entire incoming class, as was the case in Grutter.

Despite the Top Ten Percent Plan’s outsized effect on petitioner’s chances of admission, she has not challenged it. For that reason, throughout this litigation, the Top Ten Percent Plan has been taken, somewhat artificially, as a given premise.

Petitioner’s acceptance of the Top Ten Percent Plan complicates this Court’s review. In particular, it has led to a record that is almost devoid of information about the students who secured admission to the University through the Plan. The Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review.

In an ordinary case, this evidentiary gap perhaps could be filled by a remand to the district court for further factfinding. When petitioner’s application was rejected, how­ever, the University’s combined percentage-plan/holistic­ review approach to admission had been in effect for just three years. While studies undertaken over the eight years since then may be of significant value in 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