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

i

No. 20-1199

In the

Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

v.

PRESIDENT AND

FELLOWS OF HARVARD COLLEGE,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the First Circuit

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION,

REASON FOUNDATION, CENTER FOR

EQUAL OPPORTUNITY, INDIVIDUAL

RIGHTS FOUNDATION, CHINESE AMERICAN

CITIZENS ALLIANCE - GREATER NEW YORK,

COALITION FOR TJ, AND YI FANG CHEN

IN SUPPORT OF PETITIONER

JOSHUA P. THOMPSON

WENCONG FA*

*Counsel of Record

ALISON E. SOMIN

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Email: WFa@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation, Reason

Foundation, Center for Equal Opportunity, Individual

Rights Foundation, Chinese American Citizens Alliance

- Greater New York, Coalition for TJ, and Yi Fang Chen

i

QUESTIONS PRESENTED

1. Should this Court overrule Grutter v. Bollinger,

539 U.S. 306 (2003), and hold that institutions of

higher education cannot use race as a factor in

admissions?

2. Title VI of the Civil Rights Act bans race-based

admissions that, if done by a public university, would

violate the Equal Protection Clause. Gratz v.

Bollinger, 539 U.S. 244, 276 n.23 (2003). Is Harvard

violating Title VI by penalizing Asian-American

applicants,

engaging

in

racial

balancing,

overemphasizing race, and rejecting workable raceneutral alternatives?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

TABLE OF CONTENTS ............................................ ii

TABLE OF AUTHORITIES ...................................... iii

IDENTITY AND INTEREST

OF AMICUS CURIAE.................................................1

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION ...................4

REASONS TO GRANT THE PETITION ...................7

I. Grutter Should Be Overruled

Because It Is Grievously Wrong ............................7

A. There Is No Higher Education

Exception to Equality Under the Law .............7

B. The Diversity Rationale Relies

Upon Arbitrary Racial Classifications .............9

C. The Diversity Rationale Routinely

Discriminates Against Asian Americans .......12

1. Racial Classifications

Perpetuate Harmful Stereotypes..............12

2. Racial Classifications Exacerbate

a Long and Sordid History of

Discrimination Against Asians .................15

II. Grutter Should Be Overruled

Because It Is Unworkable ...................................17

CONCLUSION ..........................................................21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ........................................ 1, 4, 7

Brown v. Bd. of Educ. of Topeka,

Shawnee Cty., Kan., 347 U.S. 483

(1954) ................................................................ 8, 16

Christa McAuliffe Intermediate School PTO,

Inc., et al. v. De Blasio, et al.,

1:18-cv-11657 (S.D.N.Y. filed Dec. 13, 2018) ........ 3

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

488 U.S. 469 (1989) .......................................... 1, 16

Coalition for TJ v. Fairfax Cty. Sch. Bd., et al.,

1:21-cv- 00296 (E.D. Va. filed Mar. 10, 2021) ....... 4

Fisher v. Univ. of Texas at Austin,

136 S. Ct. 2198 (2016) (Fisher II) ...................... 1, 3

Fisher v. Univ. of Texas at Austin,

570 U.S. 297 (2013) (Fisher I)............................ 1, 3

Gong Lum v. Rice, 275 U.S. 78 (1927) ...................... 16

Gratz v. Bollinger, 539 U.S. 244 (2003) .................. 1, 5

Grutter v. Bollinger, 539 U.S. 306 (2003) ......... passim

Knick v. Twp. of Scott, 139 S. Ct. 2162 (2019) ........... 9

iv

League of United Latin Am. Citizens v.

Perry, 548 U.S. 399 (2006) ................................... 12

Metro Broadcasting, Inc. v. FCC,

497 U.S. 547 (1990) .............................................. 16

Miller v. Johnson, 515 U.S. 900 (1995) ...............10-12

Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1,

551 U.S. 701 (2007) ................................. 1-2, 10, 20

People v. Hall, 4 Cal. 399 (Cal. 1854) ....................... 16

Plessy v. Ferguson, 163 U.S. 537 (1896) ................... 16

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) .................................5, 17-18

Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ................................................ 1

