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

Supreme Court briefMay 6, 2022

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Nos. 20-1199 & 21-707

In the Supreme Court of the United States

♦

STUDENTS FOR FAIR ADMISSIONS, INC.

Petitioner,

PRESIDENT & FELLOWS OF HARVARD COLLEGE,

Respondent.

__________

STUDENTS FOR FAIR ADMISSIONS, INC.

Petitioner,

UNIVERSITY OF NORTH CAROLINA, ET AL.,

Respondents.

♦

ON WRITS OF CERTIORARI TO

THE UNITED STATES COURTS OF APPEALS

FOR THE FIRST AND FOURTH CIRCUITS

♦

BRIEF OF AMICI CURIAE

FORMER FEDERAL OFFICIALS

OF THE U.S. DEPARTMENT OF EDUCATION’S

OFFICE FOR CIVIL RIGHTS IN SUPPORT OF

PETITIONER

♦

William E. Trachman

Counsel of Record

Joseph A. Bingham

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

wtrachman@mslegal.org

May 6, 2022

Attorneys for Amici Curiae

QUESTION PRESENTED

1. Should this Court overrule Grutter v.

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

institutions of higher education cannot use race as a

factor in admissions?

2. Title VI of the Civil Rights Act bans racebased admissions that, if done by a public university,

would violate the Equal Protection Clause. Gratz v.

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

violating Title VI by penalizing Asian-American

applicants,

engaging

racial

balancing,

overemphasizing race, and rejecting workable raceneutral alternatives?

3. The Constitution and Title VI ban racebased admissions unless they are “‘necessary’” to

achieve the educational benefits of diversity. Fisher

v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 312

(2013). Can a university reject a race-neutral

alternative because it would change the composition

of the student body, without proving that the

alternative would cause a dramatic sacrifice in

academic quality or the educational benefits of overall

student-body diversity?

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................

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

iii

IDENTITY AND INTEREST

OF AMICI CURIAE .......................................

SUMMARY OF THE ARGUMENT ..............

ARGUMENT ..................................................

Harvard and the University of

North Carolina Have Violated the

Equal Protection Clause and Title

VI..................................................

The Pervasive Use of Race

Cannot

Deemed

Necessary to Satisfy a

Compelling Interest ............

The Pervasive Use of Race

by Educational Institutions

Is Not Narrowly Tailored to

the Goal of a Diverse

Student Body .......................

The

Court’s

Current

Jurisprudence is Manipulable

and Unworkable ..........................

II.

iii

Respondents’

Violations

Reflect

Widespread

Noncompliance with this

Court’s

Doctrinal

Framework ..........................

Prior to Amici’s Tenure,

OCR

Guidance

Encouraged Schools to Use

Race-Conscious Policies ......

Between 2017 and 2021,

OCR

Withdrew

Prior

Guidance and Published

New

Material

Encourage

Compliance

with

This

Court’s

Precedents ...........................

The Biden Administration

has

Signaled

its

Commitment to Increasing

the Use of Race in

Education .............................

This Court Must Establish a Clear

Rule

against

Racial

Discrimination in Education.......

CONCLUSION ...............................................

III.

TABLE OF AUTHORITIES

CASES

PAGE(S)

Adarand Constructors v. Pena,

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

24, 36

Ass’n for Educ. Fairness v. Montgomery

Cty. Bd. of Educ.,

2021 WL 4197458 (D. Md., Sept. 15, 2021)

Batson v. Kentucky,

476 U.S. 79 (1986).........................................

Coalition for TJ v. Fairfax County School

Board, No. 22-12802022, WL 986994 (4th

Cir., Mar. 31, 2022) .....................................

23, 25

Fisher v. University of Texas at Austin

(Fisher I),

570 U.S. 297 (2013) ............................. 10, 23, 24, 25

Fisher v. University of Texas at Austin

(Fisher II),

579 U.S. 365 (2016) ............................. 4, 7, 9, 22, 23

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) .................................

Gratz v. Bollinger,

539 U.S. 244 (2003) ................................ 4, 5, 20, 29

Grutter v. Bollinger,

539 U.S. 306 (2003) ................ 4, 5, 7, 10, 12, 20, 37

League of United Latin American Citizens

v. Perry,

548 U.S. 399 (2006) .....................................

Loving v. Virginia,

388 U.S. 1 (1967) .........................................

Marks v. United States,

430 U.S. 188 (1977) .....................................

Miller v. Johnson,

515 U.S. 900 (1995) ................................

Montejo v. Louisiana,

556 U.S. 778, 792 (2009) ........................

Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1,

551 U.S. 701 (2007) .................... 8, 20, 21, 22, 24, 26

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) .....................................

Pena-Rodriguez v. Colorado,

137 S. Ct. 855 (2017) ...................................

Plessy v. Ferguson,

163 U.S. 537 (1896) .....................................

Regents of Univ. of California v. Bakke,

438 U.S. 265 (1978) ................................. 6, 10, 25, 36

Students for Fair Admissions, Inc. v.

President and Fellow of Harvard College,

397 F. Supp. 3d 126 (D. Mass. 2019) ..........

Students for Fair Admissions, Inc. v.

President and Fellows of Harvard College,

980 F.3d 157 (1st Cir. 2020) ........................

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .................................

STATUTES

20 U.S.C. § 1681 .............................................

20 U.S.C. § 7905 .............................................

29 U.S.C. § 701 ...............................................

42 U.S.C. § 2000d ...........................................

42 U.S.C. § 6101 .............................................

42 U.S.C. § 12131 ...........................................

REGULATIONS

34 C.F.R. § 100 ...............................................

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, cl. 1 ........................

vii

OTHER AUTHORITIES - (CHRONOLOGICAL)

Asra Q. Nomani & Erin Wilcox, The purge

of Asian American students at Thomas

Jefferson High School has begun,

Washington Post (June 2, 2022) .................

6, 7

Carl Campanile, US Dept. of Education

curbs decision on race-based ‘affinity

groups’, NEW YORK POST (Mar. 7, 2021) .....

18, 34

Draft OCR Letter of Finding to

Evanston/Skokie School District 65

(Undated) .....................................................

EXECUTIVE ORDER 13985, ADVANCING

RACIAL EQUITY AND SUPPORT FOR

UNDERSERVED COMMUNITIES THROUGH

THE FEDERAL GOVERNMENT, 86 FED. REG.

7009 (JAN. 25, 2021).........................................

George G. La Noue & Kenneth L. Marcus,

“Serious Consideration” of Race-Neutral

Alternatives in Higher Education, 57

CATH. U. L. REV. 991 (2008) ........................

Houston Keene, Biden admin suspends

probe into school allegedly segregating

students by race; Rep. Owens blasts

decision (Mar. 11, 2021) .................................

34, 35

viii

Kenneth L. Marcus, Diversity and RaceNeutrality, 103 NORTHWESTERN

UNIVERSITY LAW REVIEW COLLOQUY 163

(2008) ...........................................................

Kenneth L. Marcus, Secretary DeVos

Announces New Civil Rights Initiative to

Combat Sexual Assault in K-12 Public

Schools (Feb. 26, 2020) ...................................

Letter of Findings to Dr. Holden Thorp,

Chancellor, University of North Carolina,

(Nov. 27, 2012) .............................................

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS, DEAR COLLEAGUE LETTER ON THE

USE OF RACE IN ASSIGNING STUDENTS TO

ELEMENTARY AND SECONDARY SCHOOLS

(Aug. 28, 2008).............................................

