Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College

Supreme Court briefMar 30, 2021

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No. 20-1199

In the Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC.,

PETITIONER,

PRESIDENT & FELLOWS OF HARVARD COLLEGE.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE STATE OF TEXAS AS AMICUS

CURIAE IN SUPPORT OF CERTIORARI

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

JUDD E. STONE II

Solicitor General

Counsel of Record

LANORA C. PETTIT

Assistant Solicitor General

BEAU CARTER

Assistant Attorney General

QU E S TIO NS PR E SE NTE D

1. Whether this Court should overrule Grutter v. Bollinger, 539 U.S. 306 (2003).

2. Whether institutions of higher education violate

Title VI of the Civil Rights Act by penalizing AsianAmerican applicants on the basis of race.

(I)

TA BLE O F C O NTE N TS

Page

Questions Presented ........................................................ I

Table of Authorities ...................................................... III

Interest of Amicus Curiae ............................................... 1

Introduction...................................................................... 2

Summary of Argument .................................................... 3

Argument.......................................................................... 4

I. Grutter Was an Unprincipled Departure from

this Court’s Rule that Racial Preferences Are

Unacceptable .............................................................. 4

A. This Court has recognized in every context

save higher-education admissions that the

Constitution forbids racial discrimination .......... 4

B. Higher-education admissions is the only

context where a party accused of

discrimination may determine whether

discrimination is necessary.................................. 7

II. Experience Demonstrates That the Grutter

Standard Is Unworkable ......................................... 11

A. Texas’s experiences with affirmative action

demonstrate that Grutter is unworkable.......... 11

B. The experience of petitioner’s members

further demonstrates the theoretical

problems behind Grutter ................................... 18

III. This Court Has Undermined Grutter in

Subsequent Case Law.............................................. 20

IV. Purported Reliance Interests Are No Basis to

Retain Grutter .......................................................... 21

Conclusion ...................................................................... 23

(II)

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

Adarand Constructors, Inc. v. Peña,

515 U.S. 200 (1995) ......................................................... 5

Bolling v. Sharpe,

347 U.S. 497 (1954) ......................................................... 4

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) ......................................................... 9

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) ..................................................... 2, 7

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) .............................................. passim

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991) ......................................................... 4

Fisher v. Univ. of Tex.,

631 F.3d 213 (5th Cir. 2011) ........................................ 14

570 U.S. 297 (2013) .............................................. passim

758 F.3d 633 (5th Cir. 2014) ........................................ 14

136 S. Ct. 2198 (2016) .......................................... passim

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) ..................................................... 5

Franchise Tax Bd. of Cal. v. Hyatt,

139 S. Ct. 1485 (2019) ..................................................... 3

Gratz v. Bollinger,

539 U.S. 244 (2003) .............................................. passim

Griffin v. Cty. Sch. Bd. of Prince Edward Cty.,

377 U.S. 218 (1964) ....................................................... 20

Grutter v. Bollinger,

539 U.S. 306 (2003) ............................................. passim

Hopwood v. Texas,

78 F.3d 932 (5th Cir. 1996) ................................ 8, 12, 13

(III)

Janus v. AFCSME, Council 31,

138 S. Ct. 2448 (2018) ..................................................... 3

Loving v. Virginia,

388 U.S. 1 (1967) ............................................................. 5

Metro Broad., Inc. v. FCC,

497 U.S. 547 (1990) ......................................................... 5

Miller v. Johnson,

515 U.S. 900 (1995) ....................................................... 22

Milliken v. Bradley,

433 U.S. 267 (1977) ......................................................... 6

Palmore v. Sidoti,

466 U.S. 429 (1984) ......................................................... 6

Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) .............................................. passim

Plessy v. Ferguson,

163 U.S. 537 (1896) ..................................................... 1, 2

Powers v. Ohio,

499 U.S. 400 (1991) ......................................................... 9

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ................................................... 22

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ..................................................... 8, 9

Rice v. Cayetano,

528 U.S. 495 (2000) ................................................... 4, 22

Schuette v. BAMN,

572 U.S. 291 (2014) ......................................................... 9

Shaw v. Hunt,

517 U.S. 899 (1996) ......................................................... 6

Shelley v. Kraemer,

334 U.S. 1 (1948) ............................................................. 9

Sweatt v. Painter,

339 U.S. 629 (1950) ................................................... 2, 12

The Civil Rights Cases,

109 U.S. 3 (1883) ........................................................... 18

United States v. Gaudin,

515 U.S. 506 (1995) ......................................................... 3

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) ..................................................... 6, 8

Constitutional Provisions and Statutes:

U.S. Const. amend.:

I .................................................................................... 8, 9

V ....................................................................................... 5

XIV........................................................................ passim

Title VI of The Civil Rights Act of 1964,

42 U.S.C. § 2000D et seq. ........................................... I, 5

Top Ten Percent Law,

Tex. Educ. Code § 51.803 ................................ 13, 14, 16

Miscellaneous:

2020-21 Statistical Handbook, UNIVERSITY OF

TEXAS INSTITUTIONAL REPORTING,

RESEARCH, AND INFORMATION STUDIES,

https://tinyurl.com/622shuuv....................................... 16

Bill Powers, Op. Ed.: Why Schools Still Need

Affirmative Action, NAT’L L.J. (Aug. 4, 2014) ............ 9

Brian N. Lizotte, The Diversity Rationale:

Unprovable, Uncompelling,

11 MICH. J. RACE & L. 625 (2006) ............................... 10

Brief for Petitioner, Sweatt v. Painter,

339 U.S. 629 (1950) (No. 44) .......................................... 2

Enrollment Forecast 2021-2035, TEXAS HIGHER

EDUCATION COORDINATING BOARD (Jan. 2021),

https://tinyurl.com/njn8d98w ........................................ 1

Hau Hsu, The Muddled History of Anti-Asian

Violence, THE NEW YORKER (Feb. 28, 2021),

https://tinyurl.com/ra9zamns ...................................... 19

Mark T. Terrell, Bucking Grutter: Why

Critical Mass Should Be Thrown Off the

Affirmative-Action Horse,

16 TEX. J. C.L. & C.R. 233 (2011) ............................... 10

Matthew Watkins & Neena Satija, At A&M,

Diversity Increases Without Affirmative Action,

THE TEXAS TRIBUNE (June 19, 2016),

https://tinyurl.com/58nrzf3w ....................................... 17

Press Release, UT NEWS, Statement on

Admissions Policies (July 3, 2018),

https://tinyurl.com/3p296ck8 ....................................... 16

Press Release, UT NEWS, University of

Texas at Austin President Responds to

Supreme Court Ruling (June 23, 2016),

https://tinyurl.com/9jkux5u5 ....................................... 16

Report on the Implementation of SB 175,

81st Legislature, for the period ending

Fall 2018, University of Texas at

Austin, https://tinyurl.com/yynzcf95 .......................... 16

Report on the Implementation of SB 175,

81st Legislature, for the period ending

Fall 2020, University of Texas at

Austin, https://tinyurl.com/d8jve84k .......................... 16

VII

Trina Jones, The Diversity Rationale: A

Problematic Solution,

1 STAN. J. C.R. & C.L. 171 (2005) ................................ 10

INTE RE ST O F A MIC U S C U R IA E

This May, thousands of students will graduate from

the State of Texas’s 118 higher-education institutions,

which enroll roughly 1.5 million students. 1 The admissions practices of Texas’s public colleges and universities

have frequently been challenged on equal-protection

grounds. For years, the State has struggled to comply

with this Court’s sometimes-conflicting guidance. The

State of Texas has a unique perspective on the ongoing

impact of race in American colleges and universities.

This May also marks the 125th anniversary of Plessy

v. Ferguson, 163 U.S. 537 (1896), which is now rightly derided for endorsing a view of racial inequality that has no

place in a free society. Standing alone, Justice Harlan exhorted that “[o]ur constitution is color-blind, and neither

knows nor tolerates classes among citizens. In respect of

civil rights, all citizens are equal before the law.” Plessy,

163 U.S. at 559 (Harlan, J., dissenting). Justice Harlan’s

view now holds sway in all contexts, except one: highereducation admissions.

This case provides the opportunity to correct that

shameful anomaly. Texas’s experience demonstrates

why this Court should revisit its prior decisions and hold

that racial discrimination has no more place on a college

campus than it does in any other area of our public life.

Enrollment Forecast 2021-2035, TEXAS HIGHER EDUCATION

COORDINATING BOARD (Jan. 2021), https://tinyurl.com/njn8d98w.

No counsel for any party authored any part of this brief. No person

or entity contributed monetarily to its preparation or submission.

On March 19, 2021, counsel of record for all parties received notice

of Texas’s intention to file this brief.

(1)

INT RO D U C T IO N

Abigail Fisher was right. Over seventy years ago,

Justice Marshall wrote on behalf of a different applicant

to the University of Texas that “[t]he basic law of our

land, as crystallized in our Constitution, rejects any distinctions made by government on the basis of race, creed,

or color.” Brief for Petitioner at 75, Sweatt v. Painter,

339 U.S. 629 (1950) (No. 44). The Court agreed, 339 U.S.

at 631, paving the way to overturning Plessy in Brown v.

Board of Education, 347 U.S. 483 (1954).

In 2008, relying on that basic law, Fisher sought admission to “the most renowned campus of the Texas state

university system.” Fisher v. Univ. of Tex., 570 U.S. 297,

304 (2013) (Fisher II). She was considered less valuable

because of her race. Id. at 305. But applying a line of decisions culminating in Grutter v. Bollinger, 539 U.S. 306

(2003), this Court permitted the University’s administrators to deny Fisher the Constitution’s promise of racial

equality in favor of the administrators’ subjective views

of racial equity. Fisher II, 570 U.S. at 305.

The University of Texas was wrong. And Harvard,

respondent here, has been wrong for a century—first

denying Jews an equal admissions process, and now

Asian-Americans. See Grutter, 539 U.S. at 369 (Thomas,

J., dissenting in relevant part). 2 “The moral imperative

of racial neutrality is the driving force of the Equal Protection Clause.” City of Richmond v. J.A. Croson Co., 488

U.S. 469, 518 (1989) (Kennedy, J., concurring). Because

Harvard has chosen to accept federal funding, it is held

to the same standard. Gratz v. Bollinger, 539 U.S. 244,

276 n.23 (2003). That standard would not permit racial

Like petitioner, Texas uses the term “Asian-Americans” only

because that is what Harvard does. Pet. 7 n.1.

preferences in any other context, and it should not do so

here. This Court should grant review, overrule Grutter,

and finally put into practice its statement in Fisher II

that “[t]he higher education dynamic does not change the

narrow tailoring analysis” applicable to racial discrimination. 570 U.S. at 314.