Ricci v. DeStefano, 557 U.S. 557 (2009) ..................2-3

Rice v. Cayetano, 528 U.S. 495 (2000) ........................ 7

Taxman v. Bd. of Educ. of Twp. of Piscataway,

91 F.3d 1547 (3d Cir. 1996) ................................... 9

Statutes

1913 Cal. Stat. 113 .................................................... 15

Chinese Exclusion Act, Law of May 6, 1882,

Ch. 126, 22 Stat. 58 (repealed 1943) ................... 15

v

Immigration Act of 1924, Ch. 190, 43

Stat. 153 (repealed 1952) ..................................... 15

42 U.S.C. § 2000d .................................................... 4, 7

Court Rules

Sup. Ct. R. 37.2(a) ....................................................... 1

Sup. Ct. R. 37.6 ............................................................ 1

Constitution

U.S. Const. amend. XIV, cl. 1 ..............................4-5, 7

Miscellaneous

2 Cong. Rec. 4083 (1874) ............................................. 7

Arcidiacono, Peter, et al., A Conversation

on the Nature, Effects, and Future of

Affirmative Action in Higher Education

Admissions, 17 U. Pa. J. Const. L. 683

(Feb. 2015) ............................................................ 13

Bernstein, David E., The Modern

American Law of Race (May 2020),

bit.ly/3nBMhhL ...................................................... 6

Cole, Stephen & Barber, Elinor,

Increasing Faculty Diversity: The

Occupational Choices of HighAchieving Students (2003) ................................... 18

vi

Elliott, Rogers, et al., The Role of

Ethnicity in Choosing and Leaving

Science in Highly Selective

Admissions, 37 Res. Higher. Ed. 681

(1996) .................................................................... 18

Exec. Order No. 589 (1907) ....................................... 15

Fa, Wencong, The Trouble with Racial

Quotas in Disparate Impact

Remedial Orders, 24 WM. & Mary

Bill Rts. J. 1169 (2016) ........................................ 20

Nagai, Althea, Campus Diversity and

Student Discontent: The Cost of Race

and Ethnic Preferences in College

Admissions, Center for Equal

Opportunity, Jan. 27, 2021,

http://gator4245.temp.domains/~ceou

sa40/wp-content/uploads/2021/01/

Costs-of-Diversity-1-27-2021.pdf ......................... 19

Nagai, Althea, Harvard Investigates

Harvard: “Does the Admissions

Process Disadvantage Asians?,”

Center for Equal Opportunity,

Aug. 30, 2018 ........................................................ 12

Nagai, Althea, Too Many Asian

Americans: Affirmative

Discrimination in Elite College

Admissions, Center for Equal

Opportunity, May 22, 2018,

http://www.ceousa.org/attachments/a

rticle/1209/AN.Too%20Many%20Asi

anAms.Final.pdf................................................... 14

vii

Pager, Sean A., Antisubordination of

Whom? What India’s Answer Tells

Us About the Meaning of Equality in

Affirmative Action, 41 U.C. Davis L.

Rev. 289 (Nov. 2007) ............................................ 11

Princeton Review, Cracking College

Admissions (2d ed. 2004) ................................13-14

Sander, Richard H., A Systemic Analysis

of Affirmative Action in Law Schools,

57 Stan L. Rev. 367 (2004)................................... 19

Smyth, Frederick L. & McArdle, John J.,

Ethnic and Gender Differences in Science

Graduation Rates at Selective Colleges with

Implications for Admissions Policy and

College Choice, 4 Res. Higher Educ. 353

(2004) .................................................................... 18

Wood, Peter, Diversity: The Invention of

a Concept (2003) ..................................................... 6

1

IDENTITY AND INTEREST

OF AMICI CURIAE

Founded in 1973, Pacific Legal Foundation (PLF)

is a nonprofit legal foundation that defends the

principles of liberty and limited government,

including equality before the law. 1 For over 40 years,

PLF has litigated in support of the rights of

individuals to be free of racial discrimination. PLF is

currently litigating to vindicate the equal protection

rights of children in Connecticut and New York. PLF

has also participated as amicus curiae in nearly every

major Supreme Court case involving racial

classifications in the past three decades, including

Fisher v. Univ. of Texas at Austin, 570 U.S. 297 (2013)

(Fisher I); Fisher v. Univ. of Texas at Austin, 136 S.

Ct. 2198 (2016) (Fisher II); Parents Involved in Cmty.

Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007);

Gratz v. Bollinger, 539 U.S. 244 (2003); Adarand

Constructors, Inc. v. Pena, 515 U.S. 200 (1995); City of

Richmond v. J.A. Croson Co., 488 U.S. 469 (1989); and

Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265

(1978).

The Center for Equal Opportunity (CEO) is a

research and education organization formed pursuant

to Section 501(c)(3) of the Internal Revenue Code and

1 Pursuant to Rule 37.2(a), all parties have consented to the filing

of this brief. All parties received notice of Amici Curiae’s intent

to file this brief at least 10 days prior to the due date. Pursuant

to Rule 37.6, Amici Curiae affirm that no counsel for any party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than Amici Curiae,

their members, or their counsel made a monetary contribution to

its preparation or submission.