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS, DEAR COLLEAGUE LETTER ON THE

USE OF RACE IN POSTSECONDARY STUDENT

ADMISSIONS (Aug. 28, 2008) ........................

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS AND U.S. DEP’T OF JUST.’S CIV.

RIGHTS DIV., GUIDANCE ON THE

VOLUNTARY USE OF RACE TO ACHIEVE

DIVERSITY AND AVOID RACIAL ISOLATION

IN ELEMENTARY AND SECONDARY SCHOOLS

(Dec. 2, 2011) ...............................................

5, 6

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS AND U.S. DEP’T OF JUST.’S CIV.

RIGHTS DIV., GUIDANCE ON THE

VOLUNTARY USE OF RACE TO ACHIEVE

DIVERSITY IN POSTSECONDARY EDUCATION

(Dec. 2, 2011) ...............................................

18, 19

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS AND U.S. DEP’T OF JUST.’S CIV.

RIGHTS DIV., QUESTIONS AND ANSWERS

ABOUT FISHER V. UNIVERSITY OF TEXAS AT

AUSTIN (Sept. 27, 2013) ..................................

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS AND U.S. DEP’T OF JUST.’S CIV.

RIGHTS DIV., QUESTIONS AND ANSWERS

ABOUT FISHER V. UNIVERSITY OF TEXAS AT

AUSTIN II (Sept. 30, 2016) ..............................

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS AND U.S. DEP’T OF JUST.’S CIV.

RIGHTS DIV., UPDATES TO DEPARTMENT OF

EDUCATION AND DEPARTMENT OF JUSTICE

GUIDANCE ON TITLE VI (July 3, 2018)..........

U.S. Dept. of Ed. Announces Initiative to

Support Children with Disabilities,

Campus Safety Magazine (Jan. 21, 2019)..

U.S. DEP’T OF EDUC. YOUTUBE CHANNEL,

OCR Short Webinar: How to File an OCR

Complaint (Mar. 20, 2020) .............................

U.S. DEP’T OF EDUC. OFFICE FOR CIV.

RIGHTS, CASE PROCESSING MANUAL

(August 26, 2020) .............................................

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS, QUESTIONS AND ANSWERS FOR K12 PUBLIC SCHOOLS IN THE CURRENT

COVID-19 ENVIRONMENT (Sept. 28, 2020) .

U.S. DEP’T OF EDUC. OFFICE FOR CIV.

RIGHTS, ANNUAL REPORT TO THE

SECRETARY, THE PRESIDENT, AND THE

CONGRESS (January 2021)...........................

U.S. DEP’T OF EDUC., OCR WEBINAR:

RACIALLY EXCLUSIVE PRACTICES AND

TITLE VI (Jan. 19, 2021) (Transcript) ..........

U.S. DEP’T OF EDUC., OCR WEBINAR: USE OF

RACE IN POSTSECONDARY ADMISSIONS

(Jan. 19, 2021) .............................................

U.S. Senate Health Committee Questions

for the Record for Catherine Lhamon,

Nominee to be Assistant Secretary for

Civil Rights, Department of Education

(July 14, 2021) ..................................................

IDENTITY AND INTEREST OF

AMICI CURIAE 1

Amici are former officials of the U.S. Department of

Education’s Office for Civil Rights, having served

under former Secretary of Education Betsy DeVos,

and are interested in the lawful and appropriate

enforcement of the Equal Protection Clause of the

Fourteenth Amendment, the Equal Protection

Principles contained in the Fifth Amendment Due

Process Clause, and Title VI of the Civil Rights Act of

1964.

Kenneth L. Marcus is the former Assistant

Secretary for Civil Rights, having served from 2018 to

2020.

Kimberly M. Richey is the former Principal Deputy

Assistant Secretary for Civil Rights, having served

from 2018 to 2021, including as Acting Assistant

Secretary for Civil Rights for parts of 2020 and 2021.

Candice Jackson is the former Deputy Assistant

Secretary for Strategic Operations and Outreach,

having served from 2017 to 2018, including as Acting

Assistant Secretary for Civil Rights for parts of 2017

and 2018.

1 The parties have consented to the filing of this amici curiae

brief. See Supreme Court Rule 37.3(a). Pursuant to Supreme

Court Rule 37.6, the undersigned affirms that no party or counsel

for a party authored this brief in whole or in part, and no person

or entity other than amici curiae or their counsel made a

monetary contribution intended to fund the preparation or

submission of this brief.

David C. Tryon is a former Deputy Assistant

Secretary for Policy and Development, having served

from 2019 to 2021.

William E. Trachman is a former Deputy Assistant

Secretary for Policy and Development, having served

from 2017 to 2019, and later as Senior Counsel from

2019 to 2021.

Christian Corrigan is a former Senior Counsel to

the Assistant Secretary in the Office for Civil Rights,

having served from 2019 to 2021.

Sarah Perry is a former Senior Counsel to the

Assistant Secretary in the Office for Civil Rights,

having served from 2020 to 2021.

The Department of Education’s Office for Civil Rights

(“OCR”) functions as an administrative law

enforcement agency. OCR has jurisdiction over nearly

all recipients of federal funds from the Department of

Education, and enforces several federal civil rights

statutes, including Title VI of the 1964 Civil Rights

Act and its implementing regulations. 42 U.S.C.

§ 2000d; 34 C.F.R. § 100, et seq. 2

As part of its enforcement authority, OCR receives

complaints from the public, and where appropriate,

2 OCR also enforces Title IX of the Educations Amendments of

1972, 20 U.S.C. § 1681, et seq., and Section 504 of the

Rehabilitation Act, 29 U.S.C. § 701, et seq., as well as Title II of

the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.

OCR also has jurisdiction over complaints arising under the Age

Discrimination Act, 42 U.S.C. § 6101, et seq., and the Boy Scouts

of America Equal Access Act, 20 U.S.C. § 7905.

investigates those complaints and brings recipients of

federal funds into compliance with Title VI through

resolution agreements or enforcement proceedings.

See, e.g., U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

RIGHTS, HOW TO FILE A COMPLAINT WITH THE

DEPARTMENT OF EDUCATION (September 2010); 3 see

also U.S. Dep’t of Educ. YouTube Channel, OCR Short

Webinar: How to File an OCR Complaint (Mar. 20,

2020). 4 OCR also initiates proactive investigations in

some instances, called Directed Investigations, and,

separately, opens Compliance Reviews related to

major OCR initiatives. See U.S. DEP’T OF EDUC.

OFFICE FOR CIV. RIGHTS, CASE PROCESSING MANUAL

23 (August 26, 2020) (describing Compliance Reviews

in Section 401 of and Directed Investigations in

Section 402). 5

3 https://www2.ed.gov/about/offices/list/ocr/docs/howto.pdf.

4 https://www.youtube.com/watch?v=BuwVa3JJE-4.

https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf. On

January 17, 2019, for instance, OCR announced a Compliance

Review initiative on the topic of the inappropriate use of

restraint and seclusion with respect to students with disabilities.

See U.S. Dept. of Ed. Announces Initiative to Support Children

with Disabilities, Campus Safety Magazine (Jan. 21, 2019),

https://www.campussafetymagazine.com/safety/u-s-dept-edchildren-disabilities/. Similarly, on February 26, 2020, OCR

announced a major initiative to open Compliance Reviews on the

topic of sexual assault in elementary and secondary schools. See

Letter to Superintendents from Assistant Secretary for Civil

Rights Kenneth L. Marcus, Secretary DeVos Announces New

Civil Rights Initiative to Combat Sexual Assault in K-12 Public

Schools

(Feb.

