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

Nos. 20-1199 & 21-707

IN THE

___________

STUDENTS FOR FAIR ADMISSIONS, INC.,

PETITIONER,

V.

PRESIDENT & FELLOWS OF HARVARD COLLEGE,

RESPONDENT.

___________

STUDENTS FOR FAIR ADMISSIONS, INC.,

PETITIONER,

V.

UNIVERSITY OF NORTH CAROLINA et al.,

RESPONDENTS.

___________

On Writs of Certiorari to the

U.S. Court of Appeals for the First and Fourth Circuits

__________

BRIEF OF THE LIBERTY JUSTICE CENTER

AND MOMOKO TAKAHASHI AS

AMICI CURIAE IN SUPPORT OF PETITIONER

__________

May 3, 2022

Daniel R. Suhr

Counsel of Record

James J. McQuaid

LIBERTY JUSTICE CENTER

440 N. Wells St., Ste. 200

Chicago, IL 60654

(312) 637-2280

dsuhr@libertyjusticecenter.org

i

TABLE OF CONTENTS

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

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT & INTRODUCTION ........................................................................... 2

ARGUMENT ............................................................... 4

I. The affirmative action regime countenanced by Grutter is discriminatory and

would be unlawful in any other context. ......... 4

II. Harvard rejected race-neutral alternatives

to maintain its discriminatory ALDC admission program............................................... 6

A. Harvard was presented with workable

race-neutral alternatives to its racebased admissions program. ........................ 6

B. The system Harvard defends is at odds

with its stated goal of diversity. ............... 11

III.Discrimination is an inefficient means by

which to obtain diversity. .............................. 16

A. White students are also beneficiaries of

affirmative action programs. .................... 17

B. Minimizing Asian presence on campus

does not achieve diversity because

Asians and Asian Americans bring their

own unique viewpoints to universities. ... 18

ii

C. Excluding or minimizing the presence of

Asians and Asian Americans does not

further the goal of diversity because

Asian Americans themselves are an extremely diverse group. ............................. 21

CONCLUSION ......................................................... 24

iii

TABLE OF AUTHORITIES

Cases

Brown v. Board of Educ.,

346 U.S. 483 (1954) ................................................2

Grutter v. Bollinger,

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

Fisher v. Univ. of Tex.,

570 U.S. 297 (2013) ..........................................7, 11

McDonald v. Santa Fe Trail Transp. Co.,

427 U.S. 273 (1976) ................................................5

Regents of Univ. of Cal. v. Bakke,

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

Shelley v. Kraemer,

334 U.S. 1 (1948) ....................................................5

Strauder v. West Virginia,

100 U.S. 303 (1880) ................................................5

Other Authorities

Aaron Feis & Lia Eustachewich, Felicity

Huffman, Lori Loughlin Busted in College

Admissions Cheating Scandal, N.Y. POST

(Mar. 12, 2019) ...........................................................12

Benjamin Chang, Asian Americans and Education, OXFORD RESEARCH ENCYCLOPEDIA OF

EDUCATION (Feb. 2017) ..............................................23

Children of Asian Immigrants Reveal Sacrifices Their Parents Made, YouTube (June 16,

2015) ...........................................................................20

iv

Christina Gough, Share of African Americans

in the National Football League in 2019, by

Role, STATISTA (Aug. 27, 2020) ..................................12

Dedrick Asante-Muhammad & Sally Sim, Racial Wealth Snapshot: Asian Americans and

the Racial Wealth Divide, NATIONAL COMMUNITY REINVESTMENT COALITION (May 14, 2020) .......22

Expert Report of Richard D. Kahlenberg, Dkt.

416-1 in No. 1:14-cv-14176-ADB (D. Mass) ...... passim

Foreign Language Training, Foreign Service

Institute, U.S. Department of State .........................19

Guofang Li, Other People’s Success: Impact of

the ‘Model Minority’ Myth on Underachieving

Asian Students in North America, KEDI

JOURNAL OF EDUCATIONAL POLICY, Vol 2., Issue

1, 69 (2005) .................................................................19

Huizhong Wu, The Model Minority Myth: Why

Asian-American Poverty Goes Unseen, MASHABLE (December 14, 2015) ...........................................22

Ilana Kowarski, 10 Universities With the Biggest Endowments, U.S. News (Sept. 22, 2020) ...........8

Jingjing Xiao, For an Asian-American Family,

the Cost of Education, N.Y. TIMES (Mar. 26,

2019) ...........................................................................20

John Brittain & Eric L. Bloom, Admitting the

Truth: The Effect of Affirmative Action, Legacy

Preferences, and the Meritocratic Ideal on Students of Color in College Admissions, in Affirmative Action for the Rich: Legacy Preferences in College Admissions (Richard D.