SU M MA RY O F AR GU ME NT

This Court sometimes reconsiders one of its decisions

when it implicates constitutional rights, deviates

substantially from this Court’s other decisions, proves

unworkable, rests on later-discredited doctrines, or

generates few cognizable reliance interests. Franchise

Tax Bd. of Cal. v. Hyatt, 139 S. Ct. 1485, 1499 (2019) (citing Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 247879 (2018); United States v. Gaudin, 515 U.S. 506, 521

(1995)).

Wrong the day it was decided, Grutter suffers from

each of these flaws and more. First, Grutter defers to

university officials in a way that was always an unprincipled departure from this Court’s rule that the proponent

of a racial classification must prove both that it serves a

compelling state function and that no race-neutral option

is available. Second, at best, Grutter has led to confusion.

At worst, it has given a thin film of judicial respectability

to “patently unconstitutional” practices that “amount to

outright racial balancing.” Fisher II, 570 U.S. at 311.

Third, this Court severely undercut Grutter’s key premise that a State has a compelling interest in promoting

the educational benefits that many associate with “diversity.” Parents Involved in Cmty. Schs. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701, 732 (2007). Fourth, there are

no significant reliance interests implicated. Grutter was

always intended to be a temporary measure, and its selfimposed lifespan has almost expired. Meanwhile, the

interim experience has demonstrated that universities

can survive—indeed, thrive—without racially profiling

their applicants.

ARGU ME N T

I. Grutter Was an Unprincipled Departure from

this Court’s Rule that Racial Preferences Are

Unacceptable.

Grutter was not merely wrong the day it was decided;

it placed this Court’s imprimatur on state-imposed and

state-funded race discrimination. 539 U.S. at 378

(Thomas, J., dissenting). It permitted racial balancing,

id. at 385-86 (Rehnquist, C.J., dissenting), to further an

interest that the perpetrators have not been able to

clearly articulate in two decades, see Fisher v. Univ. of

Tex., 136 S. Ct. 2198, 2222-24 (2016) (Fisher IV) (Alito,

J., dissenting). That amorphous interest in “diversity” is

not considered “compelling” in any other context, and it

should not be here.

A. This Court has recognized in every context

save higher-education admissions that the

Constitution forbids racial discrimination.

1. Until 2003, this Court consistently held that

“[r]acial discrimination [is] invidious in all contexts.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619

(1991). For decades, the Court stressed that racial preferences are “by their very nature odious to a free people.” Rice v. Cayetano, 528 U.S. 495, 517 (2000). They are

“contrary to our traditions and hence constitutionally

suspect.” Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

This suspicion did not “depen[d] on the race of those

burdened or benefited by a particular classification.”

Gratz, 539 U.S. at 270. Though the Fourteenth Amendment was indisputably passed to ensure full legal

equality for African-Americans in the wake of the Civil

War, Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019),

it is well established that “any person, of whatever race,

has the right to demand that any governmental actor

subject to the Constitution justify any classification subjecting that person to unequal treatment.” Gratz, 539

U.S. at 270.

And the analysis did not depend on whether proponents considered the discrimination “benign.” Indeed,

“‘benign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro

Broad., Inc. v. FCC, 497 U.S. 547, 610 (1990) (O’Connor,

J., dissenting); see Parents Involved, 551 U.S. at 742.

Race therefore “seldom provide[s] a relevant basis

for disparate treatment.” Croson, 488 U.S. at 505. Instead, “[p]urchased at the price of immeasurable human

suffering,” the Equal Protection Clause and Title VI “reflect[] our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” Adarand Constructors, Inc. v.

Peña, 515 U.S. 200, 240 (1995) (Thomas, J., concurring).

That is, “the Fifth and Fourteenth Amendments to the

Constitution protect persons, not groups.” Id. at 227

(majority op.). The existence of preferences creates a

“stigma” towards the preferred class, which “unfairly

marks those . . . who would succeed without discrimination.” Grutter, 539 U.S. at 373 (Thomas, J., dissenting).

As a result, even the most nominally benign racial classification “demeans us all.” Id. at 353. And until 2003, all

distinctions based on race were subjected to the “most

rigid scrutiny.” Loving v. Virginia, 388 U.S. 1, 11 (1967).

2. Even now, outside the university-admissions

context, “[i]t is well established that when the

government distributes burdens or benefits on the basis

of individual racial classifications, that action is reviewed

under strict scrutiny.” Parents Involved, 551 U.S. at 720.

The proponent of a racial classification must prove “that

the reasons for any [racial] classification [are] clearly

identified and unquestionably legitimate.” Fisher II, 570

U.S. at 310. Generally, there is only one constitutionally

viable reason for state-sponsored racial classifications:

remedying past acts of de jure segregation. See Croson,

488 U.S. at 500. Protecting the best interest of a child is

insufficient. Palmore v. Sidoti, 466 U.S. 429, 433 (1984).

Even remedying de facto discrimination will not do,

absent past de jure segregation. Shaw v. Hunt, 517 U.S.