26,

2020),

https://content.govdelivery.com/accounts/USED/bulletins/27deb

d7.

♦

SUMMARY OF THE ARGUMENT

In determining whether to revisit its precedents, this

Court asks, inter alia, whether they involve

constitutional issues, whether they are well-reasoned,

and whether they have proven to be workable.

Montejo v. Louisiana, 556 U.S. 778, 792 (2009);

Patterson v. McLean Credit Union, 491 U.S. 164, 173

(1989). This case presents fundamental questions of

constitutional interpretation. These Amici will leave

to others the question as to whether Grutter v.

Bollinger, 539 U.S. 306 (2003), was well-reasoned. But

Amici can say with certainty, based on their

experience in federal civil rights enforcement, that

few areas of the law have been as unworkable as the

doctrinal framework that this Court established for

addressing racially preferential university admissions

programs.

This can be seen not only in the basic Equal Protection

Clause and Title VI violations committed in this case

by two of the nation’s premier private and public

educational institutions—violations which are,

moreover, pervasive throughout higher education—

but also in the futility of Executive Branch efforts to

establish stable, predictable enforcement programs

based on such cases as Gratz v. Bollinger, 539 U. S.

244 (2003), and Fisher v. University of Texas at

Austin, 579 U.S. 365 (2016) (Fisher II).

As a result, the Executive Branch has lurched wildly,

from administration to administration, in its efforts to

provide educational institutions with a clear

statement of the rules on which they will be evaluated

when their admissions or financial aid programs are

subjected to civil rights challenges. This has led not

only to legal ambiguity and unpredictability but also

to widespread race-conscious activity of precisely the

sort that civil rights laws are intended to limit. This

situation cannot be attributed solely to the different

policy commitments and priorities embraced by

successive presidential administrations. Rather, it

results from decisions of this Court which fail to

provide adequate guidance.

Under this Court’s precedents, the use of racial

classifications by public and federally-funded

institutions is heavily disfavored. Gratz v. Bollinger,

539 at 270. Cf. Grutter, 539 U.S. at 388 (Kennedy, J.,

dissenting) (“Preferment by race, when resorted to by

the State, can be the most divisive of all policies,

containing within it the potential to destroy

confidence in the Constitution and in the idea of

equality.”); accord League of United Latin American

Citizens v. Perry, 548 U.S. 399, 511 (2006) (Roberts,

C.J., concurring) (“It is a sordid business, this

divvying us up by race.”).

Yet in Amici’s experience, educational institutions

subvert this principle on the basis of vague diversity

or “equity” standards drawn tenuously from this

Court’s precedents. From student assignment at the

K-12 level, to affinity groups, to programming, to

college scholarships, and numerous other areas,

schools are conscious of race and treat students

differently based on their race. See, e.g., U.S. DEP’T OF

EDUC.’S OFFICE FOR CIV. RIGHTS AND U.S. DEP’T OF

JUST.’S CIV. RIGHTS DIV., GUIDANCE ON THE

VOLUNTARY USE OF RACE TO ACHIEVE DIVERSITY AND

AVOID RACIAL ISOLATION IN ELEMENTARY AND

SECONDARY SCHOOLS (Dec. 2, 2011) (citing Grutter for

the proposition that K-12 “[s]chool districts are

required to use race-neutral approaches only if they

are workable.”); 6 Nondiscrimination in Federally

Assisted Programs: Title VI of the Civil Rights Act of

1964, Federal Register Vol. 59, No. 36 (Feb. 23, 1994)

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

(1978), for the proposition that “a college may use race

or national origin as a condition of eligibility in

awarding financial aid if it is narrowly tailored to

promote diversity.”). 7

Although this Court’s precedents have attempted to

curtail the misuse of race in American educational

institutions, the trend is toward more racially

preferential conduct, not less. See, e.g., Draft OCR

Letter of Finding to Evanston/Skokie School District

65, at 15 (Undated) (“OCR notes with particular

concern the “What is Whiteness?” exercise used in the

District’s Beyond Diversity trainings, among other

lessons that advocated assigning students and

individuals characteristics based solely on their

race.”) 8; see also Asra Q. Nomani & Erin Wilcox, The

https://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese201111.pdf (“DECEMBER 2011 ELEMENTARY AND SECONDARY

GUIDANCE”) (withdrawn on July 3, 2018; listed as “Under

Review” as of July 30, 2021).

https://www2.ed.gov/about/offices/list/ocr/docs/racefa.html

(withdrawn on August 26, 2020; listed as “Under Review” as of

August 19, 2021).

8 See infra, Note 28.

purge of Asian American students at Thomas Jefferson

High School has begun, Washington Post (June 2,

2022) (“But this past year, school leaders bemoaned a

lack of ‘diversity’ at [Thomas Jefferson High School]

and launched a crusade to change admissions. The

student body is about 80 percent minority, but the

wrong kind of minority for school officials, with about

70 percent Asian and about 10 percent of the minority

students Black, Hispanic and multiracial.”). 9

Together, the cases consolidated here present the

questions of whether racial discrimination against

college applicants at Harvard and the University of

North Carolina is compatible with the Equal

Protection Clause and Title VI. The answer is surely

no. And answering this question firmly and broadly is

especially important now, given that the Court’s 25year admonition in Grutter, 539 U.S. at 310, is

approaching, but is itself on uncertain ground.

Compare id. at 310 (“The Court expects that 25 years

from now, the use of racial preferences will no longer

be necessary to further the interest approved today.”),

with Students for Fair Admissions, Inc. v. President

and Fellows of Harvard College, 980 F.3d 157, 192 (1st

Cir. 2020) (“Indeed, the Supreme Court never

mentioned Grutter’s 25-year timeline in Fisher I or

Fisher II.”).

The question of whether diversity is an all-purpose

excuse for race discrimination is not limited to the

college admissions context at two schools. And for that

reason, the Court should embrace the present

9 https://www.washingtonpost.com/opinions/2021/07/02/purgeasian-american-students-thomas-jefferson-has-begun/

opportunity to end the pervasive use of race in

educational decision-making. See Parents Involved in

Community Schools v. Seattle School Dist. No. 1, 551

U.S. 701, 748 (2007) (plurality opinion) (“The way to

stop discrimination on the basis of race is to stop

discriminating on the basis of race.”); Miller v.

Johnson, 515 U.S. 900, 912 (1995) (“Race-based

assignments embody stereotypes that treat

individuals as the product of their race, evaluating

their thoughts and efforts—their very worth as

citizens—according to a criterion barred to the

Government by history and the Constitution.”)

(internal quotation marks omitted).

Put simply, “diversity” was never meant to be an

indefinite catch-all exception to the U.S. Constitution

or to Title VI. See, e.g., Pena-Rodriguez v. Colorado,

137 S. Ct. 855, 867 (2017) (“It must become the

heritage of our Nation to rise above racial

classifications that are so inconsistent with our

commitment to the equal dignity of all persons.”);

Batson v. Kentucky, 476 U.S. 79, 85 (1986) (“[T]he

central concern of the recently ratified Fourteenth

Amendment was to put an end to governmental

discrimination on account of race.”); Plessy v.

Ferguson, 163 U.S. 537, 560 (1896) (Harlan, J.,

dissenting) (“Our Constitution is color-blind.”).

Nor is the term “diversity,” in its true sense, really in

play when Harvard and the University of North

Carolina use heavy-handed race-conscious policies.