Kahlenberg ed., 2010) ................................................13

v

Kimberle W. Crenshaw, Framing Affirmative

Action, 105 MICH. L. REV. FIRST IMPRESSIONS

123 (2007) ...................................................................17

Li Zhou, The Inadequacy of the Term “Asian

American,” VOX (May 5, 2021, 10:10 AM).................22

Martin Schiere, et al., Understanding the Social Cultural Differences Between China, Japan and South Korea for Better Communication, GLOCALITIES .......................................................21

Michael G. Peletz, Diversity and Unity, ASIA

SOCIETY ......................................................................23

Rebecca Prinster, Feds Clear Princeton of Discriminating Against Asian American Students,

INSIGHT INTO DIVERSITY (Sept. 28, 2015) ................4, 5

Rebuttal Expert Report of Richard D. Kahlenberg, Dkt. 416-1 in No. 1:14-cv-14176-ADB (D.

Mass) ....................................................................10, 11

Richard Lapchick, The 2019 Racial and Gender Re-port Card: National Basketball Association..............................................................................12

Sally Kohn, Affirmative Action has Helped

White Women More than Anyone, TIME (June

17, 2013, 9:00 AM) .....................................................17

Sahra Vang Nguyen, The Truth about ‘The

Asian Advantage’ and ‘Model Minority Myth’,

HUFFINGTON POST (Oct 14, 2015) ..............................23

Thomas J. Espenshade et al., NO LONGER SEPARATE, NOT YET EQUAL: RACE AND CLASS IN

ELITE COLLEGE ADMISSION AND CAMPUS LIFE

93 (Princeton Univ. Press, 2009).................................4

vi

U.S. Cambodian Population Living in Poverty,

PEW RESEARCH CENTER (Sept. 8, 2017) .................... 22

Victoria M. Massie, White Women Benefit Most

from Affirmative Action – And Are Among Its

Fiercest Opponents, VOX (June 23, 2016) ................. 17

William Fitzsimmons, Rakesh Khurana, & Michael D. Smith, Report of the Committee to

Study Race-Neutral Alternatives, Apr. 2018 ....... 7, 11

1

INTEREST OF THE AMICI CURIAE1

The Liberty Justice Center is a nonprofit, nonpartisan, public-interest litigation firm that seeks to protect economic liberty, private property rights, free

speech, and other fundamental rights. The Liberty

Justice Center pursues its goals through strategic,

precedent-setting litigation to revitalize constitutional restraints on government power and protections

for individual rights.

The Liberty Justice Center believes that every

American has a right to fair and equal treatment regardless of race, whether in education or other sectors of society. See, e.g., Joyner v. Vilsack, 1:21-cv01089 (W.D. Tenn.) (challenging race-discriminatory

USDA program on behalf of a farmer who would be

eligible for hundreds of thousands of dollars in farm

loans if not for his race); Clark v. State Public Charter

School Authority, 2:20-cv-02324-APG-VCF (D. Nev.)

(challenging public education program that identifies

plaintiff as belonging to groups characterized as “oppressive” and “wrong”); Menders v. Loudoun Cty.

School Bd., 1:21-cv-00669-AJT-TCB (E.D. Va.) (similar).

Momoko Takahashi is a Ph.D. candidate at

Northwestern University in Evanston, Illinois.

Throughout her academic career, she has faced discrimination in school admissions due to her ethnicity.

1 Rule 37 statement: No counsel for any party authored any part

of this brief, and no person or entity other than Amicus funded

its preparation or submission. All parties have filed blanket consent for amicus briefs.

2

SUMMARY OF ARGUMENT & INTRODUCTION

Discriminating between people based on race,

when race is so ill-defined to begin with, is illogical

and should be illegal in America. “To separate [students] from others of similar age and qualifications

solely because of their race generates a feeling of inferiority as to their status in the community that may

affect their hearts and minds in a way unlikely ever

to be undone.” Brown v. Board of Educ., 347 U.S. 483,

494 (1954).

Yet this is exactly what Harvard and the University of North Carolina (“the Universities”) have done.

They have done this under the auspices of this

Court’s decision in Grutter v. Bollinger, 539 U.S. 306

(2003), which held that institutions of higher education have a compelling interest in a “diverse” student

body, which justifies race-based discrimination in

their admissions programs. 539 U.S. at 328 (defendant law school also sought to obtain “the educational

benefits that flow from a diverse student body”); id.

at 329-33 (noting universities have a compelling interest in securing such educational benefits); Pet’rs

App. in No. 21-707 (“UNC Pet’rs App.”) 58 (trial court

findings of fact). In the years since that decision, it

has become clear that affirmative action impermissibly discriminates against some college applicants

(usually Asian-American applicants) and has not resulted in more racially equal outcomes.

The Universities have justified their racial discrimination as a means to achieve “the educational

benefits of diversity” as permitted by Grutter. But

3

subsequent research has demonstrated that affirmative action is an inefficient way of achieving student

body diversity.

Moreover, Harvard in particular has rejected multiple race-neutral admissions plans and continues to

maintain that only its discriminatory system is workable, because it wants to maintain a facially raceneutral set of preferences for athletes and children of

alumni, donors, and faculty. These preferences, or

“tips,” overwhelmingly benefit rich white applicants

in contradiction of Harvard’s stated aim of having a

diverse student body.

The Universities can and must do better, not only

for the sake of better educational outcomes but for

the betterment of all Americans. So can all of American higher education. Grutter hoped that universities

would “draw on the most promising aspects of . . .

race-neutral alternatives as they develop.” 539 U.S.

at 342. But although the Court saw “no reason to exempt race-conscious admissions programs from the

requirement that all governmental use of race must

have a logical end point,” id., that end point is no

more in sight today than when Grutter was decided.

