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

In the Supreme Court of the United States

_________

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

PRESIDENT AND FELLOWS OF HARVARD COLLEGE,

_________

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the First Circuit

_________

BRIEF OF HAMILTON LINCOLN LAW

INSTITUTE AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

_________

THEODORE H. FRANK

(Counsel of Record)

ANNA ST. JOHN

HAMILTON LINCOLN LAW

INSTITUTE

1629 K Street NW

Suite 300

Washington, DC 20006

(703) 203-3848

ted.frank@hlli.org

RULE 26.1 CORPORATE DISCLOSURE

STATEMENT

Hamilton Lincoln Law Institute (“HLLI”) is an IRS

§ 501(c)(3) non-profit corporation incorporated under the

laws of Washington, DC. HLLI does not issue stock and

is neither owned by nor is the owner of any corporate entity, in part or in whole. HLLI is operated by a volunteer

Board of Directors.

TABLE OF CONTENTS

Rule 26.1 Corporate Disclosure Statement ................. i

Table of Contents........................................................ ii

Table of Authorities ................................................... iii

Statement of Interest .................................................. 1

Summary of Argument ................................................ 2

Argument ..................................................................... 3

Grutter is a grudging exception to the

II.

Race-conscious decisions spread,

infecting areas off limits under judicial

precedent, under aegis of Grutter’s

language............................................................... 5

well-defined rule that group

classifications based on race are

prohibited in all but the most narrowly

tailored instances. ............................................... 3

A. Universities discriminating on the

basis of race in allocating postadmission honors. ......................................... 5

B. K-12 school systems reincorporating race into school

assignments. ................................................. 8

C. Courts discriminating on the basis

of race in appointing class counsel. ............ 10

D. Private businesses adopting

“diversity” as justification for

discriminating on the basis of race

in hiring and contracting. ........................... 12

Conclusion.................................................................. 15

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Adarand Constructors, Inc. v. Peña,

515 U.S. 200, 235 (1995) ..................................

Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of the Int’l Union of Operating Eng’rs, Local 15, 15A,

15C & 15D v. Tightseal Constr., Inc.,

2018 U.S. Dist. LEXIS 138041, 2018 WL

3910827 (S.D.N.Y. Aug. 14, 2018) .................

In re Blackbaud, Inc., Customer Data

Breach Litig.,

3:20-mn-02972-JMC (D.S.C.)) .......................

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) .........................................

Brown v. J. Kaz., Inc.,

581 F.3d 175 (3rd Cir. 2009) ..........................

City of Providence v. AbbVie Inc.,

2020 U.S. Dist. LEXIS 189472, 2020 WL

6049139 (S.D.N.Y. Oct. 13, 2020) .................. 10, 11

Coalition for TJ v. Fairfax County Sch.

Board,

No. 1:21-cv-296 (E.D. Va.) .............................

In re Dynex Capital, Inc. Sec. Litig.,

2011 U.S. Dist. LEXIS 22484, 2011 WL

781215 (S.D.N.Y. Mar. 7, 2011) .....................

TABLE OF AUTHORITIES—Continued

Page(s)

Faculty, Alumni, & Students Opposed to Racial Preferences v. New York Univ.,

No. 20-1508 (2d Cir.) ......................................

Grutter v. Bollinger,

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

In re J.P. Morgan Chase Cash Balance

Litig.,

242 F.R.D. 265 (S.D.N.Y. 2007) .....................

Martin v. Blessing,

571 U.S. 1040 (2013) ....................................... 1, 10

Marsh v. Bd. of Ed.,

581 F. Supp. 614 (E.D. Mich. 1984) ..............

In re Oil Spill by Oil Rig Deepwater Horizon,

295 F.R.D. 112 (E.D. La. 2013) .....................

Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1,

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

3, 9,

Pub. Employees’ Ret. Sys. of Miss. v. Goldman Sachs Group, Inc.,

280 F.R.D. 130 (S.D.N.Y. 2012)......................

Ramos v. Louisiana,

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

TABLE OF AUTHORITIES—Continued

Page(s)

In re Robinhood Outage Litig.,

No. 20-cv-01626-JD (N.D. Cal. July 14,

2020) .................................................................