Instead, schools treat race as an end in itself, without

regard to whether a student’s skin color is genuinely

connected to enhancing a school’s diversity of

viewpoints or life experiences. See, e.g., Fisher II, 579

U.S. at 414 (2016) (Alito, J., dissenting) (“It would be

ludicrous to suggest that all of these students have

similar backgrounds and similar ideas and

experiences to share.”). It is thus time to put to bed

Grutter’s holding that racial discrimination is

permissible because it is essential to the goal of

diversity in education.

ARGUMENT

Harvard and the University of North

Carolina

Have

Violated

the

Equal

Protection Clause and Title VI.

The evidence in the record establishes that Harvard

and the University of North Carolina have failed to

comply with the Equal Protection Clause and Title VI

standards articulated by this Court and by OCR.

These schools use race to classify and segregate

students during the consideration of their

applications, and to make decisions about whether to

extend offers of admission. This consideration reflects

a heavy-handed form of racial balancing that bears

little resemblance to the multi-factored diversity

described in this Court’s precedents. This use of race

as a proxy for diversity cuts directly against the

constitutional interests at play here, by suggesting

that individuals of certain racial demographics

contribute equally to “diversity” without regard to

their life experiences, values, or viewpoints.

Harvard and the University of North Carolina are not

alone. Amici’s experience is that schools have

increasingly used racial discrimination when making

admissions and other educational decisions.

The Pervasive Use of Race Cannot Be

Deemed Necessary to Satisfy a

Compelling Interest.

Harvard and UNC’s heavy use of racial preferences in

admissions reflects racial balancing of a sort that this

Court has rejected as “patently unconstitutional.”

Fisher v. University of Texas at Austin, 570 U.S. 297,

311 (Fisher I) (quoting Grutter, 539 U.S. at 330).

The compelling diversity interest recognized by this

Court consists of an institution’s efforts to achieve the

educational benefits that flow from the exchange of

varied viewpoints and perspectives, as may be

accomplished by admitting students who collectively

create a multifactored diversity. Grutter, 539 U.S. at

330; Bakke, 438 U.S. at 314. To judge a plan

exclusively against its ability to attract AfricanAmerican and Hispanic students would imply a

pretextual character to the institution’s pursuit of this

multifactored diversity. See Kenneth L. Marcus,

Diversity and Race-Neutrality, 103 NORTHWESTERN

UNIVERSITY LAW REVIEW COLLOQUY 163, 166 (2008).

Yet this is precisely what Harvard has done,

evaluating a paltry number of alternative policies to

determine whether they would result in significant

increases in the number of African American or

Hispanic applicants or admitted students. This

approach makes sense only if Harvard’s interest was

in achieving a particular racial composition to its

student body, rather than achieving the diversity-

related educational benefits that this Court’s opinions

have extolled. In other words, it makes sense only if

Harvard’s proffered interest is not the form of

diversity which this Court has found to be compelling.

During Amici’s tenure, OCR applied the correct

standard, warning against racially preferential

educational activities that are not grounded in a

compelling purpose. OCR used its experience with the

Kentucky Department of Education to underscore this

requirement in public messaging, such as a prominent

webinar:

The first complaint involved two Kentucky

Department of Education scholarship

programs.

These

programs

were

administered in a way that restricted the

awards to members of certain racial groups.

OCR found that the rationale offered—

which was increasing the number of

minority teachers, the need for minority role

models, and remedying past segregation—

were insufficient to satisfy the compelling

interest prong under Title VI, because the

diversity sought was not broader than mere

racial diversity. The school’s rationale,

therefore, was not a compelling interest that

justified the use of race by an educational

institution. The Kentucky Department of

Education voluntarily agreed to discontinue

the program in order to comply with Title

VI.

U.S. DEP’T OF EDUC., OCR WEBINAR: USE OF RACE IN

POSTSECONDARY ADMISSIONS 3–4 (Jan. 19, 2021). 10

Despite this Court’s rulings and OCR’s guidance,

Harvard and UNC continue to engage in racially

preferential activities that are unsupported by the

diversity-related educational benefits that this Court

has found to be compelling.

The Pervasive Use of Race by

Educational Institutions Is Not

Narrowly Tailored to the Goal of a

Diverse Student Body.

Similarly, Respondents’ racially preferential conduct

is not narrowly tailored within the meaning of this

Court’s decisions and OCR’s guidance. These

decisions and guidance require, inter alia, a “serious,

good-faith consideration of workable race-neutral

alternatives.” Grutter, 539 U.S. at 339. See generally

George G. La Noue & Kenneth L. Marcus, “Serious

Consideration” of Race-Neutral Alternatives in Higher

Education, 57 CATH. U. L. REV. 991 (2008) (explicating

the elements of “serious consideration”).

During Amici’s tenure, OCR reminded universities of

this requirement. For example, the webinar referred

to above underscored violations that OCR had found

at Texas Tech University Health Sciences Center:

…OCR found that even though Texas Tech

University Health Sciences Center had a

https://www2.ed.gov/about/offices/list/ocr/docs/ocr-tvi-webinarurpsa.pdf. (Transcript).

compelling interest in a diverse student

body, it had failed the “narrowly tailored”

requirement of the strict scrutiny test.

Although the school had considered race as

only one factor in its individual

consideration of applicants, it had not

documented when and how it used race as a

factor, or the necessity for the continued use

of such preferences, or whether workable

race-neutral alternatives would be as

effective in achieving similar levels of

diversity.

OCR’s investigation into the use of race at

Texas Tech University Health Sciences

Center illustrates the need for a school to

narrowly tailor the use of race as a factor,

including determining whether the school

can reach its interest in diversity through

non-racial classifications and documenting

its efforts.

U.S. DEP’T OF EDUC., OCR WEBINAR: USE OF RACE IN

POSTSECONDARY ADMISSIONS 3–4; see id. at 3 (“Before

using race, there must be serious good faith

consideration of workable race-neutral alternatives.”);

id. at 2 (“If a school can use race-neutral alternatives

to achieve their sought-after student body diversity,

then using race as an explicit factor in admissions or

financial aid is impermissible.”).

Respondents have failed to comply with this

requirement as well. If Harvard, for example, were

interested in narrowly tailoring its use of racial

preferences to achieve the educational benefits that

flow from a multi-factored diversity, it would test

whether various educational alternatives garnered

those benefits. Its failure to test and measure this

interest confirms that its interest was in racial

balancing pursued for its own sake. 11

II.

The Court’s

Unworkable.

Current

Jurisprudence

Respondents are not alone in their inability to comply

with this Court’s rulings or OCR’s guidance. In

Amici’s experience, noncompliance is pervasive

throughout American elementary, secondary, and

higher education. Worse, the Executive Branch itself

has been unable to administer this Court’s standards

in a consistent, predictable fashion, creating an

untenable situation for colleges and universities. The

Court’s present approach is unworkable because of

significant doctrinal ambiguities in the Grutter/Fisher

framework.

11 With respect to the University of North Carolina, it is correct

that in 2012, OCR found that the University had given good-faith

consideration to race-neutral alternatives. While correct that

OCR dismissed the 2006 complaint, OCR’s findings also included

the statement that the Respondent “has further committed to

end or reduce the consideration of race or national origin,” if it

could still achieve a “sufficient degree” of race-based diversity.

Letter of Findings to Dr. Holden Thorp, Chancellor, University

North

Carolina,

(Nov.

27,

2012),

https://www2.ed.gov/about/offices/list/ocr/docs/investigations/11

072016-a.html. Yet here we are, in 2022, still debating

Respondent’s use of race in admissions.

