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

Supreme Court briefDec 8, 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

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

PAMELA S. KARLAN

Principal Deputy Assistant

Attorney General

BRIAN H. FLETCHER

Deputy Solicitor General

JONATHAN C. BOND

Assistant to the Solicitor

General

NICOLAS Y. RILEY

ELIZABETH PARR HECKER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

Title VI of the Civil Rights Act of 1964, 42 U.S.C.

2000d et seq., prohibits discrimination based on race in

programs that receive federal financial assistance. This

Court has interpreted Title VI to prohibit “only those racial classifications that would violate the Equal Protection Clause” if employed by a state actor. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (citation omitted). And

the Court has held that the Equal Protection Clause allows state colleges and universities to consider applicants’ race if such consideration is narrowly tailored to

advance a compelling interest in the educational benefits

that flow from “student body diversity.” Id. at 325; see

id. at 322-343. The questions presented are:

1. Whether the court of appeals properly applied this

Court’s precedents in determining, based on the district

court’s factual findings affirmed on appeal, that Harvard

College’s admissions process does not violate Title VI.

2. Whether the Court should overrule its decision in

Grutter, along with its decisions in Regents of the University of California v. Bakke, 438 U.S. 265 (1978),

Fisher v. University of Texas, 570 U.S. 297 (2013), and

Fisher v. University of Texas, 136 S. Ct. 2198 (2016).

(I)

TABLE OF CONTENTS

Page

Statement ...................................................................................... 1

Discussion ...................................................................................... 9

A. The court of appeals’ application of this Court’s

precedents does not warrant further review .............. 10

B. This Court should not grant review to consider

overruling its precedents in this area .......................... 16

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

TABLE OF AUTHORITIES

Cases:

Allen v. Cooper, 140 S. Ct. 994 (2020) ............................... 17

Janus v. American Fed’n of State, Cnty., & Mun.

Emps., Council 31, 138 S. Ct. 2448 (2018) ................ 17, 18

Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1996) ...... 15

Fisher v. University of Texas:

570 U.S. 297 (2013) .....................................2, 10, 12, 13, 18

136 S. Ct. 2198 (2016) ...................................2, 8, 11, 18, 22

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

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271 (1949) .......................................................... 15

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

International Union, United Auto., Aerospace, &

Agric. Implement Workers of Am. v. Brock,

477 U.S. 274 (1986).............................................................. 21

Kimble v. Marvel Entm’t, LLC, 576 U.S. 446 (2015) ...... 22

Kyles v. Whitley, 514 U.S. 419 (1995) .................................. 15

Regents of the Univ. of California v. Bakke,

438 U.S. 265 (1978).............................................. 2, 12, 19, 22

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ......... 20

Taylor v. Riojas, 141 S. Ct. 52 (2020) .................................. 16

Taylor v. Sturgell, 553 U.S. 880 (2008) .............................. 21

(III)

Cases—Continued:

Page

United States v. Johnston, 268 U.S. 220 (1925).................. 15

Warth v. Seldin, 422 U.S. 490 (1975) ................................... 20

Constitution, statute, and rules:

U.S. Const.:

Art. III ................................................................................ 5

Amend. XIV (Equal Protection Clause) ................... 1, 21

Civil Rights Act of 1964, Tit. VI,

42 U.S.C. 2000d et seq........................................... 1, 4, 19, 21

42 U.S.C. 2000d.................................................................. 1

Fed. R. Civ. P. 23 ................................................................... 21

Sup. Ct. R. 10 ......................................................................... 16

In the Supreme Court of the United States

No. 20-1199

STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER

PRESIDENT AND FELLOWS OF HARVARD COLLEGE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is filed in response to the Court’s order inviting the Solicitor General to express the views of the

United States. In the view of the United States, the petition for a writ of certiorari should be denied.

STATEMENT

1. Title VI of the Civil Rights Act of 1964, 42 U.S.C.

2000d et seq., provides that “[n]o person in the United

States shall, on the ground of race, color, or national

origin, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.” 42 U.S.C. 2000d. Title VI prohibits “only those

racial classifications that would violate the Equal Protection Clause” if employed by a state actor. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (citation omitted); see

Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). The

Equal Protection Clause, in turn, permits racial classi(1)

fications “only if they are narrowly tailored to further

compelling governmental interests.” Fisher v. University of Texas, 570 U.S. 297, 309 (2013) (Fisher I ) (quoting Grutter, 539 U.S. at 326).

In Grutter, this Court held that the University of

Michigan Law School’s consideration of race in admissions satisfied that standard because it was narrowly

tailored “to further a compelling interest in obtaining

the educational benefits that flow from a diverse student body.” 539 U.S. at 343. In Fisher v. University of

Texas, 136 S. Ct. 2198 (2016) (Fisher II), the Court upheld the University of Texas’s limited consideration of

race in undergraduate admissions for the same reason.