Finally, the Universities do not serve their alleged

diversity interest by discriminating against Asians

and Asian Americans. It is nonsensical for the Universities to claim that they need fewer, rather than

more, applicants from the most populous and diverse

continent on the planet in order to further diversity.

4

ARGUMENT

I. The affirmative action regime countenanced

by Grutter is discriminatory and would be

unlawful in any other context.

It has long been clear that the “holistic” approach

authorized by Grutter, 539 U.S. at 337, still results in

clear racial bias. See Thomas J. Espenshade et al., NO

LONGER SEPARATE, NOT YET EQUAL: RACE AND CLASS

IN ELITE COLLEGE ADMISSION AND CAMPUS LIFE 93

(Princeton Univ. Press, 2009). A study looking at

1997 admission practices demonstrated that Black

applicants received an “admission bonus” “equivalent

to 310 SAT points.” Id. Asian candidates, on the other

hand, were penalized 140 SAT points compared to

their white counterparts. Id. This would appear to

run counter to Grutter’s admonishment that, although universities may use race as a “plus” factor, an

applicant cannot be evaluated “in a way that makes

an applicant’s race or ethnicity the defining feature of

his or her application.” 539 U.S. at 337. Therefore,

one would think that, post-Grutter, this practice

would not be permissible. But when this data was

cited in disputes about Princeton’s admissions process between 2006 and 2011, Princeton successfully

defended itself on the grounds that “the university’s

holistic review of applicants in pursuit of its compelling interest in diversity meets the standards set by

the Supreme Court.” Rebecca Prinster, Feds Clear

Princeton of Discriminating Against Asian American

5

Students, INSIGHT INTO DIVERSITY (Sept. 28, 2015).2

Grutter’s admonishment is at best a paper tiger; universities may still openly discriminate on the basis of

race.

No other institution or industry is trusted with

the use of racial classifications. See Shelley v. Kraemer, 334 U.S. 1 (1948) (holding race-based restrictive

covenants violate the Equal Protection Clause);

McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

273 (1976) (holding race-based discrimination in employment violates Title VII of the Civil Rights Act of

1964); Strauder v. West Virginia, 100 U.S. 303 (1880)

(holding racial discrimination in jury selection offends the Equal Protection Clause). Strauder and its

progeny are particularly noteworthy here because one

could just as easily argue that juries, like universities, have an interest in diverse viewpoints. Yet racial

discrimination in each of those circumstances is intolerable.

What makes universities so special that they may

discriminate where employers and juries may not?

Bakke says universities have a First Amendment

right “to make [their] own judgments as to education[,] includ[ing] the selection of [their] student

bod[ies].” Regents of Univ. of Cal. v. Bakke, 438 U.S.

265, 312 (1978). From this, the Grutter Court extrapolated the notion that “attaining a diverse student

body is at the heart of the [university]’s proper institutional mission.” Grutter, 539 U.S. at 329. How convenient for universities. Less convenient, of course,

2 https://www.insightintodiversity.com/feds-clear-princeton-of-

discriminating-against-asian-american-students/.

6

for the students the universities are supposed to be

educating and the students’ families. Grutter emphasized the benefits conferred on those who are admitted: they gain “the skills needed in today’s increasingly global marketplace” and preparation “for work and

citizenship” in a manner “pivotal to sustaining our

political and cultural heritage.” 539 U.S. at 330-31

(cleaned up). But apparently those applicants who do

not check certain racial boxes do not deserve those

benefits, regardless of their effort expended to attain

the measurable qualities that the universities purport to require for their admission candidates in the

name of excellence.

Bakke and Grutter did note, however, that “‘good

faith’ on the part of a university is to be ‘presumed’

absent ‘a showing to the contrary.’” Grutter, 539 U.S.

at 329, quoting Bakke, 438 U.S. at 318-19. And here,

at least, that showing to the contrary is readily available.

II. Harvard rejected race-neutral alternatives

to maintain its discriminatory ALDC admission program.

A. Harvard was presented with workable

race-neutral alternatives to its race-based

admissions program.

Harvard’s stated intention is diversity: “Harvard

tries to create opportunities for interactions between

students from different backgrounds and with different experiences to stimulate both academic and nonacademic learning.” Pet’rs App. in 20-1199 (“Harvard

Pet’rs App.”) 109 (District Court Findings of Fact).

7

Harvard convinced the First Circuit that its goal was

“not simple ethnic diversity” but rather “exposure to

widely diverse people, cultures, ideas, and viewpoints.” Harvard Pet’rs App. 59-60 (Opinion below,

quoting Grutter v. Bollinger, 539 U.S. 306, 324-45

(2003)).

Harvard convened a committee to determine, as

Grutter and Fisher require, “whether Harvard College’s pursuit of its diversity-related educational objectives still requires it to consider the race and ethnicity of undergraduate applicants . . . or whether

Harvard could accomplish those objectives without

taking race into account.” William Fitzsimmons,

Rakesh Khurana, & Michael D. Smith, Report of the

Committee to Study Race-Neutral Alternatives, Apr.

