Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College
Supreme Court briefMar 31, 2021
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No. 20-1199
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IN THE
Supreme Court Of The United States
STUDENTS FOR FAIR ADMISSIONS, INC,
Petitioner,
v.
THE PRESIDENT AND FELLOWS OF
HARVARD COLLEGE,
Respondent.
On Petition for a Writ of Certiorari to the First
Circuit Court of Appeals
BRIEF OF AMICI CURIAE THE ASIAN
AMERICAN COALITION FOR EDUCATION
AND THE ASIAN AMERICAN LEGAL
FOUNDATION IN SUPPORT OF PETITIONER
Lee C. Cheng
Asian American Legal
Foundation
11 Malta Street
San Francisco, CA 94131
leechcheng@gmail.com
Tel: (510) 238-9610
Fax: (510) 977-5127
Gordon M. Fauth, Jr.
(counsel of record)
Litigation Law Group
1935 Addison St., Ste. A
Berkeley, CA 94704
gmf@classlitigation.com
Tel: (510) 238-9610
Fax: (510) 977-5127
Attorneys for Amici Curiae
i
TABLE OF CONTENTS
I.
THE INTEREST OF AMICI CURIAE .............. 1
II.
SUMMARY OF ARGUMENT ............................ 3
ARGUMENT
III. HARVARD’S USE OF THE “PERSONAL”
RATING TO MAINTAIN DE FACTO RACIAL
QUOTAS IS NOT ONLY UNLAWFUL BUT
DEMEANS ALL ASIAN AMERICANS............. 6
A.
Asian American Applicants Are
Systematically Given “Personal” Scores
Significant Lower Than Applicants of
Other Ethnicities ....................................... 6
B.
The Low Personal Ratings Given Asian
American Applicants are Baseless and
Insulting and are Contradicted by the
Assessments of Harvard’s Own Alumni
Interviewers ............................................... 9
C.
In the Hierarchy of Race, Asian American
Applicants Rank Lowest at Harvard ...... 10
IV. HARVARD IS UTILIZING THE SAME
REPELLANT STEREOTYPES USED TO
JUSTIFY DISCRIMINATION AND
VIOLENCE AGAINST ASIAN AMERICANS
THROUGHOUT AMERICA’S HISTORY ....... 11
ii
V.
A.
Persecution of Asian Americans as
Faceless Members of a Despised Group
Was the Shameful Norm ......................... 11
B.
The Chinese Exclusion Act ...................... 14
C.
World War II Internment of JapaneseAmericans ................................................ 14
D.
The Long History of Discrimination
Against Asian Americans in Education .. 15
HARVARD’S DISCRIMINATION CAUSES
PROFOUND INJURY TO ASIAN AMERICAN
STUDENTS AT ALL LEVELS ........................ 18
A.
The Burden af Harvard’s “Handicapping”
of Asian Americans Falls Heaviest on
Those Least Able to Bear It..................... 18
B.
Imposing Higher Admissions Standards
on Asian American Children Leads to Unbearable Study Loads, Stress, Depression
and Other Psychological Harm ............... 19
C.
The Terrible Effect on the Dignity and
Self Worth of Asian Americans Who Know
They will be Subjected to Unequal
Treatment if They are Seen as “Asian” .. 20
iii
VI. THE COURT OF APPEALS FAILED TO
SUBJECT THE HARVARD ADMISSIONS
PROGRAM TO THE HOSTILE AND
SKEPTICAL REVIEW REQUIRED UNDER
TRUE STRICT SCRUTINY ............................. 23
A.
The Court of Appeals Improperly
Deferred to Harvard’s Self-Serving
Testimony, Resolving Doubts in Harvard’s
Favor ........................................................ 23
B.
The Court Below Ignored Evidence that
Race-Neutral Alternatives would have
Met any Legitimate Goals ....................... 24
VII. THIS COURT SHOULD GRANT
CERTIORARI TO REEXAMINE WHETHER
RACE MAY BE USED BY SCHOOLS
OUTSIDE OF A REMEDIAL CONTEXT ....... 26
VIII. FAILURES IN K-12 EDUCATION CANNOT
JUSTIFY RACIAL DISCRIMINATION IN
COLLEGE ADMISSIONS ............................... 29
IX.
CONCLUSION ................................................. 30
Appendix A ....................................................... 1a
iv
TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) ......................... 23-24, 27, 28
Brown v. Board of Education,
347 U.S. 483 (1954) .................................... 17, 30
Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013) ...................................... 25
Gong Lum v. Rice, 275 U.S. 78 (1927)...................... 16
Grutter v. Bollinger, 539 U.S. 306 (2003) .......... 26, 28
Grutter v. Bollinger, 288 F.3d 732, 751-52
(6th Cir. 2002) .................................................. 28
Hirabayashi v. United States,
320 U.S. 81 (1943) ............................................ 15
Hirabayashi v. United States,
828 F. 2d 591 (9th Cir. 1987) ........................... 15
Ho Ah Kow v. Nunan,
12 F. Cal. 252 (C.C.D. Cal. 1879)................ 12-13
Ho v. San Francisco Unified Sch. Dist.,
147 F. 3d 854 (1998) ............................... 3, 16, 17
In re Ah Chong,
2 F. 733 (C.C.D. Cal. 1880) .............................. 13
In re Lee Sing,
43 F. 359 (C.C.D. Cal. 1890) ............................ 13
In re Tiburcio Parrott,
1 F. 481 (C.C.D. Cal. 1880) .............................. 13
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) ................. 15
v
Lee v. Johnson,
404 U.S. 1215 (1971) ........................................ 17
Metro Broadcasting, Inc. v. FCC,
497 U.S. 547, 612 (1990) ...................... 26, 27, 28
NE Fla. Ch. of the Ass. Gen. Contractors v. City of
Jacksonville, 508 U.S. 656, 666 (1993) ............ 18
Parents Inv. In Comm. Sch. v. Seattle School No. 1,
551 U.S. 701, 127 S. Ct. 2738 (2007) .............. 8-9
People v. Hall,
4 Cal. 399 (1854)............................................... 12
Plessy v. Ferguson,
163 U.S. 537 (1896) .......................................... 16
Regents of the Univ. of Calif. v. Bakke,
438 U.S. 265 (1978) .......................................... 27
Rice v. Cayetano,
528 U.S. 495 (2000) ............................................ 8
Richmond v. Croson,
488 U.S. 469 (1989) .............................. 20, 24, 28
San Francisco NAACP v. San Francisco Unified.
Sch. Dist., 59 F. Supp. 2d 1021 (1999) ............ 17
Shaw v. Reno, 509 U. S. 630, 643 (1993) ................. 26
Students for Fair Admissions, Inc. v. Harvard Corp.,
397 F. Supp. 3d 126 (2019) ...................... passim
Tape v. Hurley,
66 Cal. 473, 6 P. 12 (1885) .............................. 15
United States v. Wong Kim Ark,
169 U.S. 649 (1898) .......................................... 13
Wong Him v. Callahan,
119 F. 381 (C.C.N.D. Cal. 1902) ...................... 16
vi
Yick Wo v. Hopkins,
118 U.S. 356 (1886) .......................................... 13
Constitution, Statutes, Orders
18 U.S.C. § 97a ..................................................... 14-15
Chinese Exclusion Act .............................................. 14
Executive Order 9066 ............................................... 14
Title VI, 1964 Civil Rights Act ................................. 25
United States Constitution .............................. passim
Trial Record, Appellate Record
Joint Appendix (JA) .......................................... passim
Petition Appendix (App.) .................................. passim
Books
Low, Victor. The Unimpressible Race
(East/West Publishing Co. 1982) ..................... 12
McClain, Charles. In Search of Equality
(Univ. of Cal. Press 1994) .................... 11-12, 16
Riley, Jason R. Please Stop Helping Us
(Encounter Books 2014) ................................... 29
Sandmeyer, Elmer C. The Anti-Chinese Movement
in California, (Univ. of Ill. Press 1991) ......... 11
vii
Miscellaneous
A Conversation on the Nature, Effects, and Future of
Affirmative Action in Higher Education Admissions,
17 U. Pa. J. Const. L. 683 (2015), available at
https://scholarship.law.upenn.edu/jcl/vol17/iss3/2 .... 9
Admission Considerations in Higher Education
Among Asian Americans, Yi-Chen (Jenny) Wu,
American Psychological Association, available at
http://www.apa.org/pi/oema/resources/ethnicityhealth/asian-american/article-admission.aspx ........ 20
Chinese Immigration and the Chinese Exclusion
Acts, available at
https://history.state.gov/milestones/18661898/chinese-immigration ........................................ 14
Even With Affirmative Action, Blacks and Hispanics
Are More Underrepresented at Top Colleges Than 35
Years Ago, New York Times, Aug. 24, 2017, found at
https://www.nytimes.com/interactive/2017/08/24/us/
affirmative-action.html............................................. 29
Free Dictionary, The, available at https://idioms.
