Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/41

Rh

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.

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 exam­ ple, 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