Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/45

Rh

see also id., at 1a, 25a, 39a; App. 316a. In support of this proposition, UT relied on a study of select classes contain­ing five or more students. As noted above, the study indicated that 52% of these classes had no African Americans, 16% had no Asian-Americans, and 12% had no Hispanics. Supp. App. 26a. The study further suggested that only 21% of these classes had two or more African Americans, 67% had two or more Asian-Americans, and 70% had two or more Hispanics. See ibid. Based on this study, UT concluded that it had a “compelling educational interest” in employing racial preferences to ensure that it did not “have large numbers of classes in which there are no students—or only a single student—of a given un­derrepresented race or ethnicity.” Id., at 25a.

UT now equivocates, disclaiming any discrete interest in classroom diversity. See Brief for Respondents 26–27. Instead, UT has taken the position that the lack of class­room diversity was merely a “red flag that UT had not yet fully realized” “the constitutionally permissible educational benefits of diversity.” Brief for Respondents in No. 11– 345, at 43. But UT has failed to identify the level of class room diversity it deems sufficient, again making it impossible to apply strict scrutiny. A reviewing court can­ not determine whether UT’s race-conscious program was necessary to remove the so-called “red flag” without understanding the precise nature of that goal or knowing when the “red flag” will be considered to have disappeared.

Putting aside UT’s effective abandonment of its interest in classroom diversity, the evidence cited in support of that interest is woefully insufficient to show that UT’s