thefreedictionary.com/ Chinaman%27s+chance ...... 12
Group Preferences and the Law, U.S. House of
Representatives Sub-Committee on the Constitution
Hearings, Lee Cheng (June 1, 1995), available at
http://www.archive.org/stream/grouppreferences00u
nit/grouppreferences00unit_djvu.txt ....................... 21
Hate Crimes Against Asian Americans Are on the
Rise, Time, Feb. 18, 2021, found at
https://time.com/5938482/asian-american-attacks/ ... 4
viii
How Colleges Partner With K-12 On Student
Success, University Business, Oct. 17, 2019, found
at https://universitybusiness. com/ colleges-partnerk-12-student-success/ ................................................ 30
‘Lopping,’ ‘Tips’ and the ‘Z-List’: Bias Lawsuit
Explores Harvard’s Admissions Secrets, The New
York Times, July 29, 2018, Anemona Hartocollis,
Amy Harmon and Mitch Smith, found at
https://www.nytimes.com/ 2018/07/29/us/harvardadmissions-asian-americans.html ............................. 6
Myth of American Meritocracy: How Corrupt are Ivy
League Admissions?, Ron Unz (The American
Conservative, Dec. 2012), available at http://www.
theamericanconservative .com/articles/the-myth-ofamerican-meritocracy/ ..................................... 3, 19-20
Race-Neutral Alternatives in Postsecondary
Education: Innovative Approaches to Diversity, U.S.
Department of Education Office for Civil Rights,
March 2003, found at
https://www2.ed.gov/about/offices/list/ocr/edliteraceneutralreport.html ............................................. 25
Surge in Anti-Asian Hate Crimes Raises Fears, Daily
Bulletin, March 5, 2021, found at
https://www.dailybulletin. com/2021/03/05/surge-inanti-asian-hate-crimes-raises-fears-in-southerncalifornia/ .................................................................... 1
The Founding Fathers Made Our Schools Public. We
Should Keep Them That Way, The Washington Post
(Aug. 20, 2017) available at https://www.
washingtonpost.com/news/ made-by-history/
wp/2017/ 08/20/early-america-had-school-choice-thefounders-rejected-it/?utm_term=.815adf5587ba ..... 15
ix
Tips From the Princeton Review: Act Less Asian,
Add Pics if You’re Black, Akane Otani, Bloomberg
(Nov. 21, 2014), available at https://www.bloomberg.
com/news/articles/2014-11-21/princeton-review-tellsasians-to-act-less-asian-and-black-students-toattach-photos............................................................. 22
To Get Into Elite Colleges, Some Advised To ‘Appear
Less Asian,’ Bella English, The Boston Globe (June
1, 2015), available at https://www.bostonglobe.com/
lifestyle/ 2015/06/01/ college-counselors-advise-someasian-students-appear-lessasian/Ew7g4JiQMiqYNQ lIwqEIuO/story.html ...... 22
Top Colleges Take More Blacks, but Which Ones?
New York Times, June 24, 2004, available at
https://www.nytimes.com/2004/06/24/us/top-collegestake-more-blacks-but-which-ones.html ................... 29
Why Are Asian Americans Kids Killing Themselves?,
George Oiao, Plan A Magazine (Oct. 3, 2017),
available at https://planamag.com/why-are-asianamerican-kids-killing-themselves-477a3f6ea3f2...... 19
1
I.
THE INTEREST OF AMICI CURIAE 1
This case is of critical importance to amici
curiae and their constituents, most of whom are
Americans of Asian ethnic descent. Asian Americans
have historically faced discrimination and often
violent acts of racial prejudice in education and other
aspects of American life. This case is particularly
poignant as recently the Asian American community
has experienced a pandemic of raced-based
violence—vulnerable Asian Americans have been
viciously attacked and brutally murdered, in broad
daylight, in the streets of American cities. Surge in
Anti-Asian Hate Crimes Raises Fears, Daily Bulletin,
March 5, 2021, found at https://www.dailybulletin.
com/2021/03/05/surge-in-anti-asian-hate-crimesraises-fears-in-southern-california/ (last visited 3/29/
2021).
Members and constituents of amici curiae have
gone through admissions processes at institutions
where, as at Harvard College, their Asian ethnicity
was considered less desirable because it was
regarded as less “diverse.” Many of them have
children who were denied entrance to or who may
one day aspire to attend Harvard or another selective
1 No counsel for a party authored this brief in whole or in part,
nor did any person or entity, other than amici or their counsel,
make a monetary contribution intended to fund the preparation
or submission of this brief. All parties have been timely notified
of and have given their consent to the filing of this amici curiae
brief.
2
school with similar discriminatory admissions
practices.
The Asian American Coalition for Education
(“AACE”) is an apolitical, non-profit, national
organization devoted to promoting equal rights for
Asian Americans in education and education-related
activities. The leaders of AACE and its supporting
organizations are Asian American community
leaders, business leaders and, most importantly,
parents. They are not professional “civil rights
advocates” and do not get funding from large
corporations or multibillion dollar foundations, but
were forced to become civil rights advocates to
expose, stop and prevent the discrimination against
their children that the “professionals” ignore,
downplay and facilitate.
In this amici filing, AACE represents the 346
Asian American and other organizations listed in
Appendix A hereto. More information on AACE can
be found at http://asianamericanforeducation.org.
The Asian American Legal Foundation
(“AALF”), a non-profit organization based in San
Francisco, was founded in 1994 to protect and
promote the civil rights of Asian Americans. AALF
focuses its work on situations where Asian
Americans are discriminated against for a
purportedly benign purpose and where high profile
groups
and
individuals
often
deny
that
discrimination even exists. Members of AALF were
instrumental in the struggle to end discrimination
3
against Chinese American students in the San
Francisco, California public school system. See Ho v.
San Francisco Unified Sch. Dist., 147 F.3d 854
(1998). More information on AALF can be found at
http://www.asianamericanlegal.com.
Amici Curiae ask this Court to hear their
arguments in support of Petitioner and to grant
certiorari in this critical case.
II.
SUMMARY OF ARGUMENT
The
evidence
shows
that
Harvard
unconstitutionally maintains de facto racial quotas
by giving candidates of less “desirable” races—
particularly Asian Americans—lower “Personal”
ratings in a covert “closed door” process. The lowered
Personal rating drastically diminishes the chances of
admission. As the percentage of highly-qualified
Asian American applicants in the admission pool has
risen over time, Harvard has artificially depressed
the Personal ratings assigned to Asian American
applicants, so as to keep the percentage of Asian
Americans in Harvard’s student body at a roughly
constant level.2
The percentage of Asian Americans applicants admitted to
Harvard remained remarkably constant at slightly under 20
percent during a multi-decade period of time in which the
number of Asian American applicants grew dramatically.
JA5744; Ron Unz, The Myth of American Meritocracy: How
Corrupt are Ivy League Admissions?, pgs. 17-22 (The American
Conservative, Dec. 2012), at https://www.theamerican
2
4
Asian American applicants are assigned
Personal ratings significantly lower on average than
the ratings assigned to applicants of all other ethnic
groups. The only way an Asian American candidate
has any chance of admission to Harvard is to score
higher than candidates of all other ethnicities on the
remaining admission metrics.