Schurr v. Resorts Int’l Hotel, Inc.,

196 F.3d 486 (3rd Cir. 1999) ..........................

SEC v. Adams,

2018 U.S. Dist. LEXIS 93837, 2018 WL

2465763 (S.D. Miss. June 1, 2018) .................

U.S. Steelworkers of Am. v. Weber,

443 U.S. 193 (1979) .........................................

Vill. Green at Sayville, LLC v. Town of Islip,

2019 U.S. Dist. LEXIS 167177, 2019 WL

4737054 (E.D.N.Y. Sept. 27, 2019) ................

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267, 275 (1986) .................................

STATUTES

42 U.S.C. § 1981 ................................................... 12, 13

OTHER AUTHORITIES

Hans Bader, Is the Cure for Racism Really

More Racism?, Wall St. J. (Oct. 12, 2020) ....

Boston Latin, Public School Review .................

TABLE OF AUTHORITIES—Continued

Page(s)

Amanda Bronstad, MDL Judge Taps “Most

Diverse Leadership Team Ever” in Data

Breach Class Action, National L. J. (Mar.

3, 2021) .............................................................

Ruiqi Chen, Coke GC Tired of “Good Intentions,” Wants Firm Diversity Now,

Bloomberg Law (Jan. 28, 2021) .....................

Editors, Canceled: A Running List of the

People, Places, and Things That Have

Been Toppled as the Country Reckons with

Racism, Los Angeles Magazine (Jun. 11,

2020) .................................................................

Gallup’s most admired man and woman poll,

Wikipedia (Mar. 28, 2021) ..............................

John Hollis, President Washington announces membership to the Anti-Racism

and Inclusive Excellence Task Force,

George Mason University (Sep. 3, 2020).......

Ibram X. Kendi, How to Be an Antiracist .......

Curt Levey, The Legal Implications of Complying with Race and Gender-Based Client

Preferences, 8 Federalist Soc’y Rev. 14

(2007) ................................................................

David K. Li, San Francisco School Board

Eliminates Academic Admission Standards for Renowned School, NBC News

(Feb. 10, 2021) .................................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Glenn Loury, Unspeakable Truths about Racial Inequality in America, Quillette (Feb.

10, 2021) ...........................................................

McDonald's Overhauling Workplace Culture

to Meet Diversity Goals, CBS News (Feb.

18, 2021) ...........................................................

Ian Millhiser, Federal Judge Slams Justice

Alito’s Lack Of ‘Understanding Or Interest’ In Race Or Gender Equality,

ThinkProgress (Dec. 9, 2013) ........................

Hannah Natanson, Fairfax School Board

Switches to ‘Holistic Review’ Admissions

System for Thomas Jefferson High School,

Wash. Post (Dec. 17, 2020) .............................

Noah Rothman, Searching for the ‘Anti’ in

‘Antiracism,’ Commentary (Dec. 21, 2020) .

Aaron Sibarium, Yale Law Students Said a

Top Journal was Racist. Admissions Data

Suggest Otherwise, The Washington Free

Beacon (Feb. 21, 2021) ...................................

Sam Skolnik, Novartis Demands Outside

Counsel Make Tough Diversity Guarantees, Bloomberg Law (Feb. 12, 2021) ...........

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Meg Woolhouse, Boston Public Schools Suspends Test for Advanced Learning Classes; Concerns About Program’s Racial

Inequities Linger, GBH News (Feb. 26,

2021) .................................................................

Alex Zimmerman & Monica Disare, De

Blasio’s Specialized School Proposal

Spurs Outrage in Asian Communities,

Chalkbeat New York (Jun. 5, 2018) ..............

