Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/66

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not evidence of unconstitutionality.” Ante, at 15. This argument directly contradicts this Court’s precedent. Because racial classifications are “ ‘a highly suspect tool,’ ”Grutter, 539 U. S, at 326, they should be employed only “as a last resort,” Croson, 488 U. S., at 519 (opinion of KENNEDY, J.); see also Grutter, supra, at 342 (“[R]acial classifications, however compelling their goals, are poten­tially so dangerous that they may be employed no more broadly than the interest demands”). Where, as here, racial preferences have only a slight impact on minority enrollment, a race-neutral alternative likely could have reached the same result. See Parents Involved, 551 U. S., at 733–734 (holding that the “minimal effect” of school districts’ racial classifications “casts doubt on the necessity of using [such] classifications” and “suggests that other means [of achieving their objectives] would be effective”). As JUSTICE KENNEDY once aptly put it, “the small number of [students] affected suggests that the schoo[l] could have achieved [its] stated ends through different means.” Id., at 790 (opinion concurring in part and concurring in judgment). And in this case, a race-neutral alternative could accomplish UT’s objectives without gratuitously branding the covers of tens of thousands of applications with a bare racial stamp and “tell[ing] each student he or she is to be defined by race.” Id., at 789.

The majority purports to agree with much of the above analysis. The Court acknowledges that “ ‘because racial characteristics so seldom provide a relevant basis for disparate treatment,’ ” “ ‘[r]ace may not be considered [by a university] unless the admissions process can withstand strict scrutiny.’ ” Ante, at 6–7. The Court admits that the burden of proof is on UT, ante, at 7, and that “a university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a