The Personal rating purportedly reflects the
candidate’s human attributes such as “integrity,
helpfulness, courage, kindness, fortitude, empathy,
self-confidence, leadership ability, maturity, and
grit.” Assigning Asian Americans significantly lower
Personal ratings falsely labels them as deficient in
those qualities, and echoes the negative stereotypes
long used to justify persecution of and violence
against this historically disadvantaged group. It also
eerily echoes what Harvard did in the 1920s to
Jewish-American candidates so as to maintain a very
similar quota. And, just as past anti-Semitic slurs
spawned violence against Jews, today’s libel
similarly
promotes
violence
against
Asian
Americans. Hate Crimes Against Asian Americans
Are on the Rise, Time, Feb. 18, 2021, found at
https://time.com/5938482/asian-american-attacks/
(last visited 3/25/2021).
conservative.com/articles/the-myth-of-american-meritocracy/
(last checked 2/23/2021). Significantly, each time Harvard has
been subject to a complaint or investigation, the percentage of
Asian Americans admitted has increased slightly the following
year.
5
Throughout much of their long history in this
country, Asian Americans faced discrimination
rationalized by depicting them as faceless members
of a “yellow horde,” lacking the values and human
attributes of other Americans. Case after case in
America’s history bears witness to their long struggle
to obtain fair treatment. It is thus horrifying to see
Asian Americans once again subjected to negative
stereotypes and discrimination—this time by one of
America’s most respected educational institutions.
Making the situation worse, Harvard’s
discrimination is also being emulated by other
institutions. This widespread discrimination, copied
across the nation, is causing real and tangible harm.
The discrimination causes many Asian American
children to feel a sense of inferiority, anger, and
hopelessness in their academic endeavors.
Harvard’s
racial
stereotyping
and
discrimination have no place in America today. This
Court should grant certiorari to stop Harvard’s
unlawful use of race, and also so that it can clarify
the standards applicable to a college’s use of race in
the admissions process.
6
ARGUMENT
III.
HARVARD’S USE OF THE “PERSONAL”
RATING TO MAINTAIN DE FACTO
RACIAL QUOTAS IS NOT ONLY
UNLAWFUL BUT DEMEANS ALL ASIAN
AMERICANS
A.
Asian American Applicants are
Systematically Given “Personal”
Scores Significantly Lower Than
Applicants of Other Ethnicities
The Court should grant certiorari to determine
whether Harvard College may lawfully continue to
mark down the “Personal” ratings assigned to Asian
American applicants to “balance” the racial makeup
of its student body.3
“The Personal score is
3 The entire Harvard admissions process is preoccupied with
race. Harvard maintains racial “balance” by assigning higher
Personal scores to applicants from desired races and lower
Personal ratings to those of less desired races, and by
considering race when it assigns the overall rating. The final
race-based adjustment occurs at the end of the process, by
“lopping” applicants of disfavored races from the admit pool
until it reaches its diversity goals. Students for Fair
Admissions, Inc. v. Harvard Corp., 397 F. Supp. 3d 126, 144,146
(2019); JA2048:12-2049:1; JA4156; JA4011; JA4138-46.
‘Lopping,’ ‘Tips’ and the ‘Z-List’: Bias Lawsuit Explores
Harvard’s Admissions Secrets, The New York Times, July 29,
2018, found at https://www.nytimes.com/2018/07/29/us/harvardadmissions-Asian Americans.html (last visited 2/27/2021).
“Lopping” is typically controlled by the most senior, and
arguably most entrenched, admissions officers, with little
objectivity or transparency, and consistently achieves Harvard’s
racial enrollment goals.
7
dramatically important to admission to Harvard
College.” Joint Appendix (“JA”) 465. Significantly,
during a multi-decade period in which the percentage
of qualified Asian Americans in the applicant pool
steadily increased, the average Personal score given
Asian American applicants decreased relative to
other races, so as to keep the percentage of Asian
Americans in the Harvard student body relatively
constant at around 20 per cent. JA5744.
The Personal rating (scored 1-6 with “1” being
the highest) supposedly measures human attributes
such as “integrity, helpfulness, courage, kindness,
fortitude, empathy, self-confidence, leadership
ability, maturity, and grit.”
Petition Appendix
(“App.”) 19, 125.4 “[A] score of ‘1’ is ‘outstanding,’ a
score of ‘2’ is ‘very strong,’ and a score of ‘3’ is
‘generally positive.’ Applicants who receive ratings of
‘4,’ ‘5,’ or ‘6’ are typically described as ‘bland or
somewhat
negative
or
immature,’
having
‘questionable personal qualities’ or ‘worrisome
personal qualities,’ respectively.” Id. Harvard’s use
of the Personal rating to “devalue” Asian American
applicants demeans and dehumanizes members of
this ethnic group by labelling them as somehow
deficient in character.
4 The Personal rating is added to ratings for Academics,
Extracurricular, and Athletics to produce an overall rating.
App. 126-128. “Harvard acknowledges that admissions officers
can and do take an applicant’s race into account when assigning
an overall rating.” App. 21.
8
The effect of Harvard’s manipulation of
Personal ratings is not subtle. Fewer than 20% of
applicants receive a 1 or 2, yet they represent 78% of
the admitted class.
JA4525; JA463-464.
For
applicants in the top academic decile, the percentage
receiving a 1-2 Personal rating is: Asian American
22%, White 30%, Hispanic 34%, African American
47%. JA4535; JA463-468. The same hierarchy
persists for the other deciles. Id. Amici make no
claim that Asian Americans are special, but it defies
logic that applicants from this community can be
consistently that deficient in character compared
with white, Hispanic and African-American
applicants.
Harvard’s use of the Personal rating to limit
admission of Asian Americans is appalling and
reinforces negative stereotypes historically used to
justify discrimination and even violence against the
Asian American community. Harvard “demeans the
dignity and worth” of Asian Americans by judging
them by ancestry instead of by their “own merit and
essential qualities.” Rice v. Cayetano, 528 U.S. 495,
517 (2000). Harvard’s maintenance of a relatively
constant percentage of Asian Americans in its
student body during a multi-decade period in which
the percentage of highly-qualified Asian American
applicants rose dramatically show it is engaged in
racial balancing, exactly what the Supreme Court
has warned against. “We have many times over
reaffirmed that ‘[r]acial balance is not to be achieved
9
for its own sake.’” Parents Inv. In Comm. Sch. v.
Seattle School No. 1, 127 S. Ct. 2738, 2757 (2007)
(citing cases).
B.
The Low Personal Ratings Given
Asian American Applicants are
Baseless and Insulting and are
Contradicted by the Assessments of
Harvard’s Own Alumni
Interviewers
Significantly, Harvard alumni interviewers,
who actually meet with most applicants in person
(unlike the internal admissions staff), rate Asian
American applicants on average as high as
applicants of other ethnicities in terms of character
and personal attributes. See Harvard, 397 F. Supp.
3d at 162. That the in-person interview assessment
is the correct one is supported by common sense, by
Harvard’s failure and refusal to provide evidence of
the purportedly deficient personalities of Asian
Americans, and by outside studies showing that
Asian Americans are not deficient in personal
characteristics. See e.g., Arcidiacono, Espenshade &
Sander, A Conversation on the Nature, Effects, and
Future of Affirmative Action in Higher Education
Admissions, 17 U. Pa. J. Const. L. 683, 694-695
(2015)., located at https://scholarship.law.upenn.edu/
jcl/ vol17/iss3/2 (lasted visited 3/29/2021) (study of
100,000 undergraduate applicants to UCLA over
three years found “essentially no correlation”
10
between race and personal attributes.)
C.
In the Hierarchy of Race, Asian
American Applicants Rank Lowest
at Harvard
Through use of the Personal rating, Harvard
essentially imposes a racial hierarchy, where African
Americans are the most preferred, followed by
Hispanics, followed by whites, and with Asians at the
bottom as the least favored and the least likely to be
admitted. JA4535; JA463-468. At trial, Harvard
failed to provide any plausible race-neutral
explanation for why African Americans and
Hispanics are scored so much higher in their
Personal ratings than whites and Asian Americans.