2018 (“Harvard Report”), Joint. App’x (JA) 1307-25.

After this lawsuit was filed, that committee released

a report stating that Harvard’s “goal is to admit students . . . who will contribute through their diversity

of experiences, backgrounds, and interests to the

quality and vitality of life at the College.” Id. at 1 (JA

1307).

While promoting student body diversity may be a

compelling interest, “the reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of

diversity.” Fisher v. Univ. of Tex., 570 U.S. 297, 312

(2013) (emphasis added). “[S]trict scrutiny imposes on

the university the ultimate burden of demonstrating . . . that available, workable race-neutral alternatives do not suffice.” Id. In other words, Harvard’s

discriminatory plan passes muster only if it is the

sole way to effectively achieve its goal.

8

As Petitioner alluded to in its Harvard petition, at

least one workable race-neutral alternative exists.

Pet. 43. This statement undersells the Expert Report

of Richard D. Kahlenberg, Dkt. 416-1 in No. 1:14-cv14176-ADB (D. Mass.) (“Expert Report”). The Expert

Report was specifically commissioned to examine

“whether Harvard could implement workable raceneutral alternatives that would produce the educational benefits of diversity.” Expert Report at 3.

In fact, Kahlenberg found several race-neutral alternatives. First, Kahlenberg found that increasing

socioeconomic preferences would increase both racial

and socioeconomic diversity without penalizing applicants based on their race. Expert Report at 17-29. He

noted that such a program would benefit “workingclass” applicants who are “more likely . . . to live in

segregated neighborhoods”—in other words, it would

increase the socioeconomic diversity Harvard professes to want. Id. at 19.

Second, Kahlenberg proposed that Harvard live

up to its 2007 commitment to increase financial aid.

Id. at 29. Harvard, with its $40,929,700,000 endowment, could afford to increase financial aid in furtherance of its stated objective of increasing socioeconomic diversity. Ilana Kowarski, 10 Universities With

the Biggest Endowments, U.S. News (Sept. 22, 2020).3

Increasing financial aid would allow Harvard “to create opportunities for interactions between students

from different backgrounds and with different experi-

3 https://www.usnews.com/education/best-colleges/the-short-list-

college/articles/10-universities-with-the-biggest-endowments.

9

ences.” Harvard Pet’rs App. 109 (District Court Findings of Fact).

Third, Kahlenberg discussed eliminating preferences for athletes, children of donors or faculty members, and the “Z-list,” discussed in more detail later in

this brief. Expert Report at 31-36.

Fourth, Kahlenberg observed that one of Harvard’s own professors published an essay in a book

Kahlenberg edited, suggesting that “a university”

could achieve a greater degree of diversity by sorting

students through a “geographic diversity algorithm”

using ZIP codes. Expert Report at 2, 37 (quoting Danielle Allen, Talent is Everywhere: Using Zip Codes

and Merit to Enhance Diversity, in The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas 147-48

(Richard D. Kahlenberg ed., 2014)).

Fifth, Kahlenberg suggested that Harvard increase its recruitment efforts, noting that Harvard

“exerts far less effort to recruit economically disadvantaged applicants” and “does an especially poor job

of recruiting . . . students whose parents do not have

a college degree.” Expert Report at 39.

Sixth, Kahlenberg noted that “many selective public and private colleges” provide opportunities for

high-achieving community college students to transfer, thus promoting socioeconomic diversity. Expert

Report at 41. However, Harvard has “lagged” while

other colleges have been increasing community college transfers. Id.

10

Finally, Kahlenberg proposed that Harvard end

early admissions—as it had once done, citing their

inherent unfairness to low-income students. Expert

Report at 42. In total, Kahlenberg proposed seven different race-neutral alternatives to achieve Harvard’s

stated goal of increasing socioeconomic diversity;

Harvard rejected them all.

Kahlenberg observed that the sum total of Harvard’s token effort to meet its obligation under Fisher

to consider a workable alternative to its racist admissions system was “a disbanded committee” and the

creation of a three-member committee that met only

once. Expert Report at 16. Harvard’s own experts did

not address this failure in their own reports. Rebuttal

Expert Report of Richard D. Kahlenberg, Dkt. 416-2

in No. 1:14-cv-14176-ADB (D. Mass) (“Rebuttal Report”) at 6. (The Rebuttal Report is dated January 29,

2018; the three-member committee met in March of

that year to discuss “race-neutral alternatives . . . including responses to [the] Kahlenberg rebuttal report.” JA 4412. That committee produced the Harvard Report in April 2018; some of the Harvard Report’s shortcomings will be discussed in Section II of

this brief.)

Most telling of all, Kahlenberg used a model produced by one of Harvard’s expert witnesses (with a

few improvements to account for disadvantaged high

school students; parental income, education, and

English proficiency; neighborhood income; athletic

preferences; and a lack of early admissions) to

demonstrate that viable race-neutral alternatives exist, and that Harvard is deliberately ignoring them in

violation of Fisher. Rebuttal Report at 29-32. Kahlen-

11

berg’s simulation—again, based on Harvard’s expert’s

model, and therefore using data that Harvard had or

should have had available—saw white students fall

from 40% of admissions to 32%; Asian-American students rise from 24% to 31%; and, perhaps most important for Harvard’s stated goal of increasing socioeconomic diversity, first-generation college admissions rose from 7% to 25%. Rebuttal Report 33.

