Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/38

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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 nar­ row tailoring analysis when the University will not define the ends. We cannot tell whether the admis­ sions program closely ‘fits’ the University’s goal when it fails to objectively articulate its goal. Nor can we determine whether considering race is necessary for the University to achieve ‘critical mass,’ or whether there are effective race-neutral alternatives, when it has not described what ‘critical mass’ requires.” 758 F. 3d, at 667 (dissenting opinion).

Indeed, without knowing in reasonably specific terms what critical mass is or how it can be measured, a review­ ing court cannot conduct the requisite “careful judicial inquiry” into whether the use of race was “ ‘necessary.’ ” Fisher I, supra, at ___ (slip op., at 10).

To be sure, I agree with the majority that our prece­ dents do not require UT to pinpoint “an interest in enrol­ ling a certain number of minority students.” Ante, at 11. But in order for us to assess whether UT’s program is