Id. at 2214. The Court concluded that those two policies

were narrowly tailored in part because they afforded

“individualized consideration” to each applicant and

considered race “in a flexible, nonmechanical way,” as

“a ‘plus’ factor.” Grutter, 539 U.S. at 334; see Fisher II,

136 S. Ct. at 2207. Those features distinguished the policies at issue in Grutter and Fisher from the mechanical

bonuses and quotas the Court rejected in Gratz and Regents of the University of California v. Bakke, 438 U.S.

265 (1978).

2. This case concerns the admissions policies of Harvard College, a private institution that receives federal

funds. Pet. App. 56. Harvard’s mission is “to educate

the citizens and citizen-leaders for our society” through

“the transformative power of a liberal arts and sciences

education.” Id. at 108 (citation omitted). To achieve

that goal, Harvard “values and pursues many kinds of

diversity” in its student body, including “different academic interests, belief systems, political views, geographic origins, family circumstances, and racial identities.” Ibid.

Harvard’s admissions process begins with recruiting

efforts, which aim to attract high-achieving applicants

of varied socioeconomic, geographic, and racial backgrounds. Pet. App. 12-13. Harvard then evaluates applications using a rigorous multistep process. Every application is read by a “first reader,” who assigns numeric scores in six areas: academic, extracurricular, athletic, school support, personal, and overall. Id. at 15; see

id. at 14-21. Applicants are interviewed by alumni or

admissions officers, who also assign scores in the academic, extracurricular, personal, and overall categories.

Id. at 21.

Applications are then considered by regional subcommittees, which make recommendations to the full

admissions committee. Pet. App. 15, 21-22. If a majority of the committee votes to admit an applicant, the applicant is tentatively admitted. Id. at 22-23. The fullcommittee vote, however, typically results in “a pool of

more than 2,000 tentative admits, more than can be admitted.” Id. at 23. The committee accordingly “conducts a ‘lop process’ to winnow down the pool.” Ibid.

Throughout the process, admissions officers are periodically provided with “one-pagers,” which report

“demographic characteristics of Harvard’s applicant

pool and admitted class and compares them to the previous year.” Pet. App. 24. One-pagers contain information including the applicant pool’s distribution by geographic region, race, gender, intended concentration,

legacy status, and whether applicants applied for financial aid. Ibid. Harvard uses this information to avoid

dramatic year-to-year “drop-offs in admitted students

with certain characteristics, including race, due to inadvertence or lack of care.” Id. at 66. It also uses the onepagers to “forecast yield rates”—i.e., “the percent of

admitted applicants who accept an offer”—because applicants of certain demographic groups “accept offers of

admission at higher rates.” Id. at 24-25.

At various points during the process, Harvard may

award a “tip” that improves an applicant’s chances of

admission. Pet. App. 23. Tips are given based on various characteristics, including “outstanding and unusual

intellectual ability, unusually appealing personal qualities, outstanding capacity for leadership, creative ability,” and “geographic, ethnic, or economic factors,” including race. Id. at 23-24. Harvard also gives “tips” to

recruited athletes, legacy applicants, applicants on the

Dean’s Interest List, and children of faculty and staff

(collectively, ALDC applicants). Id. at 25-26. Tips may

be considered in assessing an applicant’s “overall” rating during the first read, during subcommittee and fullcommittee meetings, and during the lop process. Id. at

23-24.

3. Petitioner is a nonprofit organization formed in

July 2014 to defend “the right of individuals to equal protection under the law” through “litigation” and other

means. Pet. App. 10. When petitioner filed this suit a

few months later, it had 47 “affiliate members,” several

of whom were “Asian American members who had applied to and been rejected by Harvard.” Ibid.; see id. at

330. Since filing this suit, petitioner has amended its bylaws and membership rules. Id. at 10. Petitioner currently has approximately 20,000 members. Ibid.

Petitioner’s complaint alleged that Harvard’s admissions process violates Title VI. Pet. App. 7. Petitioner

asserted that Harvard’s acknowledged consideration of

race does not satisfy strict scrutiny, alleging that it

amounts to racial balancing, it uses race as more than a

“plus” factor, and Harvard could achieve its goals

through race-neutral alternatives. Id. at 7-8. Petitioner

separately asserted that Harvard surreptitiously engages

in intentional discrimination against Asian-American

applicants, principally by assigning them lower personal ratings. Id. at 8. Petitioner sought only prospective relief. Ibid.

4. The district court denied Harvard’s motion to dismiss for lack of Article III standing, holding that petitioner had associational standing to assert claims on behalf of its members. Pet. App. 43. Following a 15-day

bench trial, including testimony from 30 witnesses, the

district court rejected petitioner’s claims. Id. at 99-270.

The district court determined that “Harvard’s admissions process survives strict scrutiny” because it is

“narrowly tailored to achieve diversity and the academic benefits that flow from diversity.” Pet. App. 265.