2

devoted to issues of race and ethnicity. Its

fundamental vision is straightforward: America has

always been a multiethnic and multiracial nation, and

it is becoming even more so. This makes it imperative

that our national policies do not divide our people

according to skin color and national origin. Rather,

these policies should emphasize and nurture the

principles that unify us. E pluribus unum: out of

many, one. CEO supports colorblind policies and

seeks to block the expansion of racial preferences in

all areas. CEO has participated as amicus curiae in

numerous cases relevant to the analysis of this case.

See Ricci v. DeStefano, 557 U.S. 557 (2009); Parents

Involved, 551 U.S. 701; Grutter v. Bollinger, 539 U.S.

306 (2003).

Reason Foundation (Reason) is a national,

nonpartisan, and nonprofit public policy think tank,

founded in 1978. Reason’s mission is to advance a free

society by applying and promoting libertarian

principles and policies—including free markets,

individual liberty, and the rule of law. Reason

supports dynamic market-based public policies that

allow and encourage individuals and voluntary

institutions to flourish. Reason advances its mission

by publishing Reason magazine, as well as

commentary on its websites, and by issuing policy

research reports. To further Reason’s commitment to

“Free Minds and Free Markets” and equality before

the law, Reason selectively participates as amicus

curiae in cases raising significant constitutional

issues.

The Individual Rights Foundation (IRF) was

founded in 1993 and is the legal arm of the David

3

Horowitz Freedom Center. The IRF is dedicated to

supporting free speech, associational rights, and

equality of rights. To further these goals, the IRF has

filed amicus curiae briefs in cases involving

fundamental equal protection issues, including Fisher

I, 570 U.S. at 297; Fisher II, 136 S. Ct. at 2198; Ricci,

557 U.S. at 557, and Grutter, 539 U.S. at 306.

The Chinese American Citizens Alliance–Greater

New York (CACAGNY) is a chapter of the Chinese

American Citizens Alliance, the oldest Asian

American Advocacy group in the country.

CACAGNY’s mission is to empower Chinese

Americans, as citizens of the United States of

America, by advocating for Chinese-American

interests based on the principles of fairness and equal

opportunity, and guided by the ideals of patriotism,

civility, dedication to family and culture, and the

highest ethical and moral standards.

Yi Fang Chen is a mother of a third grader at P.S.

102 in Brooklyn. Ms. Chen was born in China and

moved to the United States in 1996. Although she

came to this country speaking little English, she

eventually obtained a doctorate in statistics from

Stanford University, and now works as a data

scientist in Manhattan. PLF currently represents

Ms. Chen and CACAGNY in a lawsuit challenging

New York City’s discriminatory changes to its

admissions program for the City’s specialized schools.

See Christa McAuliffe Intermediate School PTO, Inc.,

et al. v. De Blasio, et al., 1:18-cv-11657 (S.D.N.Y. filed

Dec. 13, 2018).

4

The Coalition for TJ is a group of parents,

students, alumni, and community members of

Thomas Jefferson High School for Science and

Technology, known as “TJ.” The coalition’s

approximately 5,000 supporters are primarily Asian

American parents, who regularly attend and speak at

school board meetings, organize rallies, engage

legislators, and educate their community on the value

of merit-based admissions for specialized schools like

TJ. PLF currently represents the Coalition for TJ in

its challenge to Fairfax County’s discriminatory

changes to its admissions policy for Thomas Jefferson

High School for Science and Technology. See Coalition

for TJ v. Fairfax Cty. Sch. Bd., et al., 1:21-cv-00296

(E.D. Va. filed Mar. 10, 2021).

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

“In the eyes of government, we are just one race

here. It is American.” Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).

Both the Constitution and the Civil Rights Act of 1964

enshrines the important principle that we are equal

under the law. The Equal Protection Clause prohibits

the government from denying “any person . . . the

equal protection of the laws.” U.S. Const. amend. XIV,

cl. 1. Title VI extends that prohibition to private

universities that receive federal financial assistance.

See 42 U.S.C. § 2000d (“No person in the United

States shall, on the ground of race . . . be subjected to

discrimination under any program or activity

receiving Federal financial assistance.”).

5

Harvard receives federal funds, Pet. App. 235, but

it does not comply with the antidiscrimination

mandate of Title VI. Harvard “intentionally provides

tips in its admissions process based on students’ race,”

id., and “its admissions officers may take an

applicant’s race into account when making an

admissions decision even when the applicant has not

discussed their racial or ethnic identity in their

application.” Id. at 236. Under a race-neutral

admissions program, Asian Americans would make

up 27 percent of Harvard’s incoming class. Id. at 69

n.29. But Harvard’s racial preferences push that

number down to 24 percent. Id.