Respondents’

Violations

Reflect

Widespread Noncompliance with this

Court’s Doctrinal Framework.

OCR’s 2020 Annual Report to the Secretary, the

President, and the Congress illustrated egregious

instances of discrimination that had been the subject

of complaints regarding colleges and school districts

across the country. See U.S. DEP’T OF EDUC. OFFICE

FOR CIV. RIGHTS, ANNUAL REPORT TO THE SECRETARY,

THE PRESIDENT, AND THE CONGRESS 46 (January

2021). 12

The 2020 Annual Report demonstrated that schools

are frequently failing to comply with Title VI as

interpreted by this Court. Specifically, the Annual

Report stated:

OCR is aware of concerning reports recently

that schools across the country are

discriminating on the basis of race in

different ways. Sometimes, these reports

have involved schools’ purported efforts to

promote diversity and equity among

students but are nevertheless prohibited

because they violate Title VI. OCR has

received complaints concerning the use of

race-exclusionary policies or practices in

schools. OCR has also opened investigations

involving such complaints, including two

directed investigations involving race

https://www2.ed.gov/about/reports/annual/ocr/report-topresident-and-secretary-of-education-2020.pdf.

exclusionary practices. A few of those

investigations are briefly described below.

•

A teacher in a Chicago-area school

district filed a complaint with OCR

alleging

that

the

district

implemented a series of racial

“equity” policies and programs that

discriminated against staff, students,

and job applicants; implemented

certain policies and programs that

discriminate against staff, students,

and

job

applicants,

including

segregating staff and students into

affinity groups based on race; used

“Black Lives Matter” materials to

advocate to students that white

individuals bear collective guilt for

racism, police brutality, and other

social ills; and failed to discipline

some students appropriately by

allegedly

taking

race

into

consideration in its disciplinary

decisions.

OCR opened a directed investigation

based on reports that a university in

Kentucky segregated by race its

incoming resident assistants for

training purposes. As part of what

the

university

called

“White

Accountability Training,” resident

advisors who identified as white were

allegedly

given

training

“microaggressions”

and

“white

•

privilege,” while resident assistants

who identify as “black, indigenous,

[or] people of color,” were given

separate training.

OCR opened a directed investigation

to examine whether a university in

New York is discriminating on the

basis of race, color, or national origin

by offering and/or providing an

exemption from the requirement to

obtain vaccinations to students “who

identify as Black, Indigenous, or as a

Person of Color” based on their race,

color, or national origin.

OCR has concerns that using curricular or

training materials for students or staff

which are based on racial classifications or

stereotypes of individuals—solely based on

their race—may violate Title VI by

requiring school personnel to engage in

activities that result in the different

treatment of students based on their race, or

which constitute racial harassment. Such

policies or pedagogical practices that

perpetuate the idea that students may be

categorized by race, assigned a set of

characteristics, and be considered to possess

certain characteristics based on that race,

may subject students or staff to

discrimination in violation of Title VI.

Id. at 46 (emphasis added).

Amici have also observed the use of race accelerating

at the K-12 level, in tension with or violation of Title

VI. See, e.g., Carl Campanile, US Dept. of Education

curbs decision on race-based ‘affinity groups’, NEW

YORK POST (Mar. 7, 2021) (“The findings—reached

during the waning days of former President Trump’s

time in office in early January—were in response to a

complaint about a Chicago-area school district’s

‘racial equity’ training programs and lesson plans.”). 13

This further demonstrates the need to revisit the

Court’s approach to race-conscious educational

practices and approaches schools adopt in the name of

“diversity.”

Prior to Amici’s Tenure, OCR

Guidance Encouraged Schools to Use

Race-Conscious Policies.

The U.S. Department of Education has, at times,

encouraged race conscious policies, based on a dubious

interpretation of this Court’s precedents. For

instance, the Obama Administration provided schools

with suggestions and guidelines regarding raceconscious scholarships, student retention, and

mentoring.

On December 2, 2011, the Department of Education

and the Department of Justice issued a joint “Dear

Colleague” letter purporting to “explain how

educational institutions can lawfully pursue

voluntary policies to achieve diversity or avoid racial

isolation . . . .” U.S. DEP’T OF EDUC.’S OFFICE FOR CIV.

13 https://nypost.com/2021/03/07/education-dept-curbs-decisionon-race-based-affinity-groups/.

RIGHTS AND U.S. DEP’T OF JUST.’S CIV. RIGHTS DIV.,

GUIDANCE ON VOLUNTARY USE OF RACE TO ACHIEVE

DIVERSITY OR AVOID RACIAL ISOLATION (Dec. 2, 2011)

(“DECEMBER 2011 DEAR COLLEAGUE LETTER”). 14

The Dear Colleague letter was published with two

companion guidance documents entitled: (1) Guidance

on the Voluntary Use of Race to Achieve Diversity and

Avoid Racial Isolation in Elementary and Secondary

Schools, 15 and (2) Guidance on the Voluntary Use of

Race to Achieve Diversity in Postsecondary Education

(together, the three “December 2011 Documents”). 16

The Dear Colleague Letter stated that together, the

December 2011 Documents reviewed “three key

Supreme Court rulings on the use of race by

educational institutions.” DECEMBER 2011 DEAR

COLLEAGUE LETTER 1.

The December 2011 Documents, however, did more

than merely review the case law. Instead, they went

further, and encouraged the use of race across a broad

spectrum of educational activities:

For example, the elementary and secondary

guidance discusses school districts’ options

https://www2.ed.gov/about/offices/list/ocr/letters/colleague201111.pdf.

15 Supra, note 7.

16 U.S. DEP’T OF EDUC.’S OFFICE FOR CIV. RIGHTS AND U.S. DEP’T

OF JUST.’S CIV. RIGHTS DIV., GUIDANCE ON THE VOLUNTARY USE

OF RACE TO ACHIEVE DIVERSITY IN POSTSECONDARY EDUCATION

(Dec.

2011),

https://www2.ed.gov/about/offices/list/ocr/docs/guidance-ese201111.pdf (“DECEMBER 2011 POSTSECONDARY GUIDANCE”).

in areas such as student assignment,

student transfers, school siting, feeder

patterns, and school zoning. Similarly, the

postsecondary guidance provides examples

of how colleges and universities can further

diversity in contexts including admissions,

pipeline

programs,

recruitment

and

outreach

and

mentoring,

tutoring,

retention, and support programs.

Id. The three cases reviewed in the December 2011

Documents were Grutter v. Bollinger, 539 U.S. 306

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

Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.

No. 1, 551 U.S. 701 (2007). Additionally, the December

2011 Dear Colleague Letter withdrew guidance

documents issued during the Bush Administration.

See DECEMBER 2011 DEAR COLLEAGUE LETTER 1 (“This

guidance replaces August 2008 letters . . . .”). 17

Notably, the December 2011 Documents directly

equate race-conscious admissions policies with

obtaining a diversity of individual perspectives,

stating that “[i]nteracting with students who have

See U.S. DEP’T OF EDUC.’S OFFICE FOR CIV. RIGHTS, DEAR

COLLEAGUE LETTER ON THE USE OF RACE IN POSTSECONDARY

STUDENT

ADMISSIONS

(Aug.