STATEMENT OF INTEREST

Hamilton Lincoln Law Institute (“HLLI”) is a publicinterest law firm dedicated to protecting free markets,

free speech, limited government, and separation of powers, and against regulatory abuse and rent-seeking. 1 Its

subunit, the Center for Class Action Fairness represents

class members pro bono in class actions where class counsel employs unfair class-action procedures to benefit

themselves at the expense of the class. HLLI has emerged

as America’s leading defender of consumers and shareholders against abusive class-action settlements, winning

hundreds of millions of dollars for these stakeholders, and

setting precedents that safeguard consumers, investors,

courts, and the public.

In its litigation practice HLLI has directly confronted,

and unsuccessfully sought this Court’s intervention to

halt, 2 the pervasive expansion of race-conscious decisionmaking into areas outside university admissions by those

insisting on the propriety of that action using the language

of Grutter v. Bollinger. 3

Pursuant to Rule 37.2(a), all parties have consented to this brief.

Counsel of record for all parties received notice at least 10 days prior

to the due date of the Amicus Curiae’s intention to file this brief and

responded with consent in writing.

Pursuant to Rule 37.6, Amicus Curiae affirms that no counsel for

a party authored this brief in full or in part, and that no person or

entity other than Amicus or their counsel financially contributed to

preparing or submitting this brief.

Martin v. Blessing, 571 U.S. 1040 (2013).

539 U.S. 306 (2003).

SUMMARY OF ARGUMENT

HLLI shares petitioner’s conclusion that Grutter has

generated no legitimate reliance interests. It could not

have done so, because when precedent “undermines the

fundamental principle of equal protection as a personal

right,” it is “the principle,” not the decision, which “must

prevail.” Adarand Constructors, Inc. v. Peña, 515 U.S.

200, 235 (1995). It cannot have generated reliance interests, because Grutter itself required that the “race-conscious admissions policies” that it authorized “must be

limited in time” and should face “sunset provisions” forcing regular “reviews to determine whether racial preferences are still necessary,” all with the “expect[ation] that

25 years from now, the use of racial preferences will no

longer be necessary.” Grutter, 539 U.S. at 342, 343.

What this Court authorized in Grutter as a temporary,

grudging exception to America’s ideals and generally applicable law of Equal Protection has “caused significant …

real-world consequences.” Ramos v. Louisiana, 140 S. Ct.

1390, 1415 (2020) (Kavanaugh, J., concurring in part) (discussing reasons to overrule precedent). In many ways its

effect has metastasized into a threat blooming across the

legal landscape, the economy, and the culture as a whole.

Despite its language to the contrary, Grutter has signaled

beyond the university-admission context that it may be legally permissible for government actors to discriminate on

the basis of race.

The Court should take the opportunity before it to excise that threat at its root and begin to rehabilitate American ideals and constitutional law by overruling Grutter

and thus confining it as a temporary aberration from

equal-protection principles.

ARGUMENT

Grutter is a grudging exception to the well-defined

rule that group classifications based on race are

prohibited in all but the most narrowly tailored instances.

While Grutter “endorse[d the] view that student body

diversity is a compelling state interest that can justify the

use of race in university admissions,” 539 U.S. at 325, one

must pause to notice exactly how much Justice O’Connor

(and the Court’s decisions since Grutter) did wall in that

holding.

Grutter pays lip-service to the general rules the courts

apply to all racial policy-making, reiterating that (a) “the

Fourteenth Amendment protects persons, not groups,”

leaving “all governmental action based on race—a group

classification long recognized as in most circumstances irrelevant and therefore prohibited--…subject to detailed

judicial inquiry to ensure that the personal right to equal

protection of the laws has not been infringed”; and (b)

“such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” Grutter, 539 U.S. at 326 (cleaned up).