Title VI’s protections are coextensive with the

Equal Protection Clause of the Fourteenth

Amendment. Gratz v. Bollinger, 539 U.S. 244, 276

n.23 (2003). Neither the Constitution nor Title VI

countenances racial preferences in admissions

decisions. The First Circuit’s decision to the contrary

rested upon an outlier in this Court’s equal protection

jurisprudence: Grutter v. Bollinger, 539 U.S. 306

(2003). The First Circuit invoked Grutter repeatedly

throughout its opinion, and concluded that “Harvard’s

limited use of race in its admissions process in order

to achieve diversity” was consistent with this Court’s

precedents. Pet. App. 98.

Grutter should be overruled. From the day on

which it was decided, Grutter has been “grievously

wrong.” Ramos v. Louisiana, 140 S. Ct. 1390, 1414–15

(2020) (Kavanaugh, J., concurring in part). The Equal

Protection Clause contains a categorical statement: no

state “shall . . . deny to any person within its

jurisdiction the equal protection of the laws.” U.S.

6

Const. amend. XIV, cl. 1. Yet the thrust of Grutter is

that “not every decision influenced by race is equally

objectionable.” 539 U.S. at 327. As a result, Grutter

announced a compelling interest in furthering

diversity in the limited context of higher education.

See id. at 328–30.

This diversity rationale is unsound. It rests upon

arbitrary racial classifications. The term “Hispanic,”

for instance, does not describe a common background,

designate a common language, or even describe gross

physical appearance. See Peter Wood, Diversity: The

Invention of a Concept 25 (2003). And “Asians” make

up roughly 60 percent of the world’s population and

encompass people of Chinese, Indian, Filipino, and

many more backgrounds. David E. Bernstein, The

Modern American Law of Race 9–10 (May 2020). 2

Although state-sponsored treatment of individuals as

members of arbitrary racial groups is reason enough

to overrule Grutter, the decision’s practical effects

provides added cause for pause. Grutter’s diversity

rationale perpetuates harmful stereotypes against

Asian applicants and exacerbates a long and sordid

history of discrimination against Asians in the United

States. Grutter is also unworkable. As the record in

this case illustrates, universities have treated the

decision as an unqualified endorsement of racial

preferences. Such preferences not only deny students

their right to equal justice before the law, but harm

the very students they purportedly benefit. This Court

should grant the petition, and overrule Grutter.

2 bit.ly/3nBMhhL.

7

REASONS TO GRANT THE PETITION

I. Grutter Should Be Overruled

Because It Is Grievously Wrong

A. There Is No Higher Education

Exception to Equality Under the Law

Grutter is an outlier in equal protection

jurisprudence. Both the Equal Protection Clause and

Title VI provide a categorical bar on discrimination on

the basis of race. See U.S. Const. amend. XIV, cl. 1.

(prohibiting the government from denying “any

person . . . the equal protection of the laws.”); see 42

U.S.C. § 2000d (“No person in the United States shall,

on the ground of race . . . be subjected to

discrimination under any program or activity

receiving Federal financial assistance.”). Earlier

congressional records confirm that the Fourteenth

Amendment contains an unqualified mandate: The

“abolition of all distinctions founded on color and

race.” 2 Cong. Rec. 4083 (1874). This Court has

enforced that mandate in its subsequent decisions. In

Adarand Constructors, Inc. v. Pena, this Court

explained that because racial distinctions are “odious

to a free people,” racial classifications are always

subject to strict scrutiny. 515 U.S. 200, 214 (1995).

And in Rice v. Cayetano, 528 U.S. 495, 517 (2000), this

Court observed that “race is treated as a forbidden

classification” because “it demeans the dignity and

worth of a person to be judged by ancestry instead of

by his or her own merit and essential qualities.” 528

U.S. 495, 517 (2000).

The Grutter Court fashioned a strange exception to

these important principles. It announced that the

8

Court would countenance racial discrimination if it

were narrowly tailored toward a university’s interest

in “the educational benefits that flow from a diverse

student body.” Grutter, 539 U.S. at 328. Of course, a

truly diverse student body may produce a number of

benefits. It might teach tolerance, acceptance, and

open-mindedness. But none of those purported

benefits can justify the harm of racial preferences:

racial discrimination.

Grutter’s faulty conclusion stems from faulty

premises. The Grutter Court provided two reasons for

deferring to a university’s judgment about whether

educational benefits are sufficient to justify racial

preferences. First, it did so in light of what the Court

viewed as the “important purposes of public education

and the expansive freedoms of speech and thought

associated with the university environment.” Grutter,

539 U.S. at 328–29. Second, the Court observed that a

university is typically entitled “make its own

judgments as to . . . the selection of its student body.”