899, 909 (1996). Outside higher education, this Court has

taken the view that the best “way to stop discrimination

on the basis of race is to stop discriminating on the basis

of race.” Parents Involved, 551 U.S. at 748.

3. Until Grutter, the Court also required the proponent of racial stereotyping to have a “strong basis in evidence for its conclusion that remedial action [is] necessary.” Id. at 754. Specifically, this Court held that the

governmental entity who sought to use a racial distinction must show that “the means chosen to accomplish the

State’s asserted purpose [is] specifically and narrowly

framed to accomplish [the specified] purpose.” Wygant

v. Jackson Bd. of Educ., 476 U.S. 267, 280 (1986). To be

narrowly tailored, “the classification at issue must ‘fit’

with greater precision than any alternative means.” Id.

at 280 n.6; accord Milliken v. Bradley, 433 U.S. 267, 28081 (1977). That is, the Constitution “forbids the use even

of narrowly drawn racial classifications except as a last

resort.” Croson, 488 U.S. at 519 (Kennedy, J., concurring).

B. Higher-education admissions is the only

context

where

party

accused

discrimination may determine whether

discrimination is necessary.

Grutter represents a stark departure from this

Court’s long-held skepticism toward policies that racially

discriminate. Though purporting to apply strict scrutiny,

Grutter departed from prior precedent in three ways:

(1) distinguishing between so-called benign and malicious discrimination; (2) accepting a justification for racial discrimination untethered to curing past de jure discrimination; and (3) deferring to the perpetrator’s determination that the discrimination is necessary to serve the

nominally benign goal.

1. As an initial matter, Grutter was the first time the

Court countenanced the concept of “benign” racial discrimination, allowing universities to consider race in admissions so long as race was a “plus” factor in an admissions file. Grutter, 539 U.S. at 334. Such an admissions

policy constitutes overt racial discrimination: Universities have only so many beds in their dormitories and

seats in their classrooms. See Pet. App. 66. Giving an advantage to one applicant based on skin color necessarily

disadvantages all other applicants. Cf. id. at 133 (describing Harvard’s “lop process”).

Harvard’s racial preferences are currently designed

to benefit traditionally underrepresented minority populations. E.g., id. at 68-69. But the same arguments that

“racial discrimination may produce educational benefits”

were made to justify segregation in the era before

Brown. Fisher IV, 136 S. Ct. at 2215 (Thomas, J., dissenting). This Court rejected these arguments when

they were used to benefit Caucasians. Id. And it has rejected similar justifications for discrimination when it

has been designed to benefit racial minorities in other

contexts. Croson, 488 U.S. at 501.

2. Grutter was also the first time that the Court concluded that the “educational benefits that flow from a diverse student body” represent a compelling state interest, even without evidence of past de jure discrimination.

539 U.S. at 317-19. This was an abrupt break given that

the Court had explicitly rejected a nearly identical argument to justify racial differentiation in faculty hiring.

Wygant, 476 U.S. at 275-76. Lower courts understood

this rejection in the faculty context as applying to student admissions as well. E.g., Hopwood v. Texas, 78 F.3d

932, 935-38 (5th Cir. 1996). Since Grutter, this Court has

even rejected diversity as a compelling state interest in

assigning students to elementary and secondary schools.

Infra at 20-21. College admissions departments stand

alone.

Grutter never provided a principled reason for why

diversity is sufficiently compelling in higher-education

admissions but nowhere else. As Justice Scalia noted in

his separate opinion in Grutter, universities seek to promote “cross-racial understanding and better preparation

of students for an increasingly diverse workforce and society.” 539 U.S. at 347 (cleaned up). Nothing about these

claimed benefits is unique to collegiate lecture halls—yet

this Court has never extended Grutter to other contexts.

Instead, the Grutter majority pointed to Justice Powell’s solo opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Grutter relied on Justice Powell’s observation that “academic freedom . . .

long has been viewed as a special concern of the First

Amendment.” 539 U.S. at 324 (quoting Bakke, 438 U.S.

at 312 (opinion of Powell, J.)). Grutter, however, left out

an important part of Justice Powell’s statement: a recognition that this academic freedom is “not a specifically

enumerated constitutional right.” Bakke, 438 U.S. at 312.

“[E]qual protection of the laws” is. U.S. CONST. amend.

XIV. The right to bring a lawsuit is generally understood

to fall within the First Amendment’s Petition Clause,

Borough of Duryea v. Guarnieri, 564 U.S. 379, 386

(2011), but no one would imagine that a State could racially discriminate among whom it allows to sue in its

courts. Cf. Shelley v. Kraemer, 334 U.S. 1, 12-14 (1948).

Discrimination in the name of “academic freedom” fares

no better. Grutter, 539 U.S. at 362-64 (Thomas, J., dissenting).

Indeed, the very justifications for “diversity” require

invidious racial stereotyping. Proponents have admitted

that affirmative-action policies like those in this case are

an exercise in “social engineering.” Fisher IV, 136 S. Ct.

at 2220 (Alito, J., dissenting) (quoting Bill Powers, Op.

Ed.: Why Schools Still Need Affirmative Action, NAT’L

L.J., at 22 (Aug. 4, 2014)). In Bakke, Justice Powell described it somewhat differently: By ensuring that students have different backgrounds, a university promotes

“the robust exchange of ideas.” 438 U.S. at 313. But this

rationalization “promotes the noxious fiction” that a person’s skin color is a proxy for personal experience.