Even so, Grutter went on to approve grudgingly the

University of Michigan Law School’s racially discriminatory admissions program, because of a host of specific requirements that it purported to find Michigan to have

satisfied. First, Grutter approved the program not as

serving an interest in diversity-for-its-own-sake, but only

as advancing a purportedly legitimate interest in obtain-

ing for students the alleged educational benefits of maintaining a racially diverse student body. Grutter, 539 U.S.

at 328; see Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701, 729 (2007) (reiterating that “racial balancing” is not a compelling state interest). It did so,

only on finding that Michigan’s program was narrowly tailored to advance that end, specifically noting (and requiring) that it: (a) sought an amorphous critical mass, rather

than a specific number of students of particular races,

Grutter, 539 U.S. at 335–36; (b) demonstrably followed

from the “serious, good faith consideration of workable

race-neutral alternatives that will achieve the diversity

the university seeks,” id. at 339; (c) did “not unduly harm

members of any racial group,” so that no “rejected applicant will … have been foreclosed from all consideration …

simply because he was not the right color or had the wrong

surname,” id. at 341 (cleaned up); and (d) “be limited in

time” with a “durational requirement” forcing “periodic

reviews to determine whether racial preferences are still

necessary to achieve” the purported educational benefits

of racial balancing, id. at 342.

Because of these limits, the Court could persuade itself

that it was doing no harm to the larger canvas of American

constitutional law. Acting on what it styled the “long recognized … important purpose of public education,” Grutter purported to grant “universities” a “special niche in

our constitutional tradition,” id. at 329, rather than establishing that any other institution could similarly discriminate on the basis of race, whenever its insiders decided it

would aid their institutional purpose.

II. Race-conscious decisions spread, infecting areas

off limits under judicial precedent, under aegis of

Grutter’s language.

But however carefully the Court sought to cabin off its

precedent in Grutter, the “diversity” rationale for racial

discrimination has refused to stay put. Other actors, disregarding Grutter’s limits, have taken it as a warrant to

bring back racial discrimination in field after field where

federal law and this Court’s precedents have long made

clear that it is forbidden. The exception is swallowing the

rule, reaching back to infect and defeat even the guaranties of our oldest post-Civil-War, Civil-Rights protections.

Actors have brought racially discriminatory decisionmaking to internal decisions of America’s universities

(where their choices are unshielded by Grutter’s narrow

allowance for admissions departments). They have returned racial considerations to the assignment of students

to K-12 public schools. Federal courts have even adopted

a “diversity” justification for discrimination in appointing

class counsel. And now, private actors have even returned

to announcing that they will refuse to contract with parties

or alter the terms of their contracts with parties, unless

those parties discriminate on the basis of race in their hiring, firing, promotional, and assignment decisions.

Such is the fruit of Grutter across the American legal

landscape.

A. Universities discriminating on the basis

of race in allocating post-admission

honors.

Grutter found that universities’ interest in providing

the putative educational benefits of a diverse student body

was enough to allow Michigan’s race-conscious admissions

program to satisfy strict scrutiny. It did not more broadly

authorize universities to discriminate on the basis of race.

Universities do not appear to have noticed the difference,

though. A proliferation of stories suggests ongoing violations of the requirements of Title VI (and, for public

schools, the 14th Amendment) by schools engaging in

race-conscious, on-campus decisions untethered to admissions standards and the approved goal of achieving diverse demographics in student bodies as a whole.

For example, just last month, George Mason University announced the proposal of a racially-discriminatory

hiring program geared toward obtaining a faculty and

staff reflective of the demographics of its student population. The public university proposed this program, despite

this Court having specifically ruled that schools may not

discriminate in hiring to produce faculty-student demographic match. 4 “With the issues of diversity, inclusion,

equity and social justice at the forefront of national

events,” the school proposed race-based hiring as part of

a campaign “to become a national exemplar of anti-racism 5

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275 (1986) (plurality opinion) (rejecting justification of firing-decision on basis of race,

because it “allows the [school] to engage in discriminatory hiring and

layoff practices long past the point required by any legitimate remedial purpose. Indeed, by tying the required percentage of minority

teachers to the percentage of minority students, it requires just the

sort of year-to-year calibration the Court stated was unnecessary.”).