Id. at 329. None of those reasons provide a basis to

carve out an exception for universities to flout

antidiscrimination

mandates.

Surely,

public

education has not become significantly more

important in the decades since Brown v. Bd. of Educ.

of Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954).

Yet that decision rejected race-based decisionmaking

in school assignments. Further, the “expansive

freedoms of speech and thought associated with the

university environment” have little to do with the

Equal Protection Clause. Freedom of speech allows

students to express their views, wise or ignorant,

about race. The Equal Protection Clause prohibits

administrators from discriminating on the basis of

9

race in college admissions. Finally, nothing in Title VI

or the Constitution cabins the substantial leeway that

universities have to craft their own admissions

policies. But both Title VI and the Constitution forbids

universities that fall under their purview from

drawing distinctions between students on the basis of

race.

Grutter remains an outcast in equal protection

jurisprudence. An analogy from employment law

elucidates this point. An employer can conjure up

some “benefits that flow from a diverse [workforce],”

just as universities can surmise educational benefits

that flow from a diverse student body. Grutter, 539

U.S. at 328. But Title VII does not allow an employer

to achieve those supposed benefits by resorting to

racial preferences. See, e.g., Taxman v. Bd. of Educ. of

Twp. of Piscataway, 91 F.3d 1547, 1557–58 (3d Cir.

1996) (en banc). And a finding that the number of

Asian American employees in the workforce “would

increase from 24% to 27%” absent an employer’s

consideration of race in hiring would undoubtedly by

an open-and-shut case under Title VII. Pet. App. 69 &

n.29. Because Grutter conflicts with this Court’s

broader equality jurisprudence, it must be overruled.

See Knick v. Twp. of Scott, 139 S. Ct. 2162, 2177

(2019).

B. The Diversity Rationale Relies

Upon Arbitrary Racial Classifications

The diversity interest put forth by universities

routinely rests on arbitrary racial classifications.

Here, Harvard admissions officers use summaries

containing demographic information throughout the

10

admissions process. Pet. App. 24. These “one-pagers”

contain racial statistics, and are “periodically shared

with the full admissions committee” in part “to ensure

that there is not a dramatic drop-off in applicants with

certain characteristics—including race—from year to

year.” Id. As is typical, the one-pager contains broad

racial categories, such as Hispanic, African American,

White, and Asian American. See Pet. App. 25.

Racial labels, whether state-mandated or statesponsored, are “inconsistent with the dignity of

individuals in our society.” Parents Involved, 551 U.S.

at 797 (Kennedy, J., concurring). That is because

racial labels require their creator to “first define what

it means to be of a race.” Id. In that process, they

impinge on the right of every individual to “find his

own identity,” and “define her own persona, without

state intervention that classifies on the basis of his

race or the color of her skin.” Id.

The racial classifications that Harvard uses in this

case are both common and crude. Members of the

same racial group may have vastly different

backgrounds, skills, and aspirations. The use of race

in admissions policies presents the risk that Harvard

evaluates applicants not as individuals but as

members of a broadly defined racial group. See Miller

v. Johnson, 515 U.S. 900, 911–12 (1995) (“Race-based

assignments embody stereotypes that treat

individuals as the product of their race, evaluating

their thoughts and efforts—their very worth as

citizens—according to a criterion barred to the

Government by history and the Constitution.”)

(internal citation and quotation marks omitted).

11

There is nothing intrinsic in these broad racial

categories that assures a commonality of experience.

See Wood, supra, at 25. As one scholar explained,

contemporary group classifications such as “black,”

“Asian,” and “Hispanic” fail to identify any common

factor inherent to individuals within those groups. Id.

The term “Hispanic,” for instance, covers people of

different backgrounds. “The Mexican Americans of

the southwest, the northeast’s Puerto Ricans, and

Florida’s Cubans had rarely thought of themselves, or

been thought of by others, as constituting a single

group until somebody decided to lump them into a

single statistical category of ‘Spanish Americans.’”

Sean A. Pager, Antisubordination of Whom? What

India’s Answer Tells Us About the Meaning of

Equality in Affirmative Action, 41 U.C. Davis L. Rev.

289, 303–04 (Nov. 2007). The same problems plague

the definition of “Asian,” which includes individuals of

Chinese, Indian, Japanese, Vietnamese, and other

origins. Id. at 305.