Schuette v. BAMN, 572 U.S. 291, 324 (2014) (Scalia, J.,

concurring). Outside the higher-education context, the

Court has stated that it cannot “accept as a defense to

racial discrimination the very stereotype the law condemns.” Powers v. Ohio, 499 U.S. 400, 410 (1991).

3. Finally, Grutter represents the only time in this

Court’s history that it has deferred to an actor engaged

in race discrimination regarding whether race

discrimination is justified. Ordinarily, this Court has required the proponent of the law to prove that racial discrimination is necessary. Croson, 488 U.S. at 500.

Grutter requires no such thing. It takes at face value

the testimony of various university witnesses that “a critical mass of underrepresented minority students would

[need to] be reached” in order “to realize the educational

benefits of a diverse student body.” 539 U.S. at 318. The

term, however, “lacks a substantive, clearly defined

meaning,” and “means different things to different people.” Trina Jones, The Diversity Rationale: A Problematic Solution, 1 STAN. J. C.R. & C.L. 171, 176 (2005).

As a result, Grutter applied a supposed “tradition of

giving a degree of deference to a university’s academic

decisions” to acquiesce in the university’s self-serving

conclusion that its racial policies serve its ill-defined

goal. 539 U.S. at 328. That is an unprecedented level of

deference to the very actors accused of racial discrimination. Fisher IV, 136 S. Ct. at 2222 (Alito, J., dissenting).

Indeed, Grutter’s contentless test for what constitutes a

“critical mass” has been intensely criticized not just by

members of this Court, cf. Parents Involved, 551 U.S. at

735, but by commentators on both sides of the affirmative-action debate, e.g., Mark T. Terrell, Bucking Grutter: Why Critical Mass Should Be Thrown Off the Affirmative-Action Horse, 16 TEX. J. C.L. & C.R. 233, 251

& n.152 (2011) (discussing criticism by Brian N. Lizotte,

The Diversity Rationale: Unprovable, Uncompelling, 11

MICH. J. RACE & L. 625, 650 (2006)).

At bottom, “diversity” is insufficiently defined to constitute a compelling state interest to satisfy the Equal

Protection Clause. And if diversity is pursued merely to

engage in racial balancing for its own sake, then it is not

even a legitimate one. This Court has stated that “[t]he

higher education dynamic” is not supposed to “change

the narrow tailoring analysis of strict scrutiny applicable

in other contexts.” Fisher II, 570 U.S. at 314. But even

members of the Grutter majority admit that it applies a

“standard of review that is not ‘strict’ in the traditional

sense of that word.” Parents Involved, 551 U.S. at 837

(Breyer, J., dissenting). This paradox has never been explained because it is inexplicable—at least based on any

legal doctrine.

II. Experience Demonstrates That the Grutter

Standard Is Unworkable.

The last eighteen years have shown that Grutter cannot be applied with any sort of consistency—either by

this Court or by universities. Since it was decided, this

Court has had to assess how to apply Grutter’s logic in at

least three major opinions. Two of these opinions either

cut back (Fisher II) or cut off (Parents Involved) Grutter. The third (Fisher IV) applied Grutter wholesale. The

result is a muddle that only this Court can clarify.

A. Texas’s experiences with affirmative action

demonstrate that Grutter is unworkable.

Abigail Fisher brought this Court a chance to clarify

Grutter. The first time her case came before the Court,

the Court applied the ordinary equal-protection standards and concluded that the Fifth Circuit had not held

the University of Texas to its burden to show that the

manner in which it considered the race of applicants was

justified. Fisher II, 570 U.S. at 312-13. Following remand, the Court reversed course: Though it acknowledged that the record was “almost devoid of information

about the [number of] students who secured admission”

based on racial preferences, the Court nonetheless upheld the University’s overt use of race in admissions.

Fisher IV, 136 S. Ct. at 2209. Texas’s past experience

with race-based admissions practices demonstrates just

how foreign this tie-goes-to-the-government approach is

to equal-protection jurisprudence. See id. at 2215 (Alito,

J., dissenting). Moreover, it demonstrates that Grutter’s

acceptance of race preferences in admissions is self-defeating if its true goal is, as claimed, to end the need for

race-based admissions by 2028. See 539 U.S. at 343.

1. Like many other States, Texas has a troubled history with racial discrimination in higher-education admissions. In the early twentieth century, its flagship university practiced a policy of de jure segregation—a policy that led it to deny Heman Marion Sweatt, an AfricanAmerican, admission to the University of Texas School

of Law because of the color of his skin. Sweatt, 339 U.S.

at 631. Since then, Texas universities have tried several

practices to increase minority admissions—some racebased, some race-neutral. The University of Texas still

accords benefits based on an applicant’s skin color.

E.g., Fisher IV, 136 S. Ct. at 2205-06.

For years following Sweatt, the University of Texas

“considered two factors” in examining applications: an

“Academic Index” and the applicant’s race. Fisher II,

570 U.S. at 304. Though that policy was defended on

many of the same state interests promoted here, the

Fifth Circuit concluded it did not further a compelling

state interest. Hopwood, 78 F.3d at 955. Hopwood examined the University’s “segregated application evaluation

process” and “segregated waiting lists,” which were designed to help African-American and Hispanic applicants. Id. at 935-38. The Fifth Circuit held that considering an applicant’s race “for the purpose of achieving a diverse student body” did not satisfy strict scrutiny. Id. at

944. The Court’s subsequent decision in Gratz confirmed

that Hopwood was correctly decided (albeit not necessarily on the correct grounds). 539 U.S. at 245.

