Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/13

10 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