Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/37

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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).

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