One should note that “anti-racism” is an Orwellian term. As propounded by leading critical race theorist Ibram X. Kendi, who baldly

states in his best-selling book How to Be an Antiracist: “‘The only

remedy to racist discrimination is antiracist discrimination. The only

remedy to past discrimination is present discrimination…. The only

remedy to present discrimination is future discrimination.’” Noah

Rothman, Searching for the ‘Anti’ in ‘Antiracism,’ Commentary

(Dec. 21, 2020). “The ‘discrimination’ critical race theorists want to

and inclusive excellence.” 6 It did so, with no apparent consideration of the Constitutional question raised or this

Court’s on-point precedent.

Also last month, the Yale Law Journal (a subdivision of

federal-funding recipient Yale University, with no separate legal existence), revealed that its membership selection process—which uses “diversity statement[s]”—

results in the election of students of different races at

vastly disproportionate rates. Aaron Sibarium, Yale Law

Students Said a Top Journal was Racist. Admissions

Data Suggest Otherwise, The Washington Free Beacon

(Feb. 21, 2021). While only discovery could confirm further, the disclosed data suggests that the journal membership is intentionally discriminating on the basis of race in

choosing whom to admit to its board, in likely violation of

Title VI. (Despite this set of racial preferences, activists at

the school demand even more in the way of racial preferences. Id.) Indeed, Yale Law Journal’s admissions about

the racial disparities in its selection rates bring to mind

similar allegations in pending Second Circuit litigation,

‘remedy,’ through still more discrimination, is any failure to meet a

racial quota. As Mr. Kendi puts it, ‘When I see racial disparities, I see

racism.’” Hans Bader, Is the Cure for Racism Really More Racism?,

Wall St. J. (Oct. 12, 2020).

John Hollis, President Washington announces membership to

the Anti-Racism and Inclusive Excellence Task Force, George Mason University (Sep. 3, 2020), https://www2.gmu.edu/news/202009/president-washington-announces-membership-anti-racism-andinclusive-excellence-task (last visited Mar. 3, 2021) (emphasis added).

challenging the legality of alleged racial selection criteria

for membership on a law journal of New York University.7

B. K-12 school systems re-incorporating

race into school assignments.

Outside the ambit of Grutter’s “special niche” for universities, a spate of public school systems has recently altered their policies for placement of students, because of

concerns over the race of the students placed in particular

schools. In Fairfax, 8 Boston, 9 San Francisco, 10 and New

See Faculty, Alumni, & Students Opposed to Racial Preferences

v. New York Univ., No. 20-1508 (2d Cir.).

Hannah Natanson, Fairfax School Board Switches to ‘Holistic

Review’ Admissions System for Thomas Jefferson High School,

Wash. Post (Dec. 17, 2020) (citing “[d]iscontent over the demographics” of this “70 percent Asian” school as justification for

move). The move is the subject of litigation for discrimination against

Asian-Americans. Coalition for TJ v. Fairfax County Sch. Board, No.

1:21-cv-296 (E.D. Va.).

Meg Woolhouse, Boston Public Schools Suspends Test for Advanced Learning Classes; Concerns About Program’s Racial Inequities

Linger,

GBH

News

(Feb.

26,

2021),

https://www.wgbh.org/news/education/2021/02/26/citing-racial-inequities-boston-public-schools-suspend-advanced-learning-classes (last

visited Mar. 3, 2021) (quoting Superintendent Cassellius as explaining

move as part of “work we have to do in the district to be antiracist”);

for current school demographics, including 29% Asian American enrollment, see Boston Latin, Public School Review, https://www.publicschoolreview.com/boston-latin-profile (last visited Mar. 3, 2021).

David K. Li, San Francisco School Board Eliminates Academic

Admission Standards for Renowned School, NBC News (Feb. 10,

2021) (describing Lowell High School as “50.6 percent Asian,” and

quoting San Francisco Unified School District’s passed resolution

abandoning use of grades and standardized tests for Lowell High admission as justified by these criteria having “created a school that

York, 11 public-school administrators concerned by the

number of Asian-Americans qualifying for seats at prestigious magnet schools have chosen to do away with quantifiable metrics for admission, usually in favor of “holistic”

processes.

