Page:Fisher v. University of Texas at Austin, 579 U.S. (2016) (slip opinion).pdf/69

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would serve its goals as well as a race-based process.

Second, in an effort to excuse UT’s lack of evidence, the Court argues that because “the University lacks any au­thority to alter the role of the Top Ten Percent Plan,” “it similarly had no reason to keep extensive data on the Plan or the students admitted under it—particularly in the years before Fisher I clarified the stringency of the strict-scrutiny burden for a school that employs race-conscious review.” Ante, at 9–10. But UT has long been aware that it bears the burden of justifying its racial discrimination under strict scrutiny. See, e.g., Brief for Respondents in No. 11–345, at 22 (“It is undisputed that UT’s considera­tion of race in its holistic admissions process triggers strict scrutiny,” and “that inquiry is undeniably rigorous”). In light of this burden, UT had every reason to keep data on the students admitted through the Top Ten Percent Plan. Without such data, how could UT have possibly identified any characteristics that were lacking in Top Ten Percent admittees and that could be obtained via race-conscious admissions? How could UT determine that employing a race-based process would serve its goals better than, for instance, expanding the Top Ten Percent Plan? UT could