To reiterate, Harvard’s stated justification for its

racial discrimination is that it wants to obtain “a student body that reflects the broadest possible range of

backgrounds and experiences.” Harvard Report at 1,

JA 1307. Harvard maintains that if it eliminated race

as a factor in admissions, minority representation in

the student body would decrease. Id. at 8, JA 1314.

To defend its racist practices, Harvard must believe

that “no workable race-neutral alternatives would

produce the educational benefits of diversity.” Fischer, 570 U.S. at 312. Harvard’s defense in this case revolves around diversity.

Why, then, does Harvard insist on protecting its

policy of favoring athletes, legacies, “Dean’s list” or

“Z-list” applicants, and children of faculty (collectively “preferred applicants”), even though its objectives

in maintaining such favoritism are directly at odds

with its stated objective of student body diversity?

B. The system Harvard defends is at odds

with its stated goal of diversity.

Preferred applicants are still disfavored if they are

Asian-American—or indeed any minority. Between

2014 and 2019, 68 percent of admitted preferred ap-

12

plicants were white, while Asian Americans made up

only 12% of that figure, and African Americans and

“Hispanic or Other” represented a paltry six percent

each. JA 1776. This program is plainly at odds with

Harvard’s stated goals of promoting racial and socioeconomic diversity.

Start with athletes. 86 percent of athletes are admitted, compared to only six percent of non-athletes.

JA 1785. One might expect, depending on the sport,

an at-least equal share of white and AfricanAmerican athletic admissions. For example, 58.9 percent of NFL players in 2019 were African-American.

Christina Gough, Share of African Americans in the

National Football League in 2019, by Role, Statista

(Aug. 27, 2020).4 In the NBA, 74.8 percent of players

were African-American. Richard Lapchick, The 2019

Racial and Gender Report Card: National Basketball

Association.5 What was the percentage of AfricanAmerican athletes admitted by Harvard in 2019? 13

percent. JA 1785.6

4

https://www.statista.com/statistics/1154691/nfl-racialdiversity/.

5

https://tidesport.org/nba (last visited March 25, 2021).

6

A separate reason for eliminating athletic preferences is that

they are ripe for abuse. While Harvard itself was not implicated,

the recent admissions scandal cannot have escaped the Court’s

notice. The rich and famous paid more than $25 million in total

bribe money to place their children in prestigious universities’

athletic admissions program. Aaron Feis & Lia Eustachewich,

Felicity Huffman, Lori Loughlin Busted in College Admissions

Cheating

Scandal,

N.Y.

Post,

Mar.

12,

2019,

https://nypost.com/2019/03/12/lori-loughlin-felicity-huffmanbusted-in-college-admissions-cheating-scandal/.

13

Legacies, likewise, are overwhelmingly white. As

Petitioner’s expert observed, “only 7.6% of legacy admi[ssions] in 2002 were underrepresented minorities,

compared with 17.8% of all students.” Expert Report

at 32, citing John Brittain & Eric L. Bloom, Admitting the Truth: The Effect of Affirmative Action, Legacy Preferences, and the Meritocratic Ideal on Students

of Color in College Admissions, in Affirmative Action

for the Rich: Legacy Preferences in College Admissions

132 (Richard D. Kahlenberg ed., 2010). Petitioner’s

expert also determined that four of the top ten universities do not employ legacy preferences, suggesting

that Harvard could do the same if it were, in fact,

committed to socioeconomic diversity. Expert Report

at 32.

At trial, Dean Fitzsimmons admitted that Harvard gives a “tip” in its admissions scoring process to

children of alumni because alumni perform recruitment tasks for Harvard, promote Harvard across the

country, and “have helped raise money or give money

to Harvard.” JA 684. (Kahlenberg argues that “the

existence of legacy preferences does not increase

alumni donations to an institution.” Expert Report at

32.) Likewise, Harvard also “give[s] a tip to children

of Harvard faculty and staff.” Appellant’s Appendix in

No. 19-2005 (1st Cir.) at 921. It does this “to attract

faculty to Harvard.” Id. at 922. And it also gives a

“tip” to athletes because “having all of [its] students

gather together . . . for athletic contests builds a spirit of community.” Id. at 915. These “tips” matter; legacy applicants have a 33.6 percent admittance rate

compared to 5.9 percent of non-legacy applicants, and

children of faculty or staff have a 46.7 percent admittance rate compared to a 6.6 percent rate for appli-

14

cants who are not children of faculty or staff. Id. at

5989. And Dean Fitzsimmons admitted that “[t]here

are some [athletes and legacies] who needed a tip to

get in.” Id. at 916.

So, it should come as no surprise that Kahlenberg’s expert report proposed removing preferred applicant “tips” as a means of achieving a greater degree of racial and socioeconomic diversity and, incidentally, a more race-neutral admissions rubric. Expert Report 31-36. For example, if Harvard stopped

showing favoritism to children of “the wealthiest donors, those giving $1 million or more,” Harvard’s student body would obviously become more socioeconomically diverse. Expert Report at 34.

