Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/68

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the Top 10% Law works, or how UT's holistic plan offsets the tradeoffs of the Top 10% Law, the answer is to remand for a trial"). Nevertheless, the majority cites three reasons for breaking from the normal strict scrutiny standard. None of these is convincing.

First, the Court states that, while "th[e] evidentiary gap perhaps could be filled by a remand to the district court for further factfinding" in "an ordinary case," that will not work here because "[w]hen petitioner's application was rejected, . . . the University's combined percentage-plan' holistic-review approach to admission had been in effect for just three years," so "further factfinding" "might yield little insight." Ante, at 9. This reasoning is dangerously incorrect. The Equal Protection Clause does not provide a 3-year grace period for racial discrimination. Under strict scrutiny, UT was required to identify evidence that race-based admissions were necessary to achieve a compelling interest before it put them in place — not three or more years after. See ante, at 13–14 ("Petitioner is correct that a university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan" (emphasis added)); Fisher I, 570 U. S., at ___ (slip op., at 11) ("[S]trict scrutiny im­poses on the university the ultimate burden of demon­strating, before turning to racial classifications, that avail­ able, workable race-neutral alternatives do not suffice" (emphasis added)). UT's failure to obtain actual evidence that racial preferences were necessary before resolving to use them only confirms that its decision to inject race into admissions was a reflexive response to Grutter, and that UT did not seriously consider whether race-neutral means