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

Nos. 20-1199 & 21-707

In the Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER

v.

PRESIDENT & FELLOWS OF HARVARD COLLEGE

STUDENTS FOR FAIR ADMISSIONS, INC., PETITIONER

v.

UNIVERSITY OF NORTH CAROLINA, ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURTS OF APPEALS

FOR THE FIRST AND FOURTH CIRCUITS

BRIEF FOR THE STATE OF TEXAS

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

JUDD E. STONE II

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

RANCE CRAFT

Assistant Solicitor General

QU ES TIO N S PR ES E NTED

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 race-based

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 in

racial balancing, overemphasizing race, and rejecting

workable race-neutral alternatives?

3. The Constitution and Title VI ban race-based

admissions unless they are “‘necessary’” to achieve the

educational benefits of diversity. Fisher v. Univ. of Tex.

at Austin, 570 U.S. 297, 312 (2013). Can the University

of North Carolina reject a race-neutral alternative

because the composition of its student body would

change, without proving that the alternative would cause

a dramatic sacrifice in academic quality or the

educational benefits of overall student-body diversity?

(I)

TA BLE OF C ONTE N TS

Page

Questions Presented ......................................................... I

Table of Authorities ....................................................... III

Interest of Amicus Curiae ................................................ 1

Introduction....................................................................... 2

Summary of Argument ..................................................... 3

Argument........................................................................... 4

I. Grutter Was an Unprincipled Departure from

This Court’s Rule That Racial Preferences Are

Unacceptable ......................................................... 4

A. This Court has recognized in every other

context that the Constitution forbids racial

discrimination .................................................. 5

B. Higher-education admissions is the only

context where a