Kahlenberg also proposed eliminating the “Z-list,”

a method by which Harvard admits mediocre students (those whose “academic records on average fall

about as close to rejected students as they do to admitted students”) on the condition that they take a

gap year before entering Harvard. Id. at 34, 36.

The Harvard Report euphemistically states that

the Z-list “allows Harvard to admit excellent students

who would benefit from the experiences gained in a

gap year.” Harvard Report at 17 (JA 1323). But then

the Report immediately goes on to admit that, yes,

some Z-list students “also have significant connections to the University.” Id. Harvard nevertheless

presents this as a good thing. Favoring wellconnected applicants at the expense of underserved

communities “helps to cement strong bonds between

the university and its alumni.” Id. at 16 (JA 1322).

An inoffensive goal, perhaps—but not a sufficiently

15

important reason to discriminate based on race. And

while Harvard self-servingly states that “children of

Harvard alumni tend to be very strong applicants,”

Id. at 17 (JA 1323), that only raises the question of

why “very strong applicants” need an extra advantage.

Likewise, Ruth Simmons, President of Prairie

View A&M University in Texas and an expert witness for Harvard, testified at trial that Harvard

would “never” admit a child of an alumnus or donor

“if they [were] not qualified on the same basis as other students,” JA 1003, raising the question why those

applicants get “tips” in the first place. Her further

testimony may answer that question: “when individuals who are prominent, . . . who have all manner of

things that they can do to assist the university, might

have children apply,” it would not be “problematic to

admit those students” “if it is possible that their children are highly able and . . . their parents could make

a difference for the institution.” JA 1004. This is

somehow different from “admit[ting] a student because their family promises a contribution,” which

would be a “completely inappropriate” “quid pro quo.”

JA 1004. Semantics aside, Harvard’s interest in

maintaining these sorts of perks for wealthy, wellconnected (and usually white) students is at odds

with its stated intention of having a diverse student

body.

Moreover, this sort of discrimination flies in the

face of even Grutter’s dream of “[e]ffective participation by members of all racial and ethnic groups in the

civic life of our Nation.” Grutter, 539 U.S. at 332. Under Harvard’s regime, how does a poor white or Asian

16

student, the first in her family to attend college, get

admitted to Harvard despite having a GPA and SAT

scores more than satisfactory to perform well at Harvard? She does not. This directly contradicts Harvard’s proclaimed mission. See Bakke, 438 U.S. at 313

(“[T]he nation’s future depends upon leaders trained

through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples”

(cleaned up)). This student’s “ideas and mores,”

which, given her background, would likely be more

extraordinary than those of the star football players

Harvard would rather admit, do not matter.

Harvard is, on the one hand, hiding behind its

“diversity” goal to discriminate against Asian Americans, and on the other, completely ignoring that goal

to avail itself of wealthy parents’ largesse (to the detriment of all minorities). This hypocrisy should not

stand.

III. Discrimination is an inefficient means by

which to obtain diversity.

The Grutter Court took “the Law School at its

word that it would ‘like nothing better than to find a

race-neutral admissions formula and will terminate

its race-conscious admissions program as soon as

practicable.’” 539 U.S. at 343 (citation omitted). Such

race-neutral alternatives do exist, see ante at Section

II-A. But Harvard and other schools with race-based

admissions have not followed them—even as their

current systems fail to promote diversity.

17

A. White students are also beneficiaries of

affirmative action programs.

If Asian Americans are being discriminated

against, cui bono? If affirmative action worked as intended, the answer would be “underserved AfricanAmericans.” But that is not the case. “[T]he primary

beneficiaries of affirmative action have been EuroAmerican women.” Kimberle W. Crenshaw, Framing

Affirmative Action, 105 MICH. L. REV. FIRST IMPRESSIONS 123, 129 (2007);7 see also Victoria M. Massie,

White Women Benefit Most from Affirmative Action –

And Are Among Its Fiercest Opponents, VOX (June 23,

2016).8 And, again, legacy admissions also favor rich

white applicants who obviously do not bring a diverse

viewpoint to campus.

The solution to this problem, according to affirmative action’s defenders, is to double down. See, e.g.,

Sally Kohn, Affirmative Action has Helped White

Women More than Anyone, TIME (June 17, 2013, 9:00

AM)9 (“The success of white women make a case not

for abandoning affirmative action but for continuing

it.”). This, despite the fact that Grutter presumed a

good-faith intent on the part of universities to “terminate [their] race-conscious admissions program as

soon as practicable.” 539 U.S. at 343; see also Regents

of Univ. of Cal. v. Bakke, 438 U.S. 263, 318-19 (1978)

(opinion of Powell, J.) (“[G]ood faith would be pre7 https://repository.law.umich.edu/cgi/viewcontent.cgi?article=

1093&context=mlr_fi.

8 https://www.vox.com/2016/5/25/11682950/fisher-supremecourt-white-women-affirmative-action.

9 https://time.com/4884132/affirmative-action-civil-rights-whitewomen/.

18

sumed in the absence of a showing to the contrary.”)

Doubling down on a failed, racist policy is not evidence of good faith.