28,

2008),

https://www2.ed.gov/about/offices/list/ocr/letters/raceadmissionp

se.html (withdrawn on December 2, 2011, republished on July 3,

2018); U.S. DEP’T OF EDUC.’S OFFICE FOR CIV. RIGHTS, DEAR

COLLEAGUE LETTER ON THE USE OF RACE IN ASSIGNING STUDENTS

TO ELEMENTARY AND SECONDARY SCHOOLS (Aug. 28, 2008),

https://www2.ed.gov/about/offices/list/ocr/letters/raceassignmen

tese.html (withdrawn on December 2, 2011, republished on July

3, 2018).

different perspectives and life experiences can raise

the level of academic and social discourse both inside

and outside the classroom.” DECEMBER 2011

POSTSECONDARY GUIDANCE 1. In other words, the

December 2011 Documents suggested to schools that

race is a stand-in for having students who have

“different perspectives,” such that racial diversity

necessarily entailed actual diversity of perspective

and life experiences.

Additionally, the documents drew heavily from

Justice Kennedy’s concurring opinion in Parents

Involved, 551 U.S. at 782 (Kennedy, J., concurring),

selectively embracing elements from Justice

Kennedy’s concurrence and joining them with the

views of the dissenters to offer purported affirmative

points of law. See 2011 ELEMENTARY AND SECONDARY

GUIDANCE 5 (“Although Parents Involved ultimately

was decided on other grounds, a majority of Justices

expressed the view that schools must have flexibility

in designing policies that endeavor to achieve

diversity or avoid racial isolation, and, at least where

those policies do not classify individual students by

race, can do so without triggering strict scrutiny.”). 18

To drive home the point, the December 2011

Documents prognosticated about what this Court

might do if faced with a case where a school adopted a

18 This Court has specifically cautioned against this sort of “vote

tallying” of concurrences and dissents. See, e.g., Marks v. United

States, 430 U.S. 188, 193 (1977) (advising that when the Court is

fragmented, “the holding of the Court may be viewed as the

position taken by those Members who concurred in the

judgments on the narrowest grounds.”).

host of race-conscious policies that stopped just short

of making decisions specifically based on the race of

individual students:

Thus, although there was no single majority

opinion on this point, Parents Involved

demonstrates that a majority of the

Supreme Court would be “unlikely” to apply

strict scrutiny to generalized considerations

of race that do not take account of the race

of individual students.

2011 ELEMENTARY AND SECONDARY GUIDANCE 5. 19

This analysis, although it appeared in the Elementary

and Secondary Guidance document, was not clearly

limited to that context. And, although the guidance

was reaffirmed as operative by OCR as late as 2016,20

it was in tension with Fisher II, which suggested that

“race-neutral” plans adopted for race-conscious

reasons are on just as shaky ground as outright racial

preferences. In Fisher II, this Court held:

19 Notably, one District Court in Maryland recently rejected this

precise formulation, observing that “the entirety of Justice

Kennedy’s concurrence cannot be the ‘controlling opinion’” when

“clearly the narrowest grounds reached by the majority in

Parents Involved were that the challenged policy had not been

narrowly tailored to achieve its stated ends.” Ass'n for Educ.

Fairness v. Montgomery Cty. Bd. of Educ., No. CV 8:20-02540PX, 2021 WL 4197458, at *18 (D. Md. Sept. 15, 2021).

20 See U.S. DEP’T OF EDUC.’S OFFICE FOR CIV. RIGHTS AND AND

U.S. DEP’T OF JUST.’S CIV. RIGHTS DIV., QUESTIONS AND ANSWERS

ABOUT FISHER V. UNIVERSITY OF TEXAS AT AUSTIN II at 2 (Sept.

30,

2016)

(Question

2),

https://www2.ed.gov/about/offices/list/ocr/docs/qa-fisher-ii201609.pdf.

As an initial matter, petitioner overlooks

the fact that the Top Ten Percent Plan,

though facially neutral, cannot be

understood apart from its basic purpose,

which is to boost minority enrollment.

Percentage plans are “adopted with racially

segregated neighborhoods and schools front

and center stage.” Fisher I, 570 U.S., 133 S.

Ct., at 2433 (Ginsburg, J., dissenting). “It is

race consciousness, not blindness to race,

that drives such plans.” [Id.] Consequently,

petitioner cannot assert simply that

increasing the University’s reliance on a

percentage plan would make its admissions

policy more race neutral.

Fisher II, 579 U.S. at 386 (emphasis added); see also

Students for Fair Admissions, Inc. v. President and

Fellow of Harvard College, 397 F. Supp. 3d 126, 200–

01 (D. Mass. 2019) (“[P]etitioner cannot assert simply

that increasing the University’s reliance on a

percentage plan would make its admissions policy

more race neutral. Here, just as in Fisher II, the Court

is not persuaded that such a plan would actually be

more race neutral.”) (internal quotation marks

omitted); but see Coalition for TJ v. Fairfax County

School Board, No. 22-12802022, WL 986994, at *4

(4th Cir., Mar. 31, 2022) (Heytens, J., concurring)

(asserting that existing Supreme Court precedents

have “required” public officials to consider raceneutral plans that have an intended disparate impact

on different racial demographics).

Moreover, in the December 2011 Documents, the

Department cited Justice Kennedy’s concurrence in

Parents Involved for the proposition that schools are

entitled to consider the racial impact of their decisions

on diversity and racial isolation, but only so long as

those considerations are not in furtherance of an

2011

invidious

purpose.

See

DECEMBER

POSTSECONDARY GUIDANCE 5, n.11 (“[L]eeway to

devise race-conscious measures to achieve diversity or

avoid racial isolation extends only to circumstances

where entities pursue the goal of bringing together

students of diverse backgrounds and races.”) (internal

quotation

marks

omitted);

DECEMBER 2011

ELEMENTARY AND SECONDARY GUIDANCE 5, n.11

(same).

Thus, during the Obama Administration, OCR relied

on Justice Kennedy’s concurrence in Parents Involved,

combined with the dissenters in that case, for the

proposition that some “good” race consciousness was

permitted, and not subject to strict scrutiny. This

position, however, is in deep tension with other

longstanding precedents. See Adarand Constructors v.

Pena, 515 U.S. 200, 226 (1995) (“[D]espite the surface

appeal of holding ‘benign’ racial classifications to a

lower standard, it may not always be clear that a socalled preference is in fact benign. More than good

motives should be required when government seeks to

allocate its resources by way of an explicit racial

classification system.”) (internal quotation marks and

citations omitted); see also Fisher I, 570 U.S. at 328

(Thomas, J., concurring) (“The worst forms of racial

discrimination in this Nation have always been

accompanied by straight-faced representations that

discrimination helped minorities.”); Bakke, 438 U.S.

at 307 (opinion of Powell, J.) (“Preferring members of

any one group for no reason other than race or ethnic

origin is discrimination for its own sake. This the

Constitution forbids.”); but see Coalition for TJ, 2022

WL 986994 at *4 (Heytens, J., concurring) (noting

that adopting a decision because of its expected

“adverse” effects on a racial group is impermissible,

but that Appellee had not alleged adverse affects on

Black or Hispanic applicants).

In addition to the December 2011 Documents, the

Department of Education and Department of Justice

later issued a joint guidance document after Fisher I.