Amicus Coalition for TJ has experienced the effects

of crude racial lumping first-hand. The Asian

American student population at TJ comprises of

students whose families hail from thirty countries,

including India, Pakistan, South Korea, Japan,

Vietnam, China, and the Philippines. Altogether,

Asian American students make up 73% of the Class of

2024. As a result of the perceived overrepresentation

of Asian American students, the school board

implemented changes to the admissions system to

eliminate a test that the board claims “squeezed out

diversity in our system.” As a result, the Coalition of

TJ expects a sharp decline in the number of Asian

American students in future classes at TJ. See Coal.

12

for TJ, 1:21-cv-00296, Compl. ¶ 52 (projecting that

“Asian-American student enrollment at TJ will drop

from 73% under the merit-based race-blind

admissions system to 31% under the new racialbalancing admissions system for the Class of 2025”).

It is indeed a “sordid business, this divvying us by

race.” League of United Latin Am. Citizens v. Perry,

548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in

part and dissenting in part).

C. The Diversity Rationale Routinely

Discriminates Against Asian Americans

1. Racial Classifications Perpetuate

Harmful Stereotypes

“Race-based assignments embody stereotypes that

treat individuals as the product of their race.” Miller,

515 U.S. at 912 (citation omitted). This case is

illustrative. Harvard’s admission officials assigned

Asian American applicants the lowest personal

ratings—a subjective assessment of whether the

applicant has character traits such as “helpfulness,

courage, [and] kindness,” or is an “attractive person to

be with,” or is a “widely respected” person with good

“human qualities.” See Pet. App. 19, 173. 3 Yet alumni

interviewers—who actually meet the students—

assigned the same applicants significantly higher

3 Notably, Harvard’s Office of Institutional Research found that

even taking personal ratings into account, Asian American

students should have comprised 26% of students admitted to

Harvard over 10 years—higher than the 19% of Asian American

students actually admitted during that period. Althea Nagai,

Harvard Investigates Harvard: “Does the Admissions Process

Disadvantage Asians?,” Center for Equal Opportunity, Aug. 30,

2018.

13

personal ratings than the admissions officers. Pet.

App. 292. This is hardly surprising. Asian American

applicants to Harvard received not just stronger

academic scores, but also had higher extracurricular

ratings than the rest of the applicant pool. Pet. App.

172. Yet Harvard’s race-based admissions policies

have entrenched the incorrect stereotype that Asian

American students are one-dimensional and lacking

in personal attributes such as helpfulness, courage,

and kindness. 4 As one Harvard admissions officer

noted in an Asian American applicant’s file: “quiet

and of course wants to be a doctor.” Pet. App. 157.

These pernicious stereotypes extend beyond

campus. College guidebooks like the Princeton Review

advise Asian American applicants to “be careful about

what [they] say and don’t say in [their] application.”

Princeton Review, Cracking College Admissions, 174

(2d ed. 2004). Asian students who aspire to attend

Harvard are encouraged to take steps to “avoid being

an Asian Joe Bloggs.” Id. at 175. Asian American

applicants must “distance [themselves] as much as

possible from” stereotypes about Asians. Id. at 176.

The guide implores Asian American students to

disavow any aspiration of being a doctor or an

Empirical analysis from other universities further undercut

Harvard’s assertions. Professor Richard Sander’s analysis of the

publicly available data, which covers over 100,000 applicants to

University of California-Los Angeles over three years, shows

that there is essentially no correlation between race and

“personal achievement,” as measured by admissions file readers.

See Peter Arcidiacono et al., A Conversation on the Nature,

Effects, and Future of Affirmative Action in Higher Education

Admissions, 17 U. Pa. J. Const. L. 683, 695 (Feb. 2015). Instead,

the only strong predictor of personal-achievement scores in the

data was academic achievement. Id.

4

14

engineer, and to “get involved in activities other than

math club, chess club, and computer club.” Id. at 175.

The principle of equal protection before the law

embodies the promise that race will not stand in the

way between an individual and her dreams. Yet Asian

American students who want to attend Harvard are

incentivized to forgo a career in medicine, math, and

sciences—all because there happens to be “too many

Asians” in those programs. This leads to devastating

consequences. As one Chinese-American student at

Yale recounted, “I quit piano, viewing the instrument

as a totem of my race’s overeager striving in America.

I opted to spend much of my time writing plays and

film reviews—pursuits I genuinely did find rewarding

but which I also chose so I wouldn’t be pigeonholed.”

Althea Nagai, Too Many Asian Americans:

Affirmative

Discrimination

in

Elite

College

Admissions, Center for Equal Opportunity, May 22,

2018. 5

Amici have felt the sting of pernicious racial

stereotypes in school admissions. In the meetings

preceding efforts to racially balance Thomas Jefferson

High School at the expense of Asian American

students, one school board member referred to the

culture at TJ as “toxic.” See Coal. for TJ, 1:21-cv00296, Compl. ¶ 45. A Virginia state delegate, as part

of a working group to address diversity and equity,

made baseless claims of “unethical ways” Asian

American parents “push their kids into [TJ],” when

those parents are “not even going to stay in America,”

but instead are “using [TJ] to get into Ivy League

5 http://www.ceousa.org/attachments/article/1209/AN.Too%20M

any%20AsianAms.Final.pdf.

