Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/65

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17. All of these unique circumstances can be considered without injecting race into the process. Because UT has failed to provide any evidence whatsoever that race-conscious holistic review will achieve its diversity objec­tives more effectively than race-blind holistic review, it cannot satisfy the heavy burden imposed by the strict scrutiny standard.

The fact that UT’s racial preferences are unnecessary to achieve its stated goals is further demonstrated by their minimal effect on UT’s diversity. In 2004, when race was not a factor, 3.6% of non-Top Ten Percent Texas enrollees were African-American and 11.6% were Hispanic. See Supp. App. 157a. It would stand to reason that at least the same percentages of African-American and Hispanic students would have been admitted through holistic re­view in 2008 even if race were not a factor. If that as­sumption is correct, then race was determinative for only 15 African-American students and 18 Hispanic students in 2008 (representing 0.2% and 0.3%, respectively, of the total enrolled first-time freshmen from Texas high schools). See ibid.

The majority contends that “[t]he fact that race con­sciousness played a role in only a small portion of admissions decisions should be a hallmark of narrow tailoring,