2. The Texas Legislature responded to Hopwood by

enacting the “Top Ten Percent Law,” which gave highschool students in Texas in the top 10% of their respective classes automatic admission to any state university.

Tex. Educ. Code § 51.803. This provided a “facially raceneutral” solution that benefited students in poorer areas,

including minority students who were “often trapped in

inferior public schools.” Fisher IV, 136 S. Ct. at 2218

(Alito, J., dissenting).

The University of Texas, which largely sets its own

admissions standards for applicants who are not automatically admitted, also substituted its sole focus on race

for considering the applicant’s “leadership and work experience, awards, extracurricular activities, community

service, and other special circumstances.” Fisher II, 570

U.S. at 304. During eight years of race-neutral admissions, the University saw the percentage of minority enrollees increase. Id. at 305. The University boasted in

2003 that it had “effectively compensated for the loss of

affirmative action.” Fisher IV, 136 S. Ct. at 2218 (Alito,

J., dissenting).

3. Then came Grutter. The University, which prided

itself on achieving greater minority attendance through

race-neutral means, immediately announced an aboutface. Id. at 2218 & n.1. The University’s President announced the day Grutter was decided that it would modify its admissions procedures: Though the Top Ten Percent Law had already achieved the same result as previous race-conscious programs, the University would once

again consider race as a “meaningful factor” in admissions. Id. at 2218-19. Though its proponents would later

claim that race was used only as a “factor of a factor of a

factor of a factor,” race was the only “holistic factor” that

the University put on the cover of every application. Id.

at 2220, 2238.

4. The cover of Abigail Fisher’s application read

“Caucasian.” Cf. id. at 2207 (majority op.). Because she

did not finish in the top 10% of her high-school class, the

University held her race against her in its admissions

process, and she sued. See id. The lower courts granted

summary judgment to the University based on Grutter’s

“deference to a university’s academic decisions.” Fisher

v. Univ. of Tex., 631 F.3d 213, 231 (5th Cir. 2011) (Fisher

I). Fisher I deferred to the University’s judgment about

how much diversity was necessary to promote the ideal

educational environment. See id. at 244-45. And, though

it found “UT’s claim . . . less convincing when viewed

against the backdrop of the Top Ten Percent Law,” it

likewise deferred to the University’s determination that

it could only obtain diversity through racial discrimination. Id. at 245.

This Court reversed on the grounds that the Fifth

Circuit had not held the University even to the strictscrutiny-lite test adopted in Grutter. Fisher II, 570 U.S.

at 313-14. It remanded to allow the Fifth Circuit to try

again. Id.

On remand, the Fifth Circuit again held in favor of

the University. Fisher v. Univ. of Tex., 758 F.3d 633, 65960 (5th Cir. 2014) (Fisher III). Judge Garza dissented on

the grounds that the Court was still taking the University’s self-assessment at face value when the law clearly

requires that “reviewing courts cannot defer to a state

actor’s argument that its consideration of race is narrowly tailored to achieve its diversity goals.” Id. at 661.

Judge Garza was right. Between Fisher II and IV,

the University proffered no evidence demonstrating

which students benefitted from its race-conscious plan

and made no attempt to more narrowly define its interest

in a “critical mass” of diversity. Fisher IV, 136 S. Ct. at

2215 (Alito, J., dissenting). The majority recognized this.

Id. at 2209. And it recognized that “[i]n an ordinary

case,” remand would have been deemed necessary to fill

“this evidentiary gap.” Id. The Court nonetheless upheld

the University’s admissions practices because of the

length of the litigation, id., often faulting Fisher for not

showing why it was impermissible for the University to

discriminate against her, id. at 2220-25 (Alito, J., dissenting). As a result, this Court blessed the University’s use

of racial preferences even absent the robust evidence

that a party engaged in racial discrimination is expected

to provide.

5. Today, the University’s admissions practices stand

as a testament to failures by this Court and lower courts

to enforce Grutter’s admonition that “race-conscious admissions policies must be limited in time.” 539 U.S. at

342-43. And while Grutter expressed the hope that “25

years from now, the use of racial preferences will no

longer be necessary to further the interest approved today,” id. at 343, the zeal with which the University of

Texas has embraced systematic racial discrimination in

admissions illustrates how elite universities will not stop

discriminating based on race without this Court’s intervention.

Since Grutter and Fisher IV, the University of Texas

has pursued a policy of racial preferences for their own

sake. Its President extolled the University’s decision to

racially discriminate the day Grutter was decided.

Fisher IV, 136 S. Ct. at 2218-19 (Alito, J., dissenting).