15

schools and then go back to their home country.” Id. ¶

38. CACAGNY, Yi Fang Chen, and others have had

similar experiences in New York, where Mayor de

Blasio referred to the racial composition of the

specialized high schools as a “monumental injustice.” 6

Administrators at the specialized high schools see the

matter differently. See ECF No. 414-3 at 150–55

(Stuyvesant assistant principal in tears when shown

the numbers of Asian American acceptance rates

“[b]ecause these numbers make it seem like there’s

discrimination, and I love these kids and I know how

hard they work”).

2. Racial Classifications Exacerbate

a Long and Sordid History of

Discrimination Against Asians

Harvard’s

race-based

admissions

policy

exacerbates a long history of discrimination against

Asians. American history is replete with laws banning

the entry of immigrants of Asian descent. See, e.g.,

Chinese Exclusion Act, Law of May 6, 1882, Ch. 126,

22 Stat. 58 (repealed 1943) (banning Chinese

immigration); Immigration Act of 1924, Ch. 190, 43

Stat. 153 (repealed 1952) (banning Japanese

immigration); Exec. Order No. 589 (1907) (banning

Japanese and Korean immigration). Alien land laws

in various states restricted the ability of Asian

immigrants to own property. See, e.g., 1913 Cal. Stat.

113. And the separate-but-equal doctrine routinely

Bill de Blasio, Our Specialized Schools Have a Diversity

Problem. Let’s Fix It., Chalkbeat (June 2, 2018),

https://chalkbeat.org/posts/ny/2018/06/0 2/mayor-bill-de-blasionew-york-city-will-push-for-admissions-changesat

-elite-andsegregated-specialized-high-schools/ (last visited Mar. 29, 2021).

6

16

applied to Asian students, who were forbidden from

going to “white” schools. Gong Lum v. Rice, 275 U.S.

78, 81–82 (1927).

This nation’s sad history of discrimination against

Asians is attributable to the “unthinking stereotypes”

the Supreme Court mentioned in Croson. In People v.

Hall, the California Supreme Court invalidated the

testimony of Chinese witnesses. The Chinese, the

court reasoned, were “people whom nature has

marked as inferior, and who are incapable of progress

or intellectual development beyond a certain point.” 4

Cal. 399, 404-05 (Cal. 1854). In Plessy v. Ferguson, the

Supreme

Court

infamously

upheld

the

constitutionality of racial segregation under the

“separate but equal” doctrine. 163 U.S. 537, 550-51

(1896), overruled by Brown v. Bd. of Educ. of Topeka,

Shawnee Cty., Kan., 347 U.S. 483, 494-95 (1954). Yet

even Justice Harlan’s much-celebrated dissent in that

case contained his unfortunate views that Asians

were “a race so different from our own that we do not

permit those belonging to it to become citizens of the

United States.” Plessy, 163 U.S. at 561 (Harlan, J.,

dissenting).

In all, Harvard’s use of race in admissions,

whether out of desire to promote diversity or to

remedy past discrimination, continues a long history

of past discrimination against Asians with respect to

immigration, property rights, and education. Because

Asian American students are “overrepresented” at

Harvard, the school’s admissions policies harm Asian

American applicants who “have not made [Harvard’s]

list” of favored groups. Metro Broadcasting, Inc. v.

17

FCC, 497 U.S. 547, 632 (1990) (Kennedy, J.,

dissenting).

II. Grutter Should Be Overruled

Because It Is Unworkable

Grutter was “egregiously wrong when decided,”

and should be overruled for that reason alone. Ramos

v. Louisiana, 140 S. Ct. at 1414 (Kavanaugh, J.,

concurring). The Equal Protection Clause demands

“equal justice under law,” a venerable principle etched

on the building of the Supreme Court. The Fourteen

Amendment prohibits racial discrimination; Grutter

allows it. A rule that permits racial preferences should

not be countenanced even if it were workable. But

Grutter is anything but workable. It was meant to

permit only a sliver of racial discrimination, but

universities have long viewed it as an unqualified

endorsement of racial preferences.

This case is illustrative. As Harvard’s Office of

Institutional Research concluded, “Asian high

achievers have lower rates of admission.” ECF No.

414-3, SFFA’s Statement of Undisputed Facts ¶ 509.