Over forty years ago, Justice Powell wrote that

universities must not be presumed to be operating

their

“facially

nondiscriminatory

admissions

polic[ies] . . . as a cover for the functional equivalent

of a quota system.” Bakke, 438 U.S. at 318. Sadly, the

evidence of time has shown this Court can no longer

rely on Justice Powell’s good-faith assumption.

B. Minimizing Asian presence on campus

does not achieve diversity because Asians

and Asian Americans bring their own

unique viewpoints to universities.

To reiterate, the Universities’ affirmative action

plans are supposed to admit “students who could contribute to the University [and] the achievement of

critical masses of underrepresented populations,” the

latter of which is necessary to give all students “the

educational benefits of a diverse learning environment” and to avoid “undue pressure on underrepresented students.” UNC Pet’rs App. 54 (cleaned up).

But minimizing the presence of Asians and Asian

Americans does not further this interest.

Asian Americans as a whole are far more likely to

bring “a perspective different from that of” other students. Grutter, 539 U.S. at 319; see also UNC Pet’rs

App. 57 (“improved classroom discussion through different perspectives” a sought benefit of using race in

admissions). This is because Asians and Asian Americans are more likely to be foreign-born than their

19

counterparts: 57 percent of Asian Americans, including 71% of Asian-American adults, were born in another country, compared to only 14 percent of all

Americans and 17 percent of all American adults.

Abby Budiman & Neil G. Ruiz, Key Facts About

Asian-Americans, a Diverse and Growing Population,

PEW RESEARCH (Apr. 29, 2021).10 Amicus Momoko

Takahashi is one such individual: born in Japan, she

moved to the U.K. before immigrating to America as

a nine-year-old. Yet despite having lived in two more

countries and speaking one more language (Japanese,

the furthest-removed language from English)11 than

most of her peers, and despite her record as a champion high school debater, she was rejected from every

non-state university she applied to as an undergraduate applicant in favor of less accomplished applicants.

Approximately one-third of Asian Americans, particularly those raised in households where English is

not spoken, lack proficiency in writing, reading, and

speaking skills. Guofang Li, Other People’s Success:

Impact of the ‘Model Minority’ Myth on Underachieving Asian Students in North America, KEDI JOURNAL

OF EDUCATIONAL POLICY, Vol 2., Issue 1, 69, 70

(2005). Amicus Momoko Takahashi is one among

many Asians and Asian Americans who have strug10 https://www.pewresearch.org/fact-tank/2021/04/29/key-facts-

about-asian-americans/.

11

Barry R. Chiswick & Paul W. Miller, Linguistic Distance: A Quantitative Measure of the Distance Between English and Other Languages, IZA

Discussion Paper No. 1246 (Aug. 2004), https://ftp.iza.org/dp1246.pdf;

see also Foreign Language Training, Foreign Service Institute, U.S. Department of State, https://www.state.gov/foreign-language-training/ (last

visited April 26, 2022) (Japanese is one of five “super-hard languages”

that require 2200 class hours to master).

20

gled with English as a second language, but did not

receive the necessary help in school due to being stereotyped as a super-smart Asian. Ms. Takahashi excelled in mathematics, which apparently offset her

shortcomings in other subjects in her teachers’ eyes.

Her mathematics proficiency, however, was not due

to her race, but rather due to the sacrifices made by

her family, who believed that school excellence was a

collective effort. This is a common experience for

many Asian Americans; it is not unusual for a student’s parents to sell their house to finance their

child’s education, leading one Asian American to

comment that “if I failed to earn scholarships[,] it

would be the financial equivalent of burning down my

parents’ home.” Jingjing Xiao, For an Asian-American

Family, the Cost of Education, N.Y. TIMES (Mar. 26,

2019)12; see also Children of Asian Immigrants Reveal

Sacrifices Their Parents Made, YouTube (June 16,

2015)13.

Asian Americans can also bring a unique perspective on discrimination. They were, after all, the victims of the first U.S. law to prevent immigration and

naturalization on the basis of race, the Chinese Exclusion Act of 1882. Asian Americans Then and Now,

ASIA SOCIETY.14 They have also been victims of the

Japanese internment during World War II and the

recent spate of anti-Asian violence in the wake of

COVID-19.

12 https://www.nytimes.com/2019/03/26/well/family/for-an-asian-

american-family-the-cost-of-education.html

13 https://www.youtube.com/watch?v=k1lDX0lzhd4

14 https://asiasociety.org/education/asian-americans-then-andnow (last visited Dec. 11, 2021).

21

C. Excluding or minimizing the presence of

Asians and Asian Americans does not further the goal of diversity because Asian

Americans themselves are an extremely

diverse group.

By handicapping Asian or Asian-American applicants, universities are reducing students with Chinese, Japanese, Korean, Vietnamese, Thai, Cambodian, or Indian heritage (among others) into a single

box labeled “Asian.” Each of these distinct ethnic

groups has its own language, culture, sociological

makeup, and perspective, but they are all locked into

the same box in race-based admissions programs.