See JA2227-2229; JA6005-06; Harvard, 397 F. Supp.
3d at 162; App. 180, 189-94. There really can be no
non-discriminatory explanation for this racial
hierarchy.
Even when an Asian American applicant is in
a category that would normally receive preference—
—such as living in an underrepresented geographical
area, or from a disadvantaged socioeconomic
background—the Asian American applicant receives
no preference but is discriminated against. As an
2013 investigation by Harvard’s own Office of
Institutional Research (“OIR”) concluded, “While we
find that low income students clearly receive a ‘tip’ in
the admissions process, … we see a negative effect
11
for Asian applicants.” JA3953; JA3957; JA1174-1177;
JA844-845.
The evidence shows that Harvard’s bias
extends even to its outreach. When Harvard sends
letters inviting high school students in underserved
rural regions to apply for admission, Asian
Americans must score significantly higher on the
PSAT than students of all other races to receive an
invitation. App. 154-55.
IV.
HARVARD IS UTILIZING THE SAME
REPELLANT STEREOTYPES USED TO
JUSTIFY DISCRIMINATION AND
VIOLENCE AGAINST ASIAN
AMERICANS THROUGHOUT AMERICA’S
HISTORY
A.
Persecution of Asian Americans as
Faceless Members of a Despised
Group Was the Shameful Norm
Through the method it uses to “balance” its
student body, Harvard is perpetuating the same
odious stereotypes historically used to justify
discrimination
and
violence
against
Asian
Americans—that they are “faceless” and deficient in
the human qualities possessed by other Americans.
Throughout much of American history, Asian
Americans
were
marginalized
and
denied
opportunities open to other Americans. See, e.g.,
Charles McClain, In Search of Equality (Univ. of Cal.
12
Press 1994); Elmer Clarence Sandmeyer, The AntiChinese Movement in California (Univ. of Ill. Press
1991); Victor Low, The Unimpressible Race
(East/West Publishing Co. 1982).
While Asian
American immigrants were drawn to the United
States by its promise of a better life, all too often,
they found only the dangerous work that nobody else
wanted. Their treatment was so dismal it gave rise
to the expression “a Chinaman’s Chance,” a term
meaning, “Little or no chance at all; a completely
hopeless prospect.” The Free Dictionary, found at
https://idioms.thefreedictionary.com/
Chinaman%27s+chance (last visited 3/26/2021).5
The many court cases in which Asian
Americans struggled for equal treatment provide a
historical record that is tragic, outrageous and
impossible to refute.
In 1854, in People v. Hall, 4 Cal. 399, 404-05
(1854), the California Supreme Court invalidated the
testimony of Chinese-American witnesses to a
murder, explaining that Chinese were “a distinct
people . . . whose mendacity is proverbial; a race of
people whom nature has marked as inferior, and who
are incapable of progress or intellectual development
beyond a certain point, as their history has shown;
5 There are various explanations for the origin of this phrase.
“One is that they were given the most dangerous jobs, such as
setting and igniting explosives. Another is that judges and
juries routinely convicted Chinese defendants on the flimsiest of
evidence. A third is that Chinese miners were allowed to work
gold claims only after others had taken the best ore.” Id.
13
differing in language, opinions, color, and physical
conformation; between whom and ourselves nature
has placed an impassable difference.”
In Ho Ah Kow v. Nunan, 12 F. Cal. 252 (C.C.D.
Cal. 1879) (No. 6,546), a district court invalidated
San Francisco’s infamous “Queue Ordinance” on
equal protection grounds.
In In re Ah Chong, 2 F. 733 (C.C.D. Cal. 1880),
the court found unconstitutional a law forbidding
Chinese Americans from fishing in California waters.
In In re Tiburcio Parrott, 1 F. 481 (C.C.D. Cal.
1880), the court declared unconstitutional a provision
of California’s 1879 constitution that forbade
corporations and municipalities from hiring Chinese
Americans.
In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the
Supreme Court ruled that Chinese were “persons”
under the Fourteenth Amendment and could not be
singled out for unequal burden under a San
Francisco laundry licensing ordinance.
In In re Lee Sing, 43 F. 359 (C.C.D. Cal. 1890),
the court found unconstitutional the “Bingham
Ordinance,” which had mandated residential
segregation of Chinese Americans.
In United States v. Wong Kim Ark, 169 U.S. 649
(1898), the Supreme Court ruled that a ChineseAmerican boy, born in San Francisco, could not be
prevented by San Francisco officials from returning
to the city from a trip abroad.
14
B.
The Chinese Exclusion Act
In 1882, in an extraordinary attack on equal
protection, Congress passed the Chinese Exclusion
Act, a national law enacted to prevent an entire
ethnic group from immigrating to the United States.
See Chinese Immigration and the Chinese Exclusion
Acts, at https://history.state.gov/milestones/18661898/chinese-immigration (last visited 3/28/2021).
Fueled by anti-Chinese hysteria and supported by
societal leaders of the time, it prohibited all entry of
“Chinese laborers.” Id. As aptly described by
opponent Republican Senator George Frisbie Hoar, it
was “nothing less than the legalization of racial
discrimination.” Id.
The Act was not repealed until 1943, when
China was an ally of the United States in the war
against the Empire of Japan. Id.
C.
World War II Internment of
Japanese-Americans
Perhaps
the
most
egregious
modern
infringement of the constitutional rights of Asian
Americans occurred during World War II, when
entire families of Japanese Americans were removed
from their West Coast homes and placed in
internment camps.6 Backed up by the statements of
6 Executive Order No. 9066, issued February 19, 1942,
authorized the Secretary of War and military commanders “to
prescribe military areas from which any persons may be
15
authorities and experts, who solemnly declared the
discriminatory measure necessary, the internment of
Americans on American soil was allowed by the
United States Supreme Court. See Hirabayashi v.
United States, 320 U.S. 81 (1943). Only decades
later was it acknowledged there was no justification
for this abrogation of constitutional rights. See
Korematsu v. United States, 584 F. Supp. 1406, 141620 (N.D. Cal. 1984) (motivation was “racism” and
“hysteria” and not “military necessity”); Hirabayashi
v. United States, 828 F.2d 591 (9th Cir. 1987).
D.
The Long History of Discrimination
Against Asian Americans in
Education
After the 1776 Revolution, Americans agreed
with Thomas Jefferson “that the future of the
republic depended on an educated citizenry” and that
universal public education should be provided to all
citizens. Johann N. Neem, The Founding Fathers
Made Our Schools Public. We Should Keep Them
That Way, The Washington Post, Aug. 20, 2017,
found
at https://www.washingtonpost.com/news/
made-by-history/wp/2017/08/20/early-america-hadexcluded as protection against espionage and sabotage.”
Congress enacted § 97a of Title 18 of the United States Code,
making it a crime for anyone to remain in restricted zones in
violation of such orders. Military commanders then issued
proclamations excluding Japanese Americans from West Coast
areas and sending them to internment camps. See Korematsu,
584 F. Supp. at 1409.
16
school-choice-the-founders-rejected-it/ (last visited
3/29/2021). Alas, that sentiment did not extend to
Asian Americans, who often faced formidable
discrimination in public education.
In Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885), it
took a court battle to force San Francisco public
schools to admit a Chinese-American girl denied
entry because, as stated by the State Superintendent
of Public Instruction, public schools were not open to
“Mongolian” children. McClain, supra, at 137. In
response, the California legislature authorized
“Chinese” schools to which Chinese-American
schoolchildren were restricted until well into the
twentieth century. Ho v. San Francisco Unified Sch.
Dist., 147 F.3d 854, 864 (1998).
Asian American schoolchildren were among the
first targets of the “separate-but-equal” doctrine
created in Plessy v. Ferguson, 163 U.S. 537 (1896).
The Supreme Court created the doctrine in a case
where a black passenger attempted to board a
“white” railway car. Id. In Wong Him v. Callahan,
119 F. 381 (C.C.N.D. Cal. 1902), this doctrine was
applied to schools when a court ruled that ChineseAmerican children in San Francisco could be barred
from “white” schools because the “Chinese” school in
Chinatown was “separate but equal.”
In Gong Lum v. Rice, 275 U.S. 78 (1927), the
Supreme Court affirmed that the separate-but-equal
doctrine applied to schools, finding that a nine-yearold Chinese-American girl in Mississippi could be
17
denied entry to the local “white” school because she
was a member of the “yellow” race. Id. at 87.
In Ho v. San Francisco Unified Sch. Dist.,
supra, 147 F.3d 854, a striking modern example of
discrimination, constituents of amici curiae were
forced to engage in five years of vigorous litigation to
end the San Francisco school district’s policy of
assigning children to the city’s K-12 schools based on
their race. See id.; San Francisco NAACP v. San
Francisco Unified. Sch. Dist., 59 F. Supp. 2d 1021
(1999).
The Ho case was particularly ironic as earlier,
in Lee v. Johnson, 404 U.S. 1215, 1215-16 (1971),
recognizing the long history of discrimination against
Asian Americans in education, Justice Douglas had
written: “Historically, California statutorily provided
for the establishment of separate schools for children
of Chinese ancestry. That was the classic case of de
jure segregation involved in Brown v. Board of
Education [347 U.S. 483 (1954)]. . . Brown v. Board
of Education [which abolished the separate-but-equal
doctrine] was not written for blacks alone. It rests on
the Equal Protection Clause of the Fourteenth
Amendment, one of the first beneficiaries of which
were the Chinese people of San Francisco.”
18
V.
HARVARD’S DISCRIMINATION CAUSES
PROFOUND INJURY TO ASIAN
AMERICAN STUDENTS AT ALL LEVELS
A.
The Burden Of Harvard’s
“Handicapping” of Asian Americans
Falls Heaviest on those Least Able
to Bear It
Perversely,
the
burden
of
Harvard’s
discrimination falls heaviest on the most
disadvantaged Asian American individuals.
It would be a mistake to reason that because
Asian American students who aspire to Harvard
apply with high GPAs and test scores, that
conditions are merely being “equalized” by Harvard’s
discrimination and that no one is really being “hurt.”
First, the constitutional injury lies in the absence of
equal treatment, whatever the result. Northeastern
Fla. Ch. of the Associated Gen. Contractors v. City of
Jacksonville, 508 U.S. 656, 666 (1993). But here,
what happens is that the best prepared, more
socioeconomically advantaged Asian American
candidates may still gain entry to Harvard in spite of
the ethnic “handicap.” They fill the “Asian” quota,
while less advantaged Asian American candidates
who are not as well prepared are left out. That this
is indeed what is happening is shown by the 2013
OIR study, which found that, while socioeconomically
disadvantaged applicants of all other races received a
“tip” in the admissions process, the reverse was true
19
for Asian American applicants, who were less likely
to gain entry. JA3953; 3957; Harvard, 397 F. Supp.
3d at 151 (“only demographic group for which OIR's
analysis returned a negative coefficient was “Asian”);
App. 148.
B.
Imposing Higher Admissions
Standards On Asian American
Children Leads To Unbearable
Study Loads, Stress, Depression
and Other Psychological Harm
Harvard’s de facto higher admissions bar for
Asian American applicants is emulated by other
selective colleges. Preparing for college is daunting
for all high school students; and this higher bar
makes the process even worse for Asian Americans
students. Filled with despair because they know they
will face formidable additional barriers in the
admissions process, many Asian American students
undertake overwhelming study loads, literally
working themselves into ill health. They suffer high
rates of anxiety and depression, and increased
incidence of suicide.
“Asian American college students are 1.6 times
more likely than all others to make a serious suicide
attempt.” George Qiao, Why Are Asian American
Kids Killing Themselves? Plan A Magazine, Oct. 3,
2017, found at https://planamag.com/why-areasian-american-kids-killing-themselves/ (last visited
3/29/2021); see Unz, Ron, supra, The Myth of
20
American Meritocracy, at 21 (“[T]hese leading
academic institutions have placed a rather strict
upper limit on actual Asian enrollment, forcing these
Asian students to compete more and more fiercely for
a very restricted number of openings. . . .”)
When Asian American kids learn that they face
barriers because of their race, and are deemed to
contribute “less” to “diversity,” they often want to
deny or repudiate their ethnic heritage. Many
researchers have documented the pernicious effects
felt throughout the Asian American community. See
Yi-Chen (Jenny) Wu, Admission Considerations in
Higher Education Among Asian Americans,
American Psychological Association, found at
https://www.apa.org/pi/oema/resources/ethnicityhealth/asian-american/article-admission (last visited
3/28/2021) (citing sources).
C.
The Terrible Effect on the Dignity
and Self Worth of Asian Americans
Who Know They Will Be Subjected
To Unequal Treatment if They are
Seen as “Asian”
Classification by race, here for the purpose of
scoring Asian American candidates as deficient in
Personal characteristics, inevitably promotes feelings
of “racial inferiority” and “racial hostility.” Richmond
v. J. A. Croson Co., 488 U. S. 469, 493-94 (1989). In
American education today, it has produced a
21
pernicious regime in which it is viewed as somehow
shameful to be seen as “Asian.”
As Lee Cheng, Secretary of AALF, testified in
hearings held by the U.S. House of Representatives,
Sub-Committee on the Constitution, “Many Chinese
American children have internalized their anger and
pain, confused about why they are treated differently
from their non-Chinese friends. Often they become
ashamed of their ethnic heritage . . . ” Group
Preferences and the Law, U.S. House of
Representatives Sub-Committee on the Constitution
Hearings (June 1, 1995), p. 241, found at
http://www.archive.org/stream/grouppreferences00un
it/ grouppreferences00unit_djvu.txt (last visited
3/28/2021).
College admissions consultants openly advise
that being Asian American is a liability and that
applicants should try to conceal their race:
“Brian Taylor is director of Ivy Coach, a
Manhattan company that advises
families on how to get their students
into elite colleges. . . ‘While it is
controversial, this is what we do,’ he
says. ‘We will make them appear less
Asian when they apply.’”
...
Chen founded Asian Advantage College
Consulting . . . “The admissions officers
are seeing a bunch of people who all
look alike: high test scores, high grades,
many play musical instruments and
22
tend not to engage in more physical
sports like football,” Chen says. If
students come to him early in high
school, Chen will direct them to “switch
to another musical instrument” or “play
a sport a little bit out of their element.”
And for the college essay, don’t write
about your immigrant family . . .”
Bella English, To Get Into Elite Colleges, Some
Advised To ‘Appear Less Asian,’ The Boston Globe,
June 1, 2015, found at https://www.bostonglobe.com/
lifestyle/2015/06/01/college-counselors-advise-someasian-students-appear-less-asian/
Ew7g4JiQMiqYNQlIwqEIuO/story.html (last visited
3/28/2021).
The
Princeton
Review
advises
Asian
Americans: “If you’re given an option, don’t attach a
photograph to your application and don’t answer the
optional question about your ethnic background. This
is especially important if you don’t have an Asiansounding surname. (By the same token, if you do
have an Asian-sounding surname but aren’t Asian,
do attach a photograph).” Akane Otani, Tips From
the Princeton Review: Act Less Asian, Add Pics if
You're Black, Bloomberg, Nov. 21, 2014, found at
https://www.bloomberg.com/news/articles/2014-1121/princeton-review-tells-asians-to-act-less-asianand-black-students-to-attach-photos (last visited
3/27/2021).
23
Only Asian American children have to hide that
they want to be violinists or pianists, or doctors or
scientists. Only they are told that it might be fatal to
their college admission chances to provide a
photograph that reveals their race. This cannot be
right. American children should not need to feel that
they will be discriminated against in education
unless they hide their ethnic heritage.
VI.
THE COURT OF APPEALS FAILED TO
SUBJECT THE HARVARD ADMISSIONS
PROGRAM TO THE HOSTILE AND
SKEPTICAL REVIEW REQUIRED
UNDER TRUE STRICT SCRUTINY
A.
The Court of Appeals Improperly
Deferred to Harvard’s Self-Serving
Testimony, Resolving Doubts in
Harvard’s Favor
This Court should grant certiorari to clarify that
strict scrutiny requires an unsympathetic, skeptical
examination of a school’s use of race—and not the
highly deferential review given Harvard’s admissions
program. Even if we accept, as the courts below did,
that Harvard’s motives are benign, in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995), this
Court rejected the idea that “benign” use of race
merits more lenient review, declaring that the first
principle in examining any use of race is “skepticism:
‘Any preference based on racial or ethnic criteria
must necessarily receive a most searching
24
examination.’” Adarand, at 223, 227-28 (citation
omitted). Without a skeptical review, there is no way
to know “what classifications are in fact motivated by
illegitimate notions of racial inferiority or simple
racial politics.” Id. at 226.
Even leaving aside Harvard’s admitted use of
race when it applies the “overall” rating, the
hierarchy of races imposed through the Personal
rating—one that just happens to provide the
preferences needed to maintain Harvard’s balance of
races—strongly suggests that “racial politics” are at
play. Harvard failed to prove a lawful reason for
Asian Americans’ lower Personal ratings, and the
district court found they might be due to biased
admissions officers and overt discrimination.
Harvard, 397 F. Supp. 3d at 168, 194; App. 193-94.
Yet, all doubts were resolved to favor Harvard and,
improperly deferring to Harvard and its experts, the
courts below failed to apply true skeptical review to
“smoke out” the “illegitimate use[] of race.” Croson
488 U. S. at 493.
B.
The Courts Below Ignored Evidence
That Race-Neutral Alternatives
Would Have Met Any Legitimate
Goals
Similarly, the Courts below improperly deferred
to Harvard’s own conclusory statements that raceneutral alternatives would not have sufficed to meet
diversity goals. “[S]trict scrutiny imposes on the
25
university the ultimate burden of demonstrating,
before turning to racial classifications, that available,
workable race-neutral alternatives do not suffice.”
Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411,
2420 (2013) (emphasis added). “Workable” does not
mean perfection; it means “about as well . . . ” Id. at
2420. In this analysis, “the University receives no
deference.” Id.
It is outrageous that Harvard did not even
consider alternatives to use of race until after this
case was filed. App. 152-53. Harvard’s failure to use
race-neutral alternatives is particularly inexcusable
given its unmatched resources, which should have
enabled it easily to do what other less well-endowed
institutions have done.
See Race-Neutral
Alternatives in Postsecondary Education: Innovative
Approaches to Diversity, U.S. Department of
Education Office for Civil Rights, March 2003, found
at
https://www2.ed.gov/about/offices/list/ocr/edliteraceneutralreport.html (last visited 3/27/2021). As
the record shows, there were race-neutral
alternatives that would have worked “about as well,”
producing almost the same racial diversity and
superior economic diversity. JA1491:15-1505:18;
JA5983-88. Instead, Harvard chose to use race, and
in a manner that disparages all Asian Americans.
26
VII.
THIS COURT SHOULD GRANT
CERTIORARI TO REEXAMINE
WHETHER RACE MAY BE USED BY
SCHOOLS OUTSIDE OF A REMEDIAL
CONTEXT
The United States Constitution and Title VI of
the 1964 Civil Rights Act prohibit discrimination by
race. As this Court has long taught, “[c]lassifications
of citizens solely on the basis of race are by their very
nature odious to a free people whose institutions are
founded upon the doctrine of equality.” Shaw v. Reno,
509 U. S. 630, 643 (1993) (internal quotes omitted).
Consistent with that principle, universities should
not be allowed to use race except where necessary to
provide a remedy for prior de jure discrimination.
Diversity
is
“simply
too
amorphous,
too
insubstantial, and too unrelated to any legitimate
basis for employing racial classifications….” Metro
Broadcasting, Inc. v. FCC, 497 U.S. 547, 612 (1990)
(O’Connor, J., dissenting). As this case demonstrates,
if a search for diversity is allowed to rise to a
compelling government interest, it is all too easy for
school officials to justify any race balancing program
by concocting ambiguous and ill-defined pedagogical
goals, backed by the self-serving statements of school
officials and their allied experts.
Until Grutter v. Bollinger, 539 U.S. 306 (2003),
this Court’s jurisprudence taught that the
Fourteenth Amendment’s prohibition against the use
of race was absolute except where it was necessary to
27
further the compelling government interest of
providing a remedy to individuals subjected to prior
racial discrimination. In Grutter, this Court held that
the University of Michigan law school was permitted,
for pedagogical purposes, to use race to achieve a
“critical mass” of minority students. Id. at 330. In
reaching its decision, this Court relied on Justice
Powell’s dicta in Bake and, indirectly, on the tainted
anti-Semitic Harvard admissions program of the
1920s.7
Amici curiae urge this Court to revisit Grutter
and reconsider the use of race in school admissions.
As this Court warned in Croson, 488 U.S. 469, unless
racial classifications are “reserved for remedial
settings, they may in fact promote notions of racial
inferiority and lead to the politics of racial hostility.”
Id. at 493. That is exactly what is happening here.
As stated by the dissent in Metro Broadcasting, 497
U.S. 547, later vindicated by this Court in Adarand,
515 U.S. 200, “[m]odern equal protection doctrine has
7 Justice Powell’s statement in Regents of the University of
California v. Bakke, 438 U.S. 265 (1978), that diversity might in
some circumstances rise to a compelling government interest
does not constitute a holding supporting use of race in
education by the Supreme Court. The medical school admission
program at issue in that case was found unconstitutional; so the
statement was dicta. Furthermore, it was expressed in an
opinion ascribed to only by Justice Powell. See 438 U.S. at 272,
320. Interestingly, Justice Powell’s dicta expressly lauded
Harvard College’s “soft” diversity-discretion model of
affirmative action, but failed to consider that the Harvard Plan
had anti-Semitic roots, being designed to restrict enrollment of
Jewish students. JA1666:9-14; JA3688-89.
28
recognized only one such interest: remedying the
effects of racial discrimination.” Metro Broadcasting,
497 U.S. at 612 (O’Connor, J., dissenting). It is time
to return to that bright-line rule.
Grutter itself reveals the
constitutional
awkwardness of elevating diversity to a compelling
government interest.
The opinion in Grutter
acknowledges that in evaluating the academic
benefits that flow from diversity, certain deference
must be accorded to the school conducting the
discrimination, 539 U.S. at 330, something squarely
at odds with the skepticism demanded by strict
scrutiny. See Adarand, 515 U.S. at 223. Similarly,
this Court has held that, “all governmental use of
race must have a logical end point.” Grutter, 539 US
at 342. However, as the Sixth Circuit accurately
stated, “[u]nlike a remedial interest, an interest in
academic diversity does not have a self-contained
stopping point.” Grutter v. Bollinger, 288 F.3d 732,
751-52 (6th Cir. 2002). That presents a most serious
problem. If Harvard and other elite schools are
allowed to consider “diversity” a compelling interest
justifying use of race, there is no logical end point,
and they will continue using race forever. Their
discriminatory admissions programs will become
exactly what this Court has warned against—
“ageless in their reach into the past, and timeless in
their ability to affect the future.” Croson, 488 U.S. at
498 (internal quotation marks omitted). The result
will be to ignore the rights of individuals, and to
29
balkanize American students into racial groups, with
each group pitted against the other in a zero sum
game that can only lead to further racial hostility.
VIII. FAILURES IN K-12 EDUCATION
CANNOT JUSTIFY RACIAL
DISCRIMINATION IN COLLEGE
ADMISSIONS
To the extent Harvard desires to help the
disadvantaged, that is a laudable aspiration; but
institutionalized racism is not the answer. Not only
does race-based admission favor well-off African
American
and
Hispanic
applicants
over
disadvantaged Asian and white candidates, it also
discriminates against American-born members of the
minority communities it claims to benefit. Top
Colleges Take More Blacks, but Which Ones? New
York
Times,
June
24,
2004,
found
at
https://www.nytimes.com/2004/06/24/us/top-collegestake-more-blacks-but-which-ones.html (last visited
3/24/2021) (a majority of black students at Harvard
are from other countries or mixed families). Decades
of race-based college admission has failed to improve
education in black and Hispanic communities. Even
With Affirmative Action, Blacks and Hispanics Are
More Underrepresented at Top Colleges Than 35
Years Ago, New York Times, Aug. 24, 2017, found at
https://www.nytimes.com/interactive/2017/08/24/us/af
firmative-action.html (last visited 3/24/2021); see
Jason R. Riley, Please Stop Helping Us (Encounter
30
Books 2014) (affirmative action has resulted in fewer
black college graduates).
Harvard and other elite colleges should instead
use their enviable resources to work with local
government entities and community groups to bolster
early education in communities where K-12
resources are deficient. See Matt Zalasnick, How
Colleges Partner With K-12 On Student Success,
University Business, Oct. 17, 2019, found at
https://universitybusiness. com/ colleges-partner-k12-student-success/ (last visited 2/27/2021). Then,
they will be contributing to a solution instead of
making things worse by obfuscating the root causes
of the problem.
IX.
CONCLUSION
Harvard’s use of race stigmatizes and causes
grave and irreparable harm to individual applicants
and to the entire Asian American community. Over
60 years ago, in Brown v. Board of Education, 347
U.S. 483, this Court recognized the inherent injury to
individuals when schools admit students on the basis
of race, and found that such discrimination was
unlawful, whatever the stated justification. That
same reasoning should apply here today.
Accordingly, this Court should grant certiorari.
31
Respectfully submitted,
Lee C. Cheng
Director and Secretary
Asian American Legal
Foundation
11 Malta Street
San Francisco, CA 94131
leechcheng@gmail.com
Tel: (510) 238-9610
Fax: (510) 977-5127
Counsel for Amicus
Curiae The Asian
American Legal
Foundation
Gordon M. Fauth, Jr.
(counsel of record)
Litigation Law Group
1935 Addison St., Ste. A
Berkeley, CA 94704
gmf@classlitigation.com
Tel: (510) 238-9610
Fax: (510) 977-5127
Counsel for Amici Curiae
The Asian American
Coalition for Education
and The Asian American
Legal Foundation
1a
Appendix A
1. 1441 Manufactured-Home Residents
Association
2. 80-20 Initiative DC Chapter
3. ACP Foundation
4. America GanSu Friendship Association
5. American Asian Contractor Association
6. American Chinese Art Collector Association
7. American Chinese Culinary Foundation
8. American Chinese Medicine Association
9. American Coalition for Equality
10. American Entrepreneur Associations
11. American Fujian Hinhou Association
12. American Hindu Coalition
13. American Langqi Student Association
14. American Society of Engineers of Indian
Origin-NCC
15. American Sports Development Committee
16. American WZ Education Foundation
17. Asian American Civic Engagement Alliance
18. Asian American Cohesion Foundation
19. Asian American Community Association
20. Asian American GOP Coalition
21. Asian American Rights Association
22. Asian American Women Empowerment
23. Asian Americans Against Affirmative Action
24. Asian Americans for Equal Rights
25. Asian Culture Alliance
26. Asian Pacific American Task Force of
Maryland
2a
27. Asian Pacific Islander American Public Affairs
Association - Utah Chapter (APAPA-UTC)
28. Asian Parents for Educational Excellence
29. AsianAmericanVoters.org
30. Asians Not Brainwashed by Media
31. Association for Education Fairness
32. Associations for Justice
33. Austin Chinese Professional Association
34. Bay Area Homeowner Network
35. Beijing Association of Northern California
36. Better Milpitas
37. Boston Forward Foundation
38. Brookline Asian American Foundation
39. Brooklyn On Fun Association U.S.A.
40. California Association of Scholars
41. California Singles Club
42. Cambridge Center For Chinese Culture
43. Carolinas Asian American Alliance
44. Cast Vote
45. CeeHuang Daoist RC
46. Center for Chinese Learning at Stony Brook
47. CHESSanity
48. China Rainbow Network
49. Chinese American Alliance
50. Chinese American Alliance For Trump
51. Chinese American Association of Bedford
52. Chinese American Association of Orange
County
53. Chinese American Association of the Andovers
54. Chinese American Association of Tulsa
3a
55. Chinese American Citizens Alliance (CACA
Boston Lodge)
56. Chinese American Citizens Alliance-Greater
San Gabriel Valley Lodge
57. Chinese American Civic Action Alliance
58. Chinese American Economic & Culture
Association
59. Chinese American Equalization Association
(HQH)
60. Chinese American Heritage Association
61. Chinese -American Nail Salon Association
62. Chinese American Parent Association of
Howard County
63. Chinese American Parent Association of
Loudoun County Virginia
64. Chinese American Parents Association of
Montgomery County
65. Chinese American Parents Association of
Northern Virginia
66. Chinese American Professional Development
Association
67. Chinese American Republicans of
Massachusetts
68. Chinese Americans of Lexington (CALex)
69. Chinese Americans of Massachusetts
70. Chinese Americans Sport Shooting Club
71. Chinese Association for Progress and Equality
72. Chinese Association of Northwest Arkansas
73. Chinese Association of Science, Education and
Culture of South Florida (CASEC)
74. Chinese Association, Inc.
4a
75. Chinese Civil Rights League, Inc.
76. Chinese Club of Western New York
77. Chinese Freemasons (NY)
78. Chinese Freemasons in Las Vegas
79. Chinese Friendship Association of Baton
Rouge
80. Chinese School Andover
81. Chinese Social Service Center
82. Chinese Sports Association Brooklyn
83. Coalition of Asian Americans for Civil Rights
84. Columbus Chinese association
85. Confucius Foundation
86. Connecticut Parent Union
87. Councils of Maryland Korean Churches
88. Dallas Fort Worth Chinese Alliance (DFWCA)
89. Dallas Fort Worth Political Action Committee
(DFWPAC)
90. Denver Chinese School
91. Education Advancement Fund International
92. Education Policy Observers
93. Emerald Parents Association
94. Evergreen Chinese American Association
(ECAA)
95. Excellent Chinese School
96. Florida Acupuncture Association
97. Florida Guangdong Community Federation
98. Flying Fox Chinese Sports Council
99. Fujian Business Association
100. Fuzhou Tingjiang Huaqiao Alumni
Associated USA
101. Global Exchange Education Center
5a
102. Global Minority women Empowerment
Organization
103. Global Organization of People of India Origin
(GOPIO)
104. Greater Boston Fudan Alumni Association
105. Greater Charlotte Chinese American
Conservatives
106. Greater Miami Asian Business Coalition
107. Greater Orlando Chinese Professionals
Association
108. Greater Philadelphia Self Defense
Association
109. Greater San Antonio Chinese Society of
Professionals
110. Greater Shanghai Alliance of American
111. Greensboro Chinese Association
112. Guangxi University Alumni Association of
America
113. HaiNan Association of America
114. Harrison Chinese Association
115. Help for Asian Americans With Addictions
116. Henan Chinese Associates USA Inc.
117. Hotel Chinese Association of USA
118. Houston Chinese Alliance
119. Houston Guangxi Association
120. Huagen Chinese School
121. Huaxia Chinese School of Greater New York
122. Huaxie Edison Chinese School
123. Huazhong University of Sci and Tech Alumni
Association of Southern California
124. Hubei Association of Florida
6a
125. Hubei Fellow Association of Washington
Metropolitan Area
126. Hunan Benevolent Association of America
127. iBridge Foundation Inc
128. INDOUS Chamber of Commerce of NE
Florida
129. Inland Chinese-American Alliance
130. International Society for Environmental
Education
131. Jilin Jilin Fellowship Group
132. Korean American Association of Arkansas
133. Korean American Association of Austin
134. Korean American Association of Chicago
135. Korean American Association of Cleveland
136. Korean American Association of Flushing
137. Korean American Association of Huston
138. Korean American Association of Killeen
139. Korean American Association of Los Angeles
140. Korean American Association of Michigan
141. Korean American Association of Minnesota
142. Korean American Association of Nevada
143. Korean American Association of New Jersey
144. Korean American Association of New Mexico
145. Korean American Association of New
Orleans
146. Korean American Association of Ohio
147. Korean American Association of Peninsula,
VA
148. Korean American Association of
Pennsylvania
149. Korean American Association of Richmond
7a
150. Korean American Association of Texas
151. Korean American Association of Washington
152. Korean American Association of Washington
Metropolitan Area
153. Korean American Chamber of Commerce of
San Diego County
154. Korean American Community of Metro
Detroit
155. Korean American Greater Philadelphia
Scholarship Foundation
156. Korean Association of Capital Region
157. Korean Association of Maryland
158. Korean Association of San Francisco CA
159. Korean Association Savannah
160. Lawrence Chinese Christian Fellowship
161. Legal Immigrants for America
162. Livingston Chinese Association
163. Long Island Chinese American Association
(LICAA)
164. Long Island School of Chinese
165. Maryland Chinese American Network (MDCAN)
166. Massachusetts Beijing Chinese Language
School
167. Michigan Chinese Alliance
168. Michigan Chinese Conservatives Alliance
169. Mid-Missouri Chinese Association
170. Millburn Short Hills Chinese Association
171. Minnesota Chinese Association
172. Montgomery County GOP Asian American
Association (MCGOP-AAA)
8a
173. Montgomery County Korean Association
174. Morris Chinese Academy
175. Nanjing University Alumni Association
Florida Chapter
176. National Council of Chinese Americans
(NCCA)
177. National Federation of Indian American
Associations
178. National Republican Asian Assembly
179. New Hyde Park Chinese Association
180. New Jersey Chinese Community Center
181. New Jersey Double Eagle Shooting Team
182. New York Chinese United League
183. New York City Residents Alliance
184. New York Community League
185. New York Fushan Association Inc.
186. New York Hai Nan Townsmen
187. New York Shandong Association
188. Newton Alliance of Chinese Americans
189. North America Nanning Association
190. North American Maple Cultural Center of
Florida
191. Northern California Chinese Culture
Athletic Federation (NCCCAF)
192. Northern California Shaanxi Association
193. Northern New Jersey Huaxia Chinese School
194. NY Laundromat Business Association
195. Orange County Chinese Ladies Group
196. Orange County Herald Center
197. Orlando Chinese Association
9a
198. Overseas Alumni Association of Shanghai
Second Medical University (SJTUMS)
199. Pakistan Policy Institute
200. Pakistani American Volunteers
201. Patriotic Legal Immigrants USA, Inc
202. Philadelphia Tristate Chines American
Association (PTCAA)
203. Phoenix Us-China Arts and Education
Exchange Center
204. Plano Table Tennis Club
205. Reading Chinese Association
206. Rotary Club of Huaren in Silicon Valley
207. San Antonio Chinese American Citizens
Alliance
208. San Diego Asian Americans For Equality
209. SCV Chinese School
210. Shangder Academy of Classical Chinese
211. Shanxi Association of Silicon Valley
212. Sichuan University Alumni Association of
Greater New York
213. Silicon Valley Foundation for Better
Environment
214. Silicon Valley Women Alliance
215. Sino -America New York Brooklyn Archway
Association Corp.
216. South Florida Chinese Business Association
217. Southern Connecticut Chinese School
218. Sunshine Chinese Language and Art School
219. Sunshine Homes of Ohio
220. Surgeon Volunteers
221. SVCA Foundation
10a
222. Texas Guizhou Association
223. The American Chinese School of Great
Detroit
224. The Center for Race and Opportunity
225. The Chinese Nail Salon Association of East
American
226. The Federation of World Korean Woman
Association
227. The Greater San Antonio Chinese Chamber
of Commerce
228. The Midwest Hunan Chamber of Commerce
229. The Orange Club
230. The Shanghai Association of America, Inc.
231. Tingling High School Alumnus Association of
America
232. TLG Family Foundation
233. TOC Foundation
234. Tri Valley Asian Association
235. Tsinghua Club of Florida, Inc
236. U.S. Bei Shuang Association
237. U.S. Min Hou General Association
238. U.S. Sichuan Chongqing General Association
& General Commerce Group, Inc.
239. United Chinese Association of Brooklyn
240. United Chinese Association of Utah
241. United Community Oriented Community
Development Association (UCODA)
242. United Federation of Indo Americans of
California
243. United for a Better Community (UBC)
244. University of California Alumni Association
11a
245. Upper Dublin Chinese American Association
246. Urban United Association
247. US Asian American Culture & Art
Association
248. US Chinese Learning Foundation
249. US Shandong Fellowship Association
250. US-China Friendship City Network
251. USTC Alumni Association of Southern
California
252. Utah Chinese Golden Spike Association
253. UTPGE Chinese Alumni Association
254. Venus Chinese school
255. Virginia Korean American Society
256. Washington DC Chinese Network
257. Washington RiZing Economics And Fintech
Educational Organization
258. WEL Education Group
259. West Windsor-Plainsboro Education Support
Association
260. Westlake Chinese Culture Association
261. Women's Charity Foundation
262. World Hindu Council of America
263. Xi'an Jiaotong university alumni association
of Northern California
264. Xiangtan University Alumni Association of
North America
265. Youth American Chinese Commerce
Association
266. Zhengyuan Culture Bridge
267. ACES Learning Center
268. Allstar Institute
12a
269. America Earlier Education Center LLC
270. CodingKids
271. Denver Chinese School
272. Eastern Art Academy
273. First Han International Language School
274. Gauss Academy of Mathematical Education
275. HuaYi Education
276. Ivy Prep
277. Koo Chinese Academy
278. Lead for Future Academy
279. Millburn Institute of Talent
280. Orange international Kindergarten
281. Palm Beach Chinese Academy
282. Student Partner In Learning
283. Wei Bo Learning Organization
284. Youth Education Success
285. Yuyue Chinese Tutoring, LLC
286. AE & LY MEDICAL ASSOCIATES, PLLC
287. Alpha internal medicine PC
288. Amei Inc
289. ANJ International
290. Bergen Chinese Group
291. Bluesea International
292. Bowen Capital LLC
293. Customized App
294. D Asian Media
295. D4Sue Inc
296. DMC Corporation
297. Dynamicure Biotech
298. Empower Management Inc.
299. Environment Online Instruments LLC
13a
300. Epoch Investment LLC
301. EZ Health
302. Global Life System Extension, Inc.
303. Global Hanin Yendai Inc
304. Green Bees Multicultural LLC
305. Hallmark Health
306. Harrison Station LLC
307. HZ Precision
308. iNegotiate LLC
309. J Real Estate
310. Jade Springs
311. J-Cheng Gene LLC
312. JIAHERB INC
313. JYC holdings, LLC
314. KAJI & ASSOCIATES
315. LAVA Electronics Inc.
316. Law Offices of Michael W. Lu, LLC
317. Lonma Leather LLC
318. Luceon Infotech LLC
319. Metro Star Media
320. New Jersey International Students Service,
LLC
321. NJ Chinese Media LLC
322. Noah Decoration LLC
323. Noble Tree Publishing Inc.
324. North American Economic Herald
325. Pacific Vision LLC
326. Preventive Medicine Institute
327. Project and Knowledge Concepts
328. Promising Analytical Consisting
329. Prosperity Asset Management LLC
14a
330. Queenberry, Inc
331. Redwood Technique
332. Resources International Care of America inc
333. Sally's Group
334. Star River Inc.
335. Stephany Yingxin Mai PLLC
336. The First Wang, Inc
337. Tianjin LLC
338. Tift Gymnastics
339. Top Winner International Inc.
340. Tracy Leung, PsyD Private Practice
341. University Wireless LLC
342. V Care Home Health Services
343. Welcome Family Medicine, PA
344. Wen's Pearls
345. Yi-radio
346. Zhu Law Office PLLC
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.