The Office found that athletes with high academic

ratings are admitted over 80 percent of the time,

legacies with high academic ratings are admitted over

half the time, low-income applicants with high

academic ratings are admitted about a quarter of the

time, but Asian applicants with high academic ratings

are only admitted 12 percent of the time. Id. ¶ 508.

The Office also found that the strongest “positive

associations” with being admitted to Harvard were

having a high personal rating, being African

American, being a legacy, or being Native American.

18

Id. ¶ 449. By contrast, there was only one racial group

who had a negative association with being admitted

to Harvard: Asian Americans. Id. ¶¶ 450–51.

The rise of mismatch theory after Grutter was

decided also counsels in favor of revisiting that

decision. See Ramos, 140 S. Ct. at 1414 (Kavanaugh,

J., concurring) (listing “changed facts” as a factor to

consider in cases implicating stare decisis). The basic

principle underlying “mismatch” theory is intuitive:

most students learn best if they are in a class with

others at the same level of preparation. This effect

holds regardless of the student’s race.

Racial preferences implicate mismatch theory. By

definition, they give underqualified applicants a boost

to further the university’s goal in achieving a diverse

class. A few years before Grutter, Rogers Elliott and

his colleagues at Dartmouth conducted an empirical

study that revealed that racial preferences were

deterring racial and ethnic minority students from

majoring in science, technology, engineering, and

mathematics. Rogers, Elliott et al., The Role of

Ethnicity in Choosing and Leaving Science in Highly

Selective Admissions, 37 Res. Higher. Ed. 681 (1996).

Another study published a year after Grutter came to

the same conclusion. See Frederick L. Smyth & John

J. McArdle, Ethnic and Gender Differences in Science

Graduation Rates at Selective Colleges with

Implications for Admissions Policy and College

Choice, 4 Res. Higher Educ. 353 (2004). Stephen Cole

and Elinor Barber similarly found that African

American students at elite colleges were less likely to

persist with an initial interest in academic careers

than their counterparts at less elite schools because of

19

academic mismatch. Increasing Faculty Diversity: The

Occupational Choices of High-Achieving Students

124, 212 (2003). The following year, law professor

Richard Sander published a study indicating that

students who received racial preferences in

admissions were less likely to pass the bar exam. See

generally Richard H. Sander, A Systemic Analysis of

Affirmative Action in Law Schools, 57 Stan L. Rev.

367 (2004.)

Although some scholarship on mismatch existed

prior to Grutter, the principle was popularized more

widely after the decision. Since Professor Sander’s

Stanford Law Review article, the United States

Commission on Civil Rights published two reports—

Affirmative Action in American Law Schools and

Encouraging Minority Students in Science Careers—

intended to make this research more accessible to a

wider audience of policymakers, and Richard Sander

co-authored a book on his research to the same end. A

new report published this year by Amicus Center for

Equal Opportunity provides more on the point. See

Althea Nagai, Campus Diversity and Student

Discontent: The Cost of Race and Ethnic Preferences in

College Admissions, Center for Equal Opportunity,

Jan. 27, 2021. 7 Summarizing the current research,

the report concludes that racial preferences harm the

very students they purportedly benefit. Id. at 29-30.

Students who “benefit” from racial preferences end up

transferring more frequently, take longer to graduate,

and were more dissatisfied compared to others in their

class. Id.

7 http://gator4245.temp.domains/~ceousa40/wp-content/uploads/

2021/01/Costs-of-Diversity-1-27-2021.pdf

20

The post-Grutter research on mismatch counsels in

favor of granting the petition. Many who support

racial preferences in education rest their support of

such programs not on diversity, but on an interest in

remedying past discrimination. See Wencong Fa, The

Trouble with Racial Quotas in Disparate Impact

Remedial Orders, 24 WM. & Mary Bill Rts. J. 1169,

1198–1200 (2016). Yet mismatch theory confirms that

“[i]f the need for the racial classifications . . . is

unclear, . . . the costs are undeniable.” Parents

Involved, 551 U.S. at 745 (plurality op.). All students,

regardless of race, bear the burden of racial

preferences.

21

CONCLUSION

For the reasons stated herein, and those stated by

Petitioner, Amici respectfully request that this Court

grant the petition for certiorari.

DATED: March 2021.

Respectfully submitted,

JOSHUA P. THOMPSON

WENCONG FA*

*Counsel of Record

ALISON E. SOMIN

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

Facsimile: (916) 429-7747

Email: WFa@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation,

Reason Foundation, Center for Equal Opportunity,

Individual Rights Foundation, Chinese American

Citizens Alliance- Greater New York,

Coalition for TJ, and Yi Fang Chen