Thirteen years later, just after Fisher IV, its President

showed no greater reluctance, announcing that “race

continues to matter in American life,” and that this Court

“affirm[ed] the [U]niversity’s right to continue using

race and ethnicity” in its admissions process. 3 Far from

desiring to end racial preferences, the University says

that this policy is “central” to its “constitutional mandate

to serve the state of Texas.” 4

Since Fisher IV, most African-American and Hispanic students admitted to the University of Texas are

admitted through the Top Ten Percent Law. 5 And even

with racial preferences, an average of 4.5% of each enrolling class has been African-American in the interim

years—the exact same proportion of African-American

students that enrolled in the University during the fall of

2004, the last admissions cycle governed by a race-neutral scheme. 6 Increased enrollment of Asian-American

and Hispanic students at the University is traceable to

the passage of the Top Ten Percent Law. 7 Almost two

decades of racial discrimination have garnered the

Press Release, UT NEWS, University of Texas at Austin President Responds to Supreme Court Ruling (June 23, 2016), https://tinyurl.com/9jkux5u5.

Press Release, UT NEWS, Statement on Admissions Policies

(July 3, 2018), https://tinyurl.com/3p296ck8.

Report on the Implementation of SB 175, 81st Legislature, for

the period ending Fall 2020, University of Texas at Austin, at 35,

https://tinyurl.com/d8jve84k; Report on the Implementation of SB

175, 81st Legislature, for the period ending Fall 2018, University of

Texas at Austin, at 33, https://tinyurl.com/yynzcf95; see Fisher IV,

136 S. Ct. at 2218 (Alito, J., dissenting).

2020-21 Statistical Handbook, UNIVERSITY OF TEXAS INSTITUTIONAL REPORTING, RESEARCH, AND INFORMATION STUDIES, at

24, https://tinyurl.com/622shuuv.

Id.

University of Texas nothing, while disadvantaging

countless young adults based on the color of their skin.

This stands in sharp contrast to the law school in

Grutter, which wanted nothing more “than to find a raceneutral admissions formula.” 539 U.S. at 343. And it

stands in sharp contrast to the experience of other universities that have moved away from race preferences in

admissions. For example, the University of California at

Berkeley Law School (Boalt Hall) is forbidden by law

from considering race in admissions but has maintained

both its prestige and its diversity. Id. at 367 (Thomas, J.,

dissenting). Similarly, Texas A&M University “sparked

outrage” when, notwithstanding Grutter, it maintained

race-blind admissions policies. Matthew Watkins &

Neena Satija, At A&M, Diversity Increases Without Affirmative Action, THE TEXAS TRIBUNE (June 19, 2016),

https://tinyurl.com/58nrzf3w. But, twelve years later, its

enrollment of African-American and Hispanic students

had increased by 114%, far more than the increase seen

by the University of Texas during the same period. Id.

As Texas A&M’s experience shows, universities do

not need to consider race to promote minority admissions, which can rise without racial discrimination. See

Fisher II, 570 U.S. at 305. But that is not enough for

some. Instead, elite American universities consider race

because they want to. See Grutter, 539 U.S. at 360

(Thomas, J., dissenting). And they have given no indication that they intend to stop doing so when Grutter’s

twenty-five-year clock runs—or ever. This Court should

end its failed experiment in permitting universities to racially discriminate.

B. The experience of petitioner’s members

further

demonstrates

the

theoretical

problems behind Grutter.

The record here similarly reflects that Harvard considers race in its application process because it wants to.

Doing so allows Harvard to maintain a preferred racial

composition. Because Harvard is a private institution, it

is not directly subject to the strictures of the Equal Protection Clause. The Civil Rights Cases, 109 U.S. 3 (1883).

But as long as it accepts federal funds, it is subject to the

same standard. Gratz, 539 U.S. at 276 n.23. Harvard has

failed to meet its “continuing obligation to satisfy the

burden of strict scrutiny” and to reassess the legality and

“efficacy” of its race-conscious admissions scheme.

Fisher IV, 136 S. Ct. at 2209-10.

First, Harvard has violated Grutter’s fundamental

premise that reliance on diversity cannot be a code word

“to assure some specified percentage of a particular

group merely because of its race.” Grutter, 539 U.S. at

308. This Court “ha[s] many times over reaffirmed that

‘[r]acial balance is not to be achieved for its own sake.’”

Parents Involved, 551 U.S. at 729-30. Grutter endorsed

the so-called “Harvard plan” of admissions because it assumed that Harvard’s system was “flexible enough to

consider all pertinent elements of diversity,” including

socioeconomic status, family circumstances, and other

personal experiences. 539 U.S. at 309.

That assumption has proven incorrect. As petitioner

shows, Harvard will only consider race-neutral admissions policies if they would not result in “any decline” in

African-American or Hispanic representation from current levels, Pet. App. 77 n.32; id. at 209—functionally

creating a quota. See Pet. 40 (citing JA.4435). The result

is that all racial groups stay within narrow bands of

admissions rates to yield Harvard’s preferred racial mix.

Id.

The way that Harvard has structured its racial preferences reflects a form of stereotyping that is inconsistent with both its own rationale and the theory behind

Grutter. The term “Asian” itself reflects a stereotype,

lumping “roughly 60% of the world’s population” into one

group. Fisher IV, 136 S. Ct. at 2229 (Alito, J., dissenting).

Many in this group, like Harvard’s preferred groups, are

and have been subject to considerable racial discrimination and economic hardship. 8

Yet Harvard has designed its system to harm AsianAmericans in order to help other minorities. For example, petitioner cites evidence that an Asian-American applicant in the top decile of Harvard’s academic index is

admitted less often (12.7%) than an African-American

applicant in the fourth-lowest decile (12.8%). Pet. 11.