Most of those categories are self-explanatory, but

an example of a sociological difference among East

Asian cultures illustrates the point. Chinese and Koreans are more likely to adopt new technologies than

Japanese, who are more focused on potential negative

effects of new technology. Martin Schiere, et al., Understanding the Social Cultural Differences Between

China, Japan and South Korea for Better Communication, GLOCALITIES.15 And Japanese and South Koreans are more likely to be “open-minded idealists

who value personal development and culture” than

their Chinese counterparts, who are more likely to

“value family and community.” Id.

Southeast Asians arguably have it even worse.

The very term “Asian American” tends to center on

East Asians (such as Chinese, Koreans, or Japanese)

15 https://glocalities.com/news/understanding-the-social-cultural-

differences-between-china-japan-and-south-korea-for-bettercommunication (last visited Dec. 11, 2021).

22

at the expense of South Asians (Bangladeshis, Indians, Sri Lankans) and Southeast Asians (Cambodians, Filipinos, Thai, Vietnamese). See, e.g., Li Zhou,

The Inadequacy of the Term “Asian American,” VOX

(May 5, 2021, 10:10 AM).16 And Southeast Asians in

America often live experiences entirely different from

those of their East Asian or non-Asian counterparts.

For example, while only 12.1 percent of all U.S.

Asians live in poverty, below the U.S. average of

15.1%, that number is 19.1 percent for Cambodians.

U.S. Cambodian Population Living in Poverty, PEW

RESEARCH CENTER (Sept. 8, 2017).17 Even more curiously, while a smaller percentage of U.S.-born Asians

live in poverty than their foreign-born counterparts,

that statistic is reversed for Cambodians. Id. And

while Indian Americans have a median income of

$100,000, Burmese Americans have a median income

of only $36,000. Dedrick Asante-Muhammad & Sally

Sim, Racial Wealth Snapshot: Asian Americans and

the Racial Wealth Divide, NATIONAL COMMUNITY REINVESTMENT COALITION (May 14, 2020).18 Bangladeshi

and Hmong poverty rates outstrip those of AfricanAmericans. Huizhong Wu, The Model Minority Myth:

Why Asian-American Poverty Goes Unseen, MASHABLE (December 14, 2015).19 And while over 94 percent

of Taiwanese and Japanese Americans have a high

school diploma, that statistic is under 66 percent for

16 https://www.vox.com/identities/22380197/asian-american-

pacific-islander-aapi-heritage-anti-asian-hate-attacks.

17 https://www.pewresearch.org/social-trends/chart/u-scambodian-population-living-in-poverty/.

18 https://ncrc.org/racial-wealth-snapshot-asian-americans-andthe-racial-wealth-divide/.

19 http://mashable.com/2015/12/14/asian-americanpoverty/#.UK4LnHskgqr

23

Laotian and Hmong Americans. Benjamin Chang,

Asian Americans and Education, OXFORD RESEARCH

ENCYCLOPEDIA OF EDUCATION (Feb. 2017).20 17 percent of Pacific Islanders, 14% of Cambodian Americans, and 13 percent of Laotian and Hmong Americans have four-year college degrees (compared to 22

percent for African-Americans or 15 percent for Hispanics). Sahra Vang Nguyen, The Truth about ‘The

Asian Advantage’ and ‘Model Minority Myth’, HUFFINGTON POST (Oct 14, 2015).21

And Southeast Asians also differ among themselves. Vietnamese culture differs from Cambodian

and Lao culture, for example, in that the former has

strong Chinese influences while the latter two are

more influenced by India. Asian Americans Then and

Now, ante. And the majority of Southeast Asian countries are “home to dozens of different ethnic groups”

and have within themselves a clear geographicallybased religious divide. Michael G. Peletz, Diversity

and Unity, ASIA SOCIETY (last visited Dec. 13, 2021).22

A student from one such country’s highland areas,

following an animalistic tradition, would obviously

have perspectives from those of a student from the

lowlands, who would be more likely to adhere to a

more formal religion such as Islam, Buddhism, or

Christianity. Id.

The university admissions systems’ response to

this rich cultural diversity is to take geography as an

indicator of diversity, call the people from the largest

20 https://files.eric.ed.gov/fulltext/ED577104.pdf.

21 http://huffingtonpost.com/sahrah-vang-nguyen/the-truth-

about-the-asian_b_8282830.html)

22 https://asiasociety.org/education/diversity-and-unity.

24

continent in the world (and their American descendants) collectively “Asian,” and disadvantage them in

their admissions process. All (ostensibly) in the name

of “diversity.”

CONCLUSION

In Grutter, this Court wrote that it “expect[ed]

that 25 years from now, the use of racial preferences

will no longer be necessary to further the interest approved today.” 539 U.S. at 343. There are now seven

years left on that clock, and universities nationwide

are no closer to abandoning race as a factor in admissions than they were on the day Grutter was decided.

All they’ve done is perpetuate a racist system that

fails to obtain their stated goal of diversity.

This Court should adopt a clear, bright-line rule:

no educational institution may consider an applicant’s race in determining whether to admit that applicant.

Respectfully submitted,

Daniel R. Suhr

Counsel of Record

James J. McQuaid

LIBERTY JUSTICE CENTER

440 N. Wells St.,

Suite 200

Chicago, IL 60654

(312) 637-2280

dsuhr@libertyjusticecenter.org

May 3, 2022