U.S. DEP’T OF EDUC.’S OFFICE FOR CIV. RIGHTS AND

U.S. DEP’T OF.’S CIV. RIGHTS DIV., QUESTIONS AND

ANSWERS ABOUT FISHER V. UNIVERSITY OF TEXAS AT

AUSTIN (Sept. 27, 2013). 21 This document reiterated in

full the Departments’ earlier guidance, id. at 3, but

also characterized this Court’s decision in Fisher I as

an extremely narrow holding, which applied

essentially only to direct considerations of race with

respect to individual students. The Departments went

on to suggest ways that schools could generate “racial

diversity” by sidestepping this Court’s precedents. Id.

at 2. Specifically, the Departments stated: “The

Court’s opinion does not address a college or

university’s ability to promote diversity through other

efforts that do not consider an individual’s race in

admissions, such as engaging in targeted outreach

and recruitment or partnering with high schools

https://www2.ed.gov/about/offices/list/ocr/docs/qa-fisher-ii201609.pdf.

through pipelines programs to promote student body

diversity.” Id. at 2 (Answer 2).

Catherine Lhamon, who previously served under

President Obama, and now serves again under

President Biden, as Assistant Secretary for the Office

for Civil Rights, echoed her prior position—of tallying

the votes of Justice Kennedy and the dissenters in

Parents Involved—in her Questions for the Record,

addressed to the U.S. Senate:

[Question] 25. Has the U.S. Supreme Court

ever ruled that K-12 schools have a

compelling state interest in a student body

diversity?

[Answer] In Parents Involved in Cmty. Sch.

v. Seattle Sch. Dist. No. 1, 551 U.S. 701

(2007), a majority of the justices on the

Supreme Court recognized the compelling

interests that K-12 schools have in obtaining

the benefits that flow from achieving a

diverse student body and avoiding racial

isolation. Justice Kennedy, in concurrence,

explained that he was in agreement with

Justice Breyer’s dissenting opinion, which

was joined by Justices Stevens, Souter, and

Ginsburg, in recognizing these compelling

interests.

[Question] 26. Has the U.S. Supreme Court

ever recognized “reducing racial isolation” as

a compelling state interest that justifies

racial preferences at the K-12 level?

[Answer] Please see the previous answer.

See U.S. Senate Health Committee Questions for the

Record for Catherine Lhamon, Nominee to be

Assistant Secretary for Civil Rights, Department of

Education (July 14, 2021), at 14-15 (emphasis

added). 22

Indeed, even before Ms. Lhamon’s confirmation in

October 2021, OCR had announced that much of the

Obama administration’s rescinded guidance was back

“under review” as of July 30, 2021. While these

documents have not yet been fully reinstated, the

message to schools and students is that they may soon

be, so schools may need not heed the fact that they

were rescinded in 2018. See “Under Review” Portal,

Department of Education Office for Civil Rights. 23

Between 2017 and 2021, OCR Withdrew

Prior Guidance and Published New

Material to Encourage Compliance

with This Court’s Precedents.

After reviewing and considering the guidance

documents published between 2011 and 2016 on the

topic of race-conscious policies, the Departments of

Justice and Education jointly withdrew them all. On

July 3, 2018, the Departments wrote in a Dear

https://mslegal.org/wp-content/uploads/2021/08/RepublicanHELP-Committee-QFRs-for-OCR-Nominee-Catherine-Lhamon7.19.21.pdf.

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policy

guidance/underreview.html (last visited April 28, 2022).

Colleague Letter: “The Departments have reviewed

the documents and have concluded that they advocate

policy preferences and positions beyond the

requirements of the Constitution, Title IV, and Title

VI.” 24

Schools continued to struggle, however, with issues of

race during Amici’s tenure. In 2020, for instance,

schools were confronted with the COVID-19

pandemic, which caused many institutions to cease inperson instruction. As schools began reopening their

physical spaces, OCR received reports that schools

would re-open specifically by allowing students of

certain racial demographics to return first. OCR was

forced to respond to these troubling reports as part of

its public-facing policy guidance. U.S. DEP’T OF

EDUC.’S OFFICE FOR CIV. RIGHTS, QUESTIONS AND

ANSWERS FOR K-12 PUBLIC SCHOOLS IN THE CURRENT

COVID-19 ENVIRONMENT (Sept. 28, 2020). 25 In one

document, OCR answered the following question:

Question 1:

As school districts phase in the use of

physical facilities and in-person instruction

as a part of their reopening plans, may they

prioritize students’ return to in-person

24 U.S. DEP’T OF EDUC.’S OFFICE FOR CIV. RIGHTS AND U.S. DEP’T

OF JUST.’S CIV. RIGHTS DIV., UPDATES TO DEPARTMENT OF

EDUCATION AND DEPARTMENT OF JUSTICE GUIDANCE ON TITLE VI

(July

2018),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-titlevi-201807.pdf.

https://www2.ed.gov/about/offices/list/ocr/docs/qa-covid20200928.pdf.

instruction based on their race, color, or

national origin?

Answer:

No. A reopening plan—or any school

policy—that prioritizes, otherwise gives

preference to, or limits programs, supports

or services to students based on their race,

color, or national origin—regardless of how

that plan is formulated—would likely

violate Title VI of the Civil Rights of 1964.

Id. at 1 (citing Gratz, 539 U.S. at 275).

Separately, in another OCR webinar posted on

January 19, 2021, OCR offered several statements

advising schools of basic legal propositions pursuant

to Title VI. OCR noted:

Unfortunately, OCR is aware of recent

concerning reports that schools across the

country are discriminating on the basis of

race in different ways. Sometimes, these

reports have involved schools’ purported

efforts to promote diversity and equity

among students, but are nevertheless

prohibited because they violate Title VI.

OCR offers this video to highlight how these

and other examples may create Title VI

violations.

U.S. DEP’T OF EDUC., OCR WEBINAR: RACIALLY

EXCLUSIVE PRACTICES AND TITLE VI 1 (Jan. 19, 2021)

(Transcript). 26 The webinar offered several examples

of diversity, equity, and inclusion programs that run

afoul of Title VI:

For instance, schools may not designate

certain housing or dormitories only for

students of a specific race, or exclude

students of a particular race or races from

such housing.

Similarly,

schools may

not

create

designated “safe spaces” that admit or

exclude individuals on the basis of race.

Also, since the Supreme Court’s landmark

1954 decision in Brown v. Board of

Education, schools have been barred from

segregating students according to race in

classes, seminars, lectures, trainings,

athletics,

clubs,

orientations,

award

ceremonies, graduations, or other meetings.

This includes, of course, segregation that

occurs in a virtual or online format as well.

…

Schools are also not permitted to ask that

certain students engage with the class in a

specific manner, based on race. Similarly, it

is improper to give students of a particular

race extra time or resources, such as the use

of notes or textbooks, to complete an

https://www2.ed.gov/about/offices/list/ocr/docs/ocr-tviwebinar-reptvi.pdf.

assignment. Schools also may not grade

students differently or apply different

grading criteria to students based on race.

Id. at 2. Separately, the webinar addressed troubling

complaints that schools were using curricular

materials that separated students by race and

described racial demographic groups as having

particular characteristics. OCR noted:

One example that might violate Title VI is

advocating a position that a particular race

is collectively guilty of misconduct, or

advocating a position that a particular race

or something about that race is negative or

evil. Title VI might also be violated if part of

a curriculum instructs students that

members of a particular race or racial

identity pose specific dangers to other

individuals, or if it advocates or forces

members of certain races to deconstruct or

confront their racial identities. For instance,

a school may not advocate that students

adopt specific beliefs based on their race,

such as urging that white students be white

without signing on to whiteness. These sorts

of exercises would also be impermissible if

used in the context of ascribing specific

characteristics or qualities to all members of

other races.

Id. at 2–3. These materials were designed to address

what Amici considered to be the escalating use of race

across the American educational spaces.

The Biden Administration has Signaled

its Commitment to Increasing the Use

of Race in Education.