Here, too, the Court has emphasized that the Constitution does not countenance racially motivated decisions of

which students may attend which elementary and secondary schools. “The Court in Grutter expressly articulated

key limitations on its holding— … noting the unique context of higher education—but these limitations were

largely disregarded by the lower courts in extending

Grutter to uphold race-based assignments in elementary

and secondary schools. The present cases are not governed by Grutter.” Parents Involved in Cmty. Sch., 551

U.S. at 725; see also Brown v. Bd. of Educ., 347 U.S. 483

(1954).

That clarity has not stopped decision-makers citing the

importance of “diversity” and “demographics” to their enterprise and following what they apparently misperceive

to be the meaning of Grutter into the morass of racial allocations.

does not reflect the diversity of SFUSD students and perpetuates

segregation and exclusion”).

Alex Zimmerman & Monica Disare, De Blasio’s Specialized

School Proposal Spurs Outrage in Asian Communities, Chalkbeat

https://ny.chalkNew

York

(Jun.

2018),

beat.org/2018/6/5/21105142/de-blasio-s-specialized-school-proposalspurs-outrage-in-asian-communities (last visited Mar. 3, 2021) (citing

subject schools as having 62% Asian American enrollment and goal of

admissions policy change as “to boost diversity at the city’s elite high

schools” by “enroll[ing] more black and Hispanic students”).

C. Courts discriminating on the basis of

race in appointing class counsel.

Closest to home for HLLI, even courts—which should

know best the illegality of treading these grounds—have

followed the culturally received understanding of Grutter

into race-based allocations in the nominal service of “diversity.”

The Center for Class Action Fairness once asked this

Court to review a district court order forcing class-counsel

to discriminate in staffing legal matters on the basis of

race. Martin v. Blessing, 571 U.S. 1040. At that time, the

Court declined, with at least one Justice partially justifying that decision by reference to what he perceived as the

“highly unusual practice followed by one District Court

Judge,” the “uniqueness” of which “weigh[ed] against review by this Court,” despite being “hard-pressed to see

any ground on which [the judge’s] practice can be defended.” Id. at 1041-42 (Alito, J., respecting denial of writ

of certiorari). The judge in question was unapologetic,

even after this opinion. Ian Millhiser, Federal Judge

Slams Justice Alito’s Lack Of ‘Understanding Or Interest’ In Race Or Gender Equality, ThinkProgress (Dec. 9,

2013).

Unfortunately, in the years since the 2013 opinion, despite its warning, this legally indefensible practice is

hardly “unique.” Last fall, for example, a district court

judge in the Southern District of New York concluded that

the race and sex of potential class-counsel’s lawyers “is a

relevant factor for the [c]ourt,” as “[f]or well over a decade

now, the courts have emphasized the importance of diversity in their selection of counsel.” City of Providence v.

AbbVie Inc., 2020 U.S. Dist. LEXIS 189472, at *26, 2020

WL 6049139 (S.D.N.Y. Oct. 13, 2020). Judge Liman cited

examples from far-flung district courts in several circuits.

Id. (citing In re Robinhood Outage Litig., No. 20-cv01626-JD (N.D. Cal. July 14, 2020); SEC v. Adams, 2018

U.S. Dist. LEXIS 93837, 2018 WL 2465763, at *4 n.6 (S.D.

Miss. June 1, 2018); In re Oil Spill by Oil Rig Deepwater

Horizon, 295 F.R.D. 112, 137-38 (E.D. La. 2013); Public

Employees’ Ret. Sys. of Miss. v. Goldman Sachs Group,

Inc., 280 F.R.D. 130, 142 n.6 (S.D.N.Y. 2012); In re Dynex

Capital, Inc. Sec. Litig., 2011 U.S. Dist. LEXIS 22484,

2011 WL 781215, at *9 (S.D.N.Y. Mar. 7, 2011); In re J.P.

Morgan Chase Cash Balance Litig., 242 F.R.D. 265, 277

(S.D.N.Y. 2007)). District courts’ selection of class-counsel

based on “diversity” concerns rather than exclusively on

the Rule 23 factors show no sign of abating. 12

How could so many district courts get this so wrong?