The court rejected petitioner’s claim that Harvard’s admissions process entails racial balancing. Id. at 247-252.

The court found that “Harvard’s admissions program

intends to treat every applicant as an individual”; that

Harvard “does not employ a race-based quota”; and

that Harvard had neither target numbers for particular

races nor predetermined ranges of permissible fluctuation. Id. at 248-249.

The district court additionally found no evidence that

Harvard used race in a mechanical way. Pet. App. 252-256.

The court explained that race was used only contextually and that the “tips” for race were “comparable to

the size and effect of tips” this Court upheld in Grutter

and Fisher II. Id. at 254. The court rejected petitioner’s contention that Harvard could have achieved

its diversity goals through workable race-neutral alternatives. Id. at 256-260.

Finally, the district court found that Harvard did not

intentionally discriminate against Asian-American applicants. Pet. App. 260-266. The court found “no evidence of any racial animus whatsoever or intentional

discrimination on the part of Harvard beyond its use of

a race conscious admissions policy” that sometimes

treats a particular applicant’s race as a plus factor, but

never as a negative. Id. at 261; see id. at 138-139. The

court also scrutinized the parties’ statistical models, id.

at 197-204, and found that the evidence did not evince a

pattern of intentional discrimination, id. at 264-265.

5. The court of appeals affirmed. Pet. App. 1-98.

a. The court of appeals first held that petitioner had

associational standing. Pet. App. 51-55.

b. On the merits, the court of appeals affirmed the

district court’s conclusion that Harvard’s policy satisfies

strict scrutiny. Pet. App. 56-79. It explained that this

Court’s decisions in Grutter and Fisher II held that the

educational benefits flowing from student-body diversity may constitute a compelling interest. Id. at 56-58.

The court of appeals concluded that Harvard “ha[d]

identified specific, measurable goals it seeks to achieve

by considering race in admissions,” and that those goals

were even “more precise and open to judicial scrutiny”

than the goals this Court had approved in Fisher II. Id.

at 58; see id. at 31-35, 58-61.

The court of appeals determined that Harvard’s consideration of race is narrowly tailored. Pet. App. 61-67.

The court observed that, under this Court’s precedents,

“universities may pay ‘some attention to numbers’ without ‘transforming a flexible admissions system into a

rigid quota.’ ” Id. at 63 (quoting Grutter, 539 U.S. at

336) (brackets omitted). The court of appeals rejected

petitioner’s argument that Harvard’s use of one-pagers

reflected racial balancing, finding that the evidence supported Harvard’s position that it uses them for permissible purposes and that the racial composition of Harvard’s

classes varies over time in a manner inconsistent with

balancing. Id. at 64-67.

The court of appeals also affirmed the district court’s

determination that Harvard does not use race mechanically. Pet. App. 67-73. The court of appeals noted that, unlike the admissions process this Court held invalid in Gratz,

Harvard’s program does “not award a fixed amount of

points to applicants because of their race,” but instead

“considers race as part of a holistic review.” Id. at 68. The

court observed that “the effect of race * * * is ‘not disproportionate to the magnitude of other tips,’ ” such as

those for children of faculty or staff, or for legacy status. Id. at 69 (citation omitted). The court noted that

the effects of Harvard’s use of race in increasing the

percentage of African-American and Hispanic admitted

students at Harvard were smaller than the corresponding effects of the program this Court upheld in Grutter.

Ibid.

The court of appeals additionally determined that

“Harvard ha[d] met its burden” of showing “that it has

carefully considered” race-neutral alternatives and

“concluded that they are not workable and would undercut its educational objectives.” Pet. App. 74. The court

observed that Harvard “ha[d] implemented many of the

policies [petitioner] propose[d]”—such as eliminating

its early-action admissions option, increasing financial

aid, and additional outreach—but that those policies

had been insufficient to produce a diverse student body.

Ibid. The court found in particular that Harvard had

“proved” that one of petitioner’s principal proposals

(Simulation D)—in which Harvard would eliminate

consideration of race and tips for ALDC applicants,

while increasing tips for low-income status—“was not a

workable alternative.” Id. at 76. The court explained

that Simulation D would cause significant declines in the

average SAT score of admitted students and in the percentage of admitted students with superior academic,

extracurricular, personal, and athletic ratings. Id. at 76

(citing Fisher II, 136 S. Ct. at 2213); see Grutter,

539 U.S. at 340. The court also noted that Simulation D

would cause a 32% decrease in African-American representation in Harvard’s admitted class, which would

“make Harvard less attractive and hospitable to minority applicants while limiting all students’ opportunities

to engage with and learn from students with different

backgrounds.” Pet. App. 78; see id. at 77-78.

c. Finally, the court of appeals affirmed the district

court’s holding that Harvard’s admissions process does

not intentionally discriminate against Asian Americans.