Since January 2021, the Biden Administration has

reversed course again, rescinding the webinars issued

during Amici’s time regarding the limited lawful use

of race in admissions, dormitory assignments,

classwork, grading, discipline, returning only certain

students to schools after COVID-19, and other arenas.

Similarly, it withdrew the webinar addressing longestablished caselaw in the context of the use of race in

postsecondary admissions. Now, both documents are

flagged with a warning that they are “ARCHIVED

AND NOT FOR RELIANCE,” based on the claim that

each document “expresses policy that is inconsistent

in many respects with Executive Order 13985 on

Advancing Racial Equity and Support for

Underserved Communities through the Federal

Government.” 27

OCR’s recent Evanston investigation further

illustrates the wild fluctuations in the Executive

EXECUTIVE ORDER 13985, ADVANCING RACIAL EQUITY AND

SUPPORT FOR UNDERSERVED COMMUNITIES THROUGH THE

FEDERAL GOVERNMENT, 86 Fed. Reg. 7009 (Jan. 25, 2021),

https://www.govinfo.gov/content/pkg/FR-2021-01-25/pdf/202101753.pdf. The webinar transcripts also state that they were

withdrawn because they were issued without “the review

required under the Department’s Rulemaking and Guidance

Procedures,” although, of course, webinars describing recent

OCR cases and black letter law are neither policy guidance nor

agency rules.

Branch’s response to race-conscious educational

activities.

As reported in the New York Post, OCR’s findings

included that Evanston/Skokie had engaged in

extensive conduct that violated Title VI, including:



Separating

administrators

professional

development

training

program in August, 2019 into two groups

based on race—white and non-white.



Offering various “racially exclusive

affinity groups” that separated students,

parents and community members by race.



Implementing a disciplinary policy that

included “explicit direction” to staffers to

consider a student’s race when meting out

discipline.



Carried out a “Colorism Privilege Walk”

that separated seventh and eight grade

students into different groups based on

race.

“If you are white take 2 steps forward. If

you’re a person of color with dark skin, take

2 steps back. If you’re black, take 2 steps

back,” the privilege walk exercise said.

The goal was for white students to “learn

more about white privilege, internalized

dominance, microaggressions and how to act

as an ally for students of color,” the lesson

plan said.

…

“These materials would have led students to

be treated differently based on their race,

depriving them of a class free from racial

recrimination and hostility. Such treatment

has no place in federally-funded programs

or activities, nor is it protected by the First

Amendment.”

Carl Campanile, US Dept. of Education curbs decision

on race-based ‘affinity groups’, NEW YORK POST (Mar.

7, 2021) (list formatting altered). 28

After President Biden took office, however, a

spokesperson for the Department of Education

confirmed

that

the

investigation

into

Evanston/Skokie School District has been suspended,

“pending its reconsideration of the case in light of the

executive orders on racial equity issued by President

Biden.” See Houston Keene, Biden admin suspends

28 Additionally, the draft Letter of Finding was obtained as part

of a Freedom of Information Request submitted by the

Southeastern Legal Foundation, and is available publicly here:

https://345h6j74bj93ldnop2phvizr-wpengine.netdna-ssl.com/wpcontent/uploads/sites/12/2021/06/Letter-of-Finding.pdf; id. at 1

(“Beginning in the 2017-18 school year, and continuing through

the 2020-21 school year, the District implemented certain

policies and programs that discriminate against staff, students,

and job applicants on the basis of race (white), including

separating staff and students into affinity groups based on

race.”).

probe into school allegedly segregating students by

race; Rep. Owens blasts decision (Mar. 11, 2021). 29

In other words, what Amici determined to be a

textbook example of race discrimination against

teachers and students—a matter so egregious that it

was highlighted in OCR’s 2020 Annual Report to

Congress—the Biden Administration instead found to

be a potentially lawful approach to racial equity. This

turn-about on a high-profile OCR enforcement

determination is unusual in OCR’s history to say the

least.

III.

This Court Must Establish a Clear Rule

against

Racial

Discrimination

Education.

While the ambiguity of this Court’s jurisprudence has

encouraged some administrations to encourage racial

discrimination in the admissions process and others

to oppose it, there is a right answer. This Court

should explicitly end the Grutter/Fisher regime and

establish that answer with certainty: Title VI and the

Constitution do not permit racial discrimination in

admissions.

While the last several years have seen the rise of

“equity,” “diversity,” and “inclusion” campaigns that

openly call for considering race even more, the U.S.

Constitution and Title VI protect against such

discrimination. Under our Constitution, “[i]n the eyes

of government, we are just one race here. It is

https://www.foxnews.com/politics/biden-admin-educationdepartment-racial-segregation-burgess-owens.

American.” Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 239 (1995) (Scalia, J., concurring); see also

Loving v. Virginia, 388 U.S. 1, 10 (1967) (“The clear

and central purpose of the Fourteenth Amendment

was to eliminate all official state sources of invidious

racial discrimination in the States.”).

The cases relying on the idea that diversity interests

justify racial discrimination—Bakke, Grutter, and

Fisher II—are the jurisprudential outliers in the

world of equal protection and the Fourteenth

Amendment. And the Court’s precedents have even

led government entities like OCR to encourage the use

of race in several contexts. Now is the time to correct

this error.

The Equal Protection Clause establishes categorically

that no state shall deny any person the equal

protection of the law. U.S. Const. amend. XIV, cl. 1.

The goal of the Fourteenth Amendment was the

“abolition of all distinctions founded on color and

race.” 2 Cong. Rec. 4083 (1874). And in other contexts,

this Court has shown the courage to embrace the

principle embodied in both the text and history of the

Constitution. See, e.g., Flowers v. Mississippi, 139 S.

Ct. 2228, 2240-41 (2019) (“[T]he central concern of the

Fourteenth Amendment was to put an end to

governmental discrimination on account of race.”)

(internal quotation marks omitted); see id. at 2242

(“Discrimination against one defendant or juror on

account of race is not remedied or cured by

discrimination against other defendants or jurors on

account of race.”); Trump v. Hawaii, 138 S.Ct. 2392,

2423 (2018) (“The forcible relocation of U.S. citizens to

concentration camps, solely and explicitly on the basis

of race, is objectively unlawful and outside the scope

of Presidential authority.”).

But the Court’s prior affirmative action cases have

departed from the Constitution’s categorical rule in

favor of the principle that some equal protections are

less equal than others: “not every decision influenced

by race is equally objectionable.” Grutter, 539 U.S. at

327. It has accordingly announced that “the

educational benefits that flow from a diverse student

body” justify an exception to the general principle of

equal protection when it came to college admissions.

Id. at 328.

The Grutter Court’s decision also came with its own

expiration date. Id. at 310 (“The Court expects that 25

years from now, the use of racial preferences will no

longer be necessary to further the interest approved

today.”). These cases were filed in 2014. If another

case were filed today, and reached this Court seven

years from now, this Court’s consideration of those

cases would occur beyond the 25-year timeline, in

2029. Thankfully, nothing in Grutter is inconsistent

with a return to principled enforcement of the Equal

Protection Clause now, after a slightly shorter

departure of two decades. This Court should announce

that racial discrimination must stop in American

higher education and that the Grutter regime has

therefore ended.

♦

CONCLUSION

For the foregoing reasons, this Court should

grant judgment in favor of Respondents.

Respectfully submitted,

William E. Trachman

Counsel of Record

Joseph A. Bingham

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(720) 640-8713

wtrachman@mslegal.org

May 6, 2022

Attorneys for Amici 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.