Judge Liman again helpfully provides the answer, explaining that “[a] commitment to diversity is not a commitment to quotas. See Grutter v. Bollinger, 539 U.S. 306, 334,

123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (rejecting the use

of racial quotas in the race-conscious affirmative action

Amanda Bronstad, MDL Judge Taps “Most Diverse Leadership

Team Ever” in Data Breach Class Action, National L. J. (Mar. 3,

2021) (covering appointment in In re Blackbaud, Inc., Customer Data

Breach Litig., 3:20-mn-02972-JMC (D.S.C.)); Case Management Order No. 2 (Organizational Structure and Appointment of Counsel

Leadership), Blackbaud, Dkt. 14 at 5 (reflecting in “Appointment of

Plaintiffs’ Counsel Leadership” section that despite “[t]he court desir[ing] to appoint individuals, not firms,” it was “committed to the

diversity of MDL leadership. Given the multitude of claims … from

diverse Plaintiffs … diverse leadership is integral to the success of

these proceedings. The court also seeks to develop the future generation of diverse MDL leadership by providing competent candidates

with opportunities for substantive participation now.”).

context while recognizing a compelling interest in promoting diversity).” The lower courts, too, are using “diversity”

and Grutter’s presumptive blessing to justify allocating

benefits on the basis of race.

D. Private businesses adopting “diversity”

as justification for discriminating on

the basis of race in hiring and contracting.

The Civil Rights Act of 1866, America’s first civil rights

legislation pre-dating even Congress’s passage of the 14th

Amendment; as amended, it guarantees all Americans

“the same right” to “make and enforce contracts,” including “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981.

Save only for the narrow exceptions this Court has recognized, 13 these guarantees bar employers (including law

firms) from discriminating on the basis of race in their hiring, firing, assignments, and promotions of individuals. 14

U.S. Steelworkers of Am. v. Weber, 443 U.S. 193 (1979) (recognizing narrow exception to parallel provisions of Title VII of the Civil

Rights Act of 1964); Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d 486,

498-99 (3rd Cir. 1999) (treating Title VII and § 1981 claims as co-extensive in scope); Marsh v. Bd. of Ed., 581 F. Supp. 614, 619-26 (E.D.

Mich. 1984) (extending Weber to § 1981 claims) (vacated on appeal on

other grounds).

Curt Levey, The Legal Implications of Complying with Race

and Gender-Based Client Preferences, 8 Federalist Soc’y Rev. 14

(2007).

They also bar parties from discriminating in their contracting with corporations because of the race of their

counter-parties’ personnel. 15

And yet, citing the importance of “diversity,” major

American corporations have recently announced as policy

an intention to discriminate in their contracting because

of the race of their counterparties’ personnel. 16 Again, the

Brown v. J. Kaz., Inc., 581 F.3d 175, 181 (3rd Cir. 2009) (reversing dismissal of a contractor’s § 1981 claim and clarifying that statute

applies beyond employment scenarios); Vill. Green at Sayville, LLC

v. Town of Islip, 2019 U.S. Dist. LEXIS 167177, at *22, 2019 WL

4737054 (E.D.N.Y. Sept. 27, 2019) (denying motion to dismiss corporate plaintiff’s § 1981 claim against town whose allegedly racially motivated inaction rendered plaintiff’s contract unperformable);

Annuity, Welfare & Apprenticeship Skill Improvement & Safety

Funds of the Int’l Union of Operating Eng’rs, Local 15, 15A, 15C &

15D v. Tightseal Constr., Inc., 2018 U.S. Dist. LEXIS 138041, at *16*18, 2018 WL 3910827 (S.D.N.Y. Aug. 14, 2018) (denying motion to

dismiss corporate plaintiff’s § 1981 claim for termination of contract

allegedly because of race of plaintiff’s personnel).