Pet. App. 79-98. The court of appeals assumed, without

deciding, that Harvard bore the burden of disproving

intentional discrimination and concluded that “Harvard

ha[d] carried” that burden. Id. at 80; see id. at 79 n.34.

The court noted that the district court had credited the

consistent testimony of Harvard admissions officers

disclaiming any intent to discriminate against AsianAmerican applicants. Id. at 82. The court of appeals rejected petitioner’s reliance on a 1990 federal-government

report because that report concluded that “Harvard did

not discriminate against” Asian Americans. Id. at 83

(citation omitted). And the court determined that the

statistical evidence did not reflect intentional discrimination against Asian Americans. Id. at 86-98. The court

emphasized that, even using petitioner’s “preferred

model,” the negative effect of Asian-American identity

was “almost undetectable on a year-by-year basis” and

“only statistically significantly negative in one of the six

years analyzed.” Id. at 96.

DISCUSSION

After affirming the district court’s detailed factual

findings, the court of appeals held that Harvard’s limited consideration of race in admissions complies with

this Court’s precedents because it is narrowly tailored

to further a compelling interest in the educational benefits of a diverse student body. Petitioner contends

(Pet. 36-43) that the Court should review that determination. But the court of appeals correctly applied this

Court’s precedents, and its decision neither conflicts

with any decision of another court of appeals nor otherwise satisfies this Court’s certiorari standards. To the

contrary, petitioner seeks to relitigate for a third time

case-specific factual disputes that both lower courts resolved against it.

Petitioner also contends (Pet. 21-36) that the Court

should grant review to overrule Grutter v. Bollinger,

539 U.S. 306 (2003), and the Court’s other precedents

authorizing consideration of race in university admissions. But petitioner cannot justify that extraordinary

step. In the view of the United States, Grutter’s interpretation of equal-protection principles is correct, and

all traditional stare decisis factors—including the substantial reliance interests of colleges and universities

around the Nation—strongly support adhering to Grutter. In any event, this case would be a poor vehicle for

reconsidering Grutter.

A. The Court Of Appeals’ Application Of This Court’s

Precedents Does Not Warrant Further Review

The district court and the court of appeals held that

Harvard’s limited consideration of race as part of its holistic assessment of applicants satisfies strict scrutiny.

Pet. App. 56-98, 234-266. The United States participated in the lower courts as an amicus curiae supporting

petitioner, arguing that Harvard’s consideration of race

is not narrowly tailored to serve a compelling interest.

E.g., Gov’t C.A. Amicus Br. 10-31. But both courts rejected that view of the evidence. The United States has

now reexamined the case following the court of appeals’

decision, the change in Administrations, and this Court’s

invitation to file an amicus brief. Based on that review,

the United States has concluded that neither the district court’s factual findings nor the court of appeals’

application of this Court’s precedents to those findings

warrant further review.

1. The court of appeals correctly recognized that

Harvard’s admissions policy is subject to “strict scrutiny,” under which its “use of race must further a compelling interest and be narrowly tailored to do so.” Pet.

App. 44, 56; see, e.g., Fisher v. University of Texas,

570 U.S. 297, 309 (2013); Gratz v. Bollinger, 539 U.S.

244, 276 n.23 (2003). The court also correctly recognized

that, under this Court’s precedents, attaining the educational benefits of “student body diversity is a compelling * * * interest that can justify the use of race in

university admissions.” Grutter, 539 U.S. at 325; see

Pet. App. 56-61.

Petitioner acknowledges that this Court has “approved” “the educational benefits of ‘student body diversity’ ” as a compelling interest. Pet. 37 (quoting

Fisher I, 570 U.S. at 314-315). And petitioner does not

appear to challenge the court of appeals’ holding that

Harvard has complied with this Court’s precedents by

identifying “specific, measurable goals it seeks to

achieve by considering race in admissions.” Pet. App.

58; see id. at 31-35, 57-61.

2. Instead, “the heart of [petitioner’s] challenge” under Grutter, Pet. App. 61, and the crux of its disagreement with the court of appeals’ application of Grutter

(Pet. 36-43), is petitioner’s assertion that Harvard’s

consideration of race is not narrowly tailored. The court

of appeals properly rejected that contention, which is

refuted by the district court’s factual findings upheld on

appeal. Pet. App. 61-79.

a. The district court’s findings establish that Harvard’s approach comports with the requirement that

race be considered only in a contextual, not mechanical,

manner. See Fisher v. University of Texas, 136 S. Ct.

2198, 2208-2210, 2207 (2016); Gratz, 539 U.S. at 271-272.

The court found that Harvard’s admissions program

uses race “in a flexible, nonmechanical way,” considering it only “as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Pet.

