Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/67

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race-conscious plan,” ante, at 13–14. And the Court recog­nizes that the record here is “almost devoid of information about the students who secured admission to the Univer­sity through the Plan,” and that “[t]he Court thus cannot know how students admitted solely based on their class rank differ in their contribution to diversity from students admitted through holistic review.” Ante, at 9. This should be the end of the case: Without identifying what was missing from the African-American and Hispanic students it was already admitting through its race-neutral process, and without showing how the use of race-based admis­sions could rectify the deficiency, UT cannot demonstrate that its procedure is narrowly tailored.

Yet, somehow, the majority concludes that petitioner must lose as a result of UT’s failure to provide evidence justifying its decision to employ racial discrimination. Tellingly, the Court frames its analysis as if petitioner bears the burden of proof here. See ante, at 11–19. But it is not the petitioner’s burden to show that the considera­tion of race is unconstitutional. To the extent the record is inadequate, the responsibility lies with UT. For “[w]hen a court subjects governmental action to strict scrutiny, it cannot construe ambiguities in favor of the State,” Parents Involved, supra, at 786 (opinion of KENNEDY, J.), particu­larly where, as here, the summary judgment posture obligates the Court to view the facts in the light most favorable to petitioner, see ''Matsushita Elec. Industrial Co. v. Zenith Radio Corp.'', 475 U. S. 574, 587 (1986).

Given that the University bears the burden of proof, it is not surprising that UT never made the argument that it should win based on the lack of evidence. UT instead asserts that “if the Court believes there are any deficien­cies in [the] record that cast doubt on the constitutionality of UT’s policy, the answer is to order a trial, not to grant summary judgment.” Brief for Respondents 51; see also id., at 52–53 (“[I]f this Court has any doubts about how