Second, the record demonstrates that Harvard’s system is not narrowly tailored to ensure that “race-conscious admissions programs have a termination point.”

Grutter, 539 U.S. at 342. The lower courts concluded that

Harvard had satisfied this requirement because it has

conducted periodic reviews and determined that raceneutral means do not ensure Harvard’s diversity goals.

Pet. App. 46-47, 73-79. But Harvard has set narrow

bands for what it views as an acceptable racial mix in its

student population. In other words, Harvard’s interest in

maintaining a specific racial balance cannot be satisfied

by anything but rigorous racial balancing. This system

may be a clever work-around, but it is not narrow

See Hua Hsu, The Muddled History of Anti-Asian Violence,

THE NEW YORKER (Feb. 28, 2021), https://tinyurl.com/ra9zamns.

tailoring, let alone an approach designed to end racial

discrimination in the future.

More fundamentally, each of these periodic reviews

assumed that Harvard should not be required to change

other aspects of its admissions policies. Pet. App. 73-79.

This permissive view of narrow tailoring is fundamentally inconsistent with the view that racial classifications

are a “last resort.” Croson, 488 U.S. at 519 (Kennedy, J.,

concurring). For example, petitioner offered expert evidence that eliminating a preference for legacy admissions would increase diversity. Pet. 43. Yet Harvard insists that it cannot do so because it would “adversely affect Harvard’s ability to attract top quality faculty and

staff and to achieve desired benefits from relationships

with its alumni.” Pet. App. 76. But the potential to upset

certain members of the community has consistently (and

correctly) been rejected as a compelling interest

throughout this Court’s jurisprudence. E.g., Griffin v.

Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218 (1964).

Put another way, Harvard may adopt admissions policies that might adversely impact certain minority

groups—e.g., preferring legacy admissions. But, outside

Grutter, Harvard could not avail itself of the last resort

of racial discrimination without first giving up other

things it likes, too. Elite universities’ unwillingness to

adapt other admissions policies to reduce reliance on

race further underscores that Grutter cannot be salvaged.

III. This Court Has Undermined

Subsequent Case Law.

Grutter

In addition to proving unworkable, Grutter cannot be

squared with this Court’s subsequent decision in Parents

Involved, 551 U.S. 701. That case involved whether

“race-based assignments were permissible at the

elementary and secondary level” following Grutter. Id.

at 724. Observing that “[c]ontext matters,” the Court

concluded that they were not, thus limiting Grutter to its

post-secondary-education context. Id. at 724-25. Outside

that context, the Court explained, “[r]acial balancing is

not transformed from ‘patently unconstitutional’ to a

compelling state interest simply by relabeling it ‘racial

diversity.’” Id. at 732.

Though Grutter did say it depended on the highereducation context, the distinction makes no sense. Grutter is based on a State’s supposedly compelling interest

in promoting the educational benefits of diversity, which

“prepar[es] students for work and citizenship” in a diverse society. 539 U.S. at 331. But “essentially the same

lesson [is] taught to (or rather learned by, for it cannot

be ‘taught’ in the usual sense) people three feet shorter

and 20 years younger than the full-grown adults” at issue

in Grutter. Id. at 347 (Scalia, J., dissenting). There is no

doctrinal reason why a State has a compelling interest in

preparing eighteen-year-olds privileged enough to go to

universities for work but not fourteen-year-olds. Yet that

is what this Court’s cases claim to hold.

It is difficult to predict every way in which Grutter

may be invoked, but it continues to be applied on a daily

basis at universities across the country. This Court

should grant review in this case, reverse the lower

courts’ decisions, and hold institutions of higher education to the same requirements of racial neutrality as

other institutions.

IV. Purported Reliance Interests Are No Basis to

Retain Grutter.

Finally, university admissions is not a circumstance

where correcting an anomaly in this Court’s equal-protection jurisprudence would “unduly upset reliance

interests.” Ramos v. Louisiana, 140 S. Ct. 1390, 1415

(2020) (Kavanaugh, J., concurring in part). Grutter was

written to avoid engendering significant reliance concerns. It stated that “deviation from the norm of equal

treatment of all racial and ethnic groups is a temporary

matter, a measure taken in service of the goal of equality

itself.” 539 U.S. at 342. Noting that it “ha[d] been 25

years since Justice Powell first approved the use of race

to further an interest in student body diversity,” it anticipated that in an additional 25 years, “the use of racial

preferences will no longer be necessary.” Id. at 343.

Eighteen years have lapsed since Grutter and Gratz—

enough time for the children of the plaintiffs denied admission to the University of Michigan and its law school

to apply to those schools. Anyone who assumed that

Grutter would operate indefinitely did so at his own peril.

Nor would that reliance be legitimate even without

Grutter’s expiration date. Any governmental preference

based on race is “odious to a free people,” Cayetano, 528

U.S. at 517, and betrays the very foundations of our Constitution’s guarantee of equal protection, Miller v. Johnson, 515 U.S. 900, 911 (1995). And the experience of

prominent universities like Berkeley and Texas A&M

demonstrate that race preferences are not necessary.

The Court should not wait for the court of history to

overrule Grutter.

C O NC LU SIO N

The petition for a writ of certiorari should be granted.

Respectfully submitted.