App. 242 (quoting Grutter, 539 U.S. at 334). The court

noted that, “[l]ike the University of Michigan Law

School in Grutter, Harvard ‘engages in a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might

contribute to a diverse educational environment.’ ” Ibid.

(quoting Grutter, 539 U.S. at 337). “[T]his individualized consideration,” the court explained, “is afforded to

applicants of all races” and “adequately ensures that all

factors that may contribute to student body diversity

are meaningfully considered.” Ibid. (quoting Grutter,

539 U.S. at 337) (brackets omitted). And the court found

that Harvard’s use of race is limited and “flexible enough

to consider all pertinent elements of diversity in light of

the particular qualifications of each applicant.” Id. at 253

(citation omitted).

The court of appeals reached the same conclusion

based on its own extensive review of the record. Pet.

App. 68-72. The court reasoned that Harvard “considers

race as part of a holistic review process” and “does not

weigh race so heavily that it becomes mechanical and

decisive in practice.” Id. at 68. And the court emphasized that “[t]he impact of Harvard’s use of race on the

makeup of its class is less than the one at issue in Grutter.” Id. at 69.

b. The district court’s factual findings upheld on appeal also support the conclusion that Harvard does not

engage in racial balancing. See Grutter, 539 U.S. at

329-330 (quoting Regents of the Univ. of California v.

Bakke, 438 U.S. 265, 307 (1978) (opinion of Powell, J.)).

The court found that Harvard does not employ “any racial quotas and has not attempted to achieve classes

with any specified racial composition.” Pet. App. 204.

The court determined that, in “treat[ing] every applicant as an individual,” Harvard does not “ ‘define diversity as some specified percentage of a particular group

merely because of its race or ethnic origin.’ ” Id. at 248

(quoting Fisher I, 570 U.S. at 311) (citation omitted).

The court further found that the racial composition of

Harvard’s admitted class has varied from year to year

“in a manner inconsistent with the imposition of a racial

quota or racial balancing.” Id. at 205.

The court of appeals reviewed the record and determined that the evidence supported the same conclusion.

Pet. App. 63-67. The court noted that “[t]he amount by

which the share of admitted Asian American applicants

fluctuates is greater than the amount by which the

share of Asian American applicants fluctuates,” which

is “the opposite of what one would expect if Harvard imposed a quota.” Id. at 64. And the court rejected petitioner’s contention that admissions officers’ awareness

of the demographic composition of the emerging class

of admitted students reflected in the one-pagers proved

that its admissions process is not narrowly tailored. Id.

at 65-67. As the court observed, this Court in Grutter

rejected a similar argument alleging that an institution’s “consultation” of similar “ ‘daily reports’ ” that

“ke[pt] track of the racial and ethnic composition of the

class” rendered its process not narrowly tailored. Id. at

65 (quoting Grutter, 539 U.S. at 336).

c. Both courts below also faithfully followed this

Court’s direction to conduct a “careful judicial inquiry”

into whether Harvard “could achieve sufficient diversity without using racial classifications.” Fisher I,

570 U.S. at 312. The courts properly determined that

Harvard considered race-neutral alternatives and concluded that none offered a workable way to achieve its

compelling interest. Pet. App. 73-79, 256-260.

The district court chronicled in detail the various alternatives that Harvard considered. Pet. App. 208-220.

Those alternatives included eliminating early-action

admission, eliminating ALDC tips, augmenting recruitment efforts and financial aid, admitting additional transfer students, eliminating consideration of

standardized-test scores, and imposing “place-based

quotas” (e.g., to admit “the top student from each high

school class or zip code”). Id. at 216; see id. at 208-216.

The court also addressed simulations that petitioner offered to model the effects of those alternatives. Id. at

217-220. The court found that “Harvard ha[d] demon-

strated that there are no workable and available raceneutral alternatives, singly or taken in combination,

that would allow it to achieve an adequately diverse student body while still perpetuating its standards for academic and other measures of excellence.” Id. at 220.

The court of appeals also examined the evidence and

likewise concluded that “Harvard ha[d] met its burden

* * * to show that it ha[d] carefully considered all alternatives” and had “concluded that they are not workable

and would undercut its educational objectives.” Id. at

74; see id. at 37-42, 73-79.

3. Finally, the district court found, as a factual matter, that Harvard does not engage in intentional discrimination against Asian-American applicants. The

court of appeals assumed, without deciding, that Harvard bore the burden of disproving discrimination and

concluded that “Harvard ha[d] carried” that burden.

Pet. App. 80. Both courts credited the testimony of

Harvard’s admissions officials consistently disavowing

any intent to discriminate. Id. at 82-83, 120, 138, 190.

And both courts closely scrutinized the parties’ quantitative evidence and determined that it did not demonstrate intentional discrimination. Id. at 47-50, 85-98,

165-208, 260-266. As the court of appeals noted, petitioner’s own preferred statistical model showed only an

“almost undetectable” negative effect of Asian-American

identity that did not support a finding of intentional discrimination. Id. at 96. And petitioner “did not present

a single admissions file that reflected any discriminatory animus.” Id. at 246.