McDonald's Overhauling Workplace Culture to Meet Diversity

Goals, CBS News (Feb. 18, 2021), https://news.yahoo.com/mcdonaldsoverhauling-workplace-culture-meet-024002414.html (last visited

Mar. 4, 2021) (reflecting announcement that company will tie executive compensation to the race of those working for those executives);

Sam Skolnik, Novartis Demands Outside Counsel Make Tough Diversity Guarantees, Bloomberg Law (Feb. 12, 2021),

https://news.bloomberglaw.com/us-law-week/novartis-demands-outside-counsel-make-tough-diversity-guarantees (last visited Mar. 4,

2021) (conditioning 15% of bills on firms staffing matters in compliance with “diversity” requirements, so demonstrating “commit[ment]

to being a leader in diversity and inclusion”); Ruiqi Chen, Coke GC

Tired of “Good Intentions,” Wants Firm Diversity Now, Bloomberg

Law (Jan. 28, 2021), https://news.bloomberglaw.com/business-andpractice/coke-gc-tired-of-good-intentions-wants-law-firm-diversity16

language employed in the announcements pegs these actions to Grutter’s widely perceived blessing of racial discrimination undertaken in the name of achieving

“diversity.”

***

Racism still exists, but we no longer live in the injustice

of Jim Crow America, which ended decades before Grutter. Since Grutter, America has elected an African-American president and an African-American vice-president;

indeed, major parties’ African-American nominees have

won three out of three national elections. Since Grutter,

African-Americans have won Gallup’s “Most Admired

Man” or “Most Admired Woman” annual poll fifteen times

in the last thirteen years. Gallup’s most admired man and

woman poll, Wikipedia (Mar. 28, 2021). Racial prejudice

against African-Americans is no longer even remotely socially acceptable; indeed, prominent media people lose

their jobs simply because they fail to be sufficiently supportive of the so-called antiracism movement. E.g., Editors, Canceled: A Running List of the People, Places, and

Things That Have Been Toppled as the Country Reckons

with Racism, Los Angeles Magazine (Jun. 11, 2020).

American icons like Coca-Cola and McDonald’s are so opposed to discrimination against African-Americans that

they are willing to risk violating the law to demonstrate

that opposition beyond lip service. America as a country is

blessedly past the point where African-Americans cannot

now (last visited Mar. 4, 2021) (among other items, conditioning payment of 30% of bills on firms staffing matters in compliance with “diversity” requirements, while also conditioning both future retentions

and placement on “Preferred Firm Panel” on compliance).

succeed because past discrimination has been inadequately remedied. “‘Structural racism’ isn’t an explanation, it’s an empty category.” Glenn Loury, Unspeakable

Truths about Racial Inequality in America, Quillette

(Feb. 10, 2021). Even under its own terms, it is time for

Grutter to end. “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Parents Involved in Cmty. Sch., 551 U.S. at 748.

CONCLUSION

All across the American legal landscape, actors share

the same misreading of Grutter and believe it to have created a “diversity-serving” exception stronger than the

Constitution’s general rule against race-based decisionmaking. But the Court never sought that broadened application and that Justice O’Connor affirmatively sought to

prevent it in writing Grutter. Grutter has not succeeded in

carving out a “special niche” for universities to engage in

otherwise forbidden race-based decision-making. Instead,

it has invited a systemic assault on America’s deeply cherished principles of equal protection. When combined with

the dramatic racial progress America has made in the last

two decades, it is time for Grutter’s self-envisioned sunset.

The petition for a writ of certiorari should be granted

to allow the Court to take that step.

Respectfully submitted,

March 31, 2021

Theodore H. Frank

(Counsel of Record)

Anna St. John

Hamilton Lincoln Law Institute

1629 K Street NW, Suite 300

Washington, DC 20006

(703) 203-3848

ted.frank@hlli.org

Counsel for Amicus Curiae

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.