4. Petitioner does not contend that the decision below conflicts with any decision of another court of appeals. Instead, in arguing that Harvard’s admissions

program does not satisfy strict scrutiny (Pet. 36-43),

petitioner principally asks this Court to revisit the

lower courts’ factual determinations. For example, a

central premise of the petition is that Harvard intentionally “discriminates against Asian Americans” by

awarding them lower personal ratings based on racial

stereotypes. Pet. 12; see Pet. 3, 12-17, 20, 27, 30-31,

37-39. But the lower courts found, as a factual matter,

that “Harvard did not intentionally discriminate against

Asian Americans.” Pet. App. 98. Petitioner similarly

seeks to relitigate the lower courts’ findings that Harvard does not “engage[ ] in racial balancing,” “use[s]

race as a mere plus” factor, and could not achieve its

goals through “workable race-neutral alternatives.”

Pet. 37, 39, 41-42 (emphases omitted).

Those factual contentions do not warrant review.

This Court ordinarily “do[es] not grant a certiorari to

review evidence and discuss specific facts.” United

States v. Johnston, 268 U.S. 220, 227 (1925). And “under what [the Court] ha[s] called the ‘two-court rule,’

the policy has been applied with particular rigor when

[the] district court and court of appeals are in agreement as to what conclusion the record requires.” Kyles

v. Whitley, 514 U.S. 419, 456-457 (1995) (Scalia, J., dissenting) (citing Graver Tank & Mfg. Co. v. Linde Air

Prods. Co., 336 U.S. 271, 275 (1949)). This Court thus will

not “undertake to review concurrent findings of fact by

two courts below in the absence of a very obvious and

exceptional showing of error.” Exxon Co., U.S.A. v.

Sofec, Inc., 517 U.S. 830, 841 (1996) (citation omitted).

Petitioner has made no such showing here. Indeed,

petitioner fails even to acknowledge the deference due to

the lower courts’ findings, which rested in part on the

lower courts’ extensive analysis of the parties’ disputes

about the appropriate econometric methodology for

constructing statistical models of the effects of Harvard’s admission process. See Pet. App. 47-50, 85-98,

165-208, 260-266. And to the extent petitioner seeks to

frame the petition as a claim that the court of appeals misapplied this Court’s precedents to the facts found by the

district court, that too “is a quintessential example of the

kind that [the Court] almost never review[s].” Taylor v.

Riojas, 141 S. Ct. 52, 55 (2020) (Alito, J., concurring in the

judgment). “A petition for a writ of certiorari is rarely

granted when the asserted error” is “the misapplication

of a properly stated rule of law.” Sup. Ct. R. 10. The

Court should adhere to that settled practice here.

B. This Court Should Not Grant Review To Consider

Overruling Its Precedents In This Area

Petitioner separately contends (Pet. 21-36) that the

Court should grant review to overrule Grutter and hold

that any consideration of race in admissions is categorically impermissible. In making that request, petitioner

necessarily asserts that the Court should also overrule

its decisions in Bakke, Fisher I, and Fisher II. That contention lacks merit, and this case would be an unsuitable

vehicle for revisiting those precedents in any event.

1. Petitioner primarily contends (Br. 22-29) that

Grutter should be overruled because it is “wrong.” Pet.

22. But the principles that Grutter articulated are correct. The Court explained that the educational benefits

of diversity may qualify as a compelling interest because a university may conclude that those benefits are

“essential to its educational mission.” 539 U.S. at 328.

The educational benefits of diversity, including racial

and ethnic diversity, include “better prepar[ing] students for an increasingly diverse workforce and society,” “promot[ing] ‘cross-racial understanding,’ ” and

ensuring that “the path to leadership [is] visibly open to

talented and qualified individuals of every race and ethnicity.” Id. at 330, 332 (citations omitted).

“The educational benefits of diversity identified in

Grutter and Fisher are of critical importance to the

United States.” U.S. Amicus Br. at 5, Fisher II, supra

(No. 14-981). Among other things, “[t]he government

has a vital interest in drawing its personnel—many of

whom will eventually become its civilian and military

leaders—from a well-qualified and diverse pool of university and service academy graduates.” Ibid.; see id.

at 8-15. “[T]he ‘[N]ation’s future depends upon leaders

trained through wide exposure to the ideas and mores

of students as diverse as this Nation of many peoples.’ ”

Grutter, 539 U.S. at 324 (citation omitted). This Court’s

decisions thus correctly recognize that securing the educational benefits that flow from such diversity is a sufficiently compelling interest to justify race-conscious

measures that satisfy the stringent narrow-tailoring requirements set forth in Grutter, Gratz, and Fisher.

2. In any event, this Court always “demand[s] a ‘special justification,’ over and above the belief ‘that the

precedent was wrongly decided,’ ” before reversing one

of its decisions. Allen v. Cooper, 140 S. Ct. 994, 1003

(2020) (citation omitted). That demand for a special justification reflects the Court’s recognition that stare decisis is a “foundation stone of the rule of law.” Ibid. (citation omitted). Petitioner has identified no such special justification here. To the contrary, traditional stare

decisis considerations strongly support adhering to

Grutter.

First, Grutter has in no sense become an “outlier.”

Janus v. American Fed’n of State, Cnty. & Mun.

Emps., Council 31, 138 S. Ct. 2448, 2482 (2018). Grutter

ratified the principles articulated 25 years earlier in

Justice Powell’s pathmarking opinion in Bakke, which

formed the basis for the Bakke Court’s reversal of the

portion of the lower court’s judgment prohibiting consideration of race in admissions. Grutter, 539 U.S. at

325; see id. at 322-323. And no decision of the Court has

called Grutter into doubt or cabined its holding that the

educational benefits of a diverse student body may qualify as a compelling interest justifying limited consideration of race in university admissions. Cf. Janus,

138 S. Ct. at 2483-2485. Petitioner disagrees with that

holding (Pet. 22-25), but identifies no subsequent legal

development calling it into question.

Second, Grutter has not proven “unworkable.” Pet.

29 (citation omitted). Petitioner offers no evidence that

this Court or lower courts have struggled to apply Grutter’s teachings. And this Court’s other decisions applying Grutter’s framework have provided additional guidance about the contours of the standard Grutter prescribed. See Fisher II, 136 S. Ct. at 2207-2208, 2210-2214;

Fisher I, 570 U.S. at 310-315; Gratz, 539 U.S. at 269-276.

Third, and most importantly, Grutter has engendered widespread reliance. In the quarter-century before the Court issued that decision, “[p]ublic and private

universities across the Nation” had already “modeled

their own admissions programs on Justice Powell’s”

opinion in Bakke. Grutter, 539 U.S. at 323. Since Grutter “endorse[d]” Justice Powell’s approach, 539 U.S. at

325, that reliance has only grown. See, e.g., Brown University, et al. C.A. Amicus Br. 1.

Revisiting this Court’s settled precedent in the specific context of Harvard’s admissions process would

place the disruption of those reliance interests in stark

relief. Harvard’s approach has been a point of reference

in decisions addressing other institutions’ policies since

Bakke. There, Justice Powell cited Harvard’s process as

“[a]n illuminating example” of how a school’s compelling

interest in student-body diversity can be pursued without quotas or racial balancing. 438 U.S. at 316; see id. at

316-317, 321-324 (reproducing detailed description of

Harvard’s then-current approach). The Court in Grutter

likewise found a comparison to “Harvard’s flexible use of

race as a ‘plus’ factor” to be “instructive” and upheld the

University of Michigan Law School’s admissions policy

because it resembled “the Harvard plan” in relevant respects. 539 U.S. at 335; see id. at 335-337, 339. Conversely, Gratz held invalid Michigan’s undergraduate admissions policy based in part on dissimilarities between

it and Harvard’s approach. See 539 U.S. at 272-273.

Those decisions have invited colleges and universities to

rely on the permissibility of a holistic, flexible approach

like Harvard’s as a benchmark in structuring their own

admissions policies. It would profoundly unsettle expectations to declare retroactively that such reliance subjects those institutions to Title VI liability.

Finally, petitioner’s contention (Pet. 30-32) that intentional discrimination against Asian Americans warrants revisiting Grutter is a non sequitur. Nothing in

Grutter sanctions such “intentional[ ] discriminat[ion]”

(Pet. 30), much less “segregation” (Pet. 32), based on

race. Here, for example, both lower courts made clear

that, although Harvard’s acknowledged consideration

of race in pursuit of diversity is consistent with Grutter,

Harvard would have violated Title VI if it had actually

engaged in intentional discrimination based on antiAsian stereotypes. Pet. App. 80, 260-266.

3. In any event, this case is not an appropriate vehicle for reconsidering Grutter. Like Bakke, Gratz, and

Fisher, Grutter was a suit (a) brought by individual

university applicants, (b) against a state university subject to the Equal Protection Clause, and (c) focused on

allegations that the university’s acknowledged consideration of race to increase diversity was unlawful. This

case differs in each of those respects, and each of those

distinctions would complicate this Court’s review.

a. First, petitioner, a nonprofit membership organization, has relied on associational standing to bring suit

“solely as the representative of its members.” Warth v.

Seldin, 422 U.S. 490, 511 (1975). Substantial questions

exist as to whether petitioner’s claims are justiciable,

and this Court would have an “independent obligation”

to address those questions if it granted certiorari. Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009).

The district court held that petitioner had standing to

seek prospective relief because some of its members

had submitted affidavits attesting that they had been

rejected by Harvard and were “able and ready” to seek

to transfer if Harvard’s policies changed. Pet. App. 345

(citation omitted). But it is unclear from the existing

record whether the claims of petitioner’s original members, who had applied and been denied admission when

the suit was commenced seven years ago, remain live,

or whether its current members face an “actual or imminently threatened” denial of admission, Earth Island, 555 U.S. at 492; see id. at 494-496; Gratz, 539 U.S.

at 260-262.

Even if petitioner could overcome that gap in the record, its reliance on associational standing is complicated

by Harvard’s contention that petitioner does not adequately represent its members. See Br. in Opp. 37. Associational standing is an exception to the usual requirement

that suits vindicating collective interests must be brought

as class actions that satisfy the “special safeguards” of

Federal Rule of Civil Procedure 23. International

Union, United Auto., Aerospace, & Agric. Implement

Workers of Am. v. Brock, 477 U.S. 274, 288-289 (1986).

One of the premises for that exception is that associations will “represent adequately the interests of all their

injured members,” such that a judgment against an association can “preclude subsequent claims by the association’s members without offending due process.” Id.

at 290; see Taylor v. Sturgell, 553 U.S. 880, 892-898

(2008) (describing the due-process limits on nonparty

preclusion). This Court has thus stated that, if it were

“presented with evidence” of a “problem” with a particular association’s ability to represent its members, the

Court “would have to consider how it might be alleviated.” Brock, 477 U.S. at 290. If the Court granted certiorari, therefore, it would have to consider Harvard’s

argument that petitioner cannot adequately represent

its members because they do not “control, direct, or finance the organization” or petitioner’s conduct of this

litigation. Br. in Opp. 37.

b. Second, because Harvard is a private college, this

case does not include any claim under the Equal Protection Clause. This Court has held that Title VI imposes

the same limits as the Equal Protection Clause on the

consideration of race in admissions. See Grutter,

539 U.S. at 343; Gratz, 539 U.S. at 276 n.23. But it would

be odd to reconsider some of this Court’s most significant equal-protection precedents in a case where the

Equal Protection Clause does not apply. Among other

things, that would require the Court to adjudicate the

parties’ debate about whether this case is properly governed by the “enhanced” version of stare decisis that

applies in statutory cases, where (as with respect to Title VI) “Congress can correct any mistake it sees.”

Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 456 (2015);

compare Br. in Opp. 15 with Reply Br. 5-6.

c. Third, Grutter and this Court’s other decisions

addressing the use of race in admissions have involved

challenges to a university’s acknowledged consideration

of race to increase student-body diversity. See Grutter,

539 U.S. at 313-316; see also Fisher II, 136 S. Ct. at

2205-2207; Gratz, 539 U.S. at 253-257; Bakke, 438 U.S.

at 272-276. Harvard has such a policy, and one aspect

of this case is petitioner’s contention that Harvard’s

acknowledged consideration of race in a way that benefits certain applicants is inconsistent with those

precedents—or, in the alternative, that those precedents should be overruled.

But this case also includes a very different claim that

was absent from Fisher, Grutter, Gratz, and Bakke: Petitioner asserts that, quite apart from Harvard’s acknowledged use of race in a way that benefits particular

applicants (including “some Asian American applicants,”

Pet. App. 70), Harvard surreptitiously relies on racial

stereotypes to penalize Asian Americans by assigning

them lower personal ratings. Pet. 3, 12-17, 20, 27, 30-31,

37-39. Indeed, the court of appeals described that as

petitioner’s “central allegation.” Pet. App. 57 n.23.

That allegation is factually and legally distinct from petitioner’s challenge to Harvard’s acknowledged use of

race as a plus factor. Most obviously, Harvard does not

and could not argue that the alleged intentional discrimination against Asian Americans would be permissible

under Grutter. And it would be anomalous to grant review to reconsider Grutter in a case where the plaintiff ’s

most heavily pressed claim does not implicate Grutter’s

holding.

Petitioner’s claim of intentional discrimination against

Asian Americans would also complicate the Court’s consideration of petitioner’s challenge to Harvard’s acknowledged use of race in admissions. Although the two claims

are distinct, petitioner often conflates them. For example, petitioner seeks to inject its allegations of surreptitious intentional discrimination into its arguments

about Grutter and Harvard’s acknowledged use of race

as a plus factor. E.g., Pet. 3, 30-32. The court of appeals

noted the resulting confusion, observing that it is “not

entirely clear” how petitioner’s claims fit together. Pet.

App. 57 n.23; see, e.g., id. at 79 n.34.

d. Petitioner identifies no sound reason to grant review in light of these difficulties. Even if the Court were

inclined to take the extraordinary step of reconsidering

its precedents in this area, it should not do so in a case

that presents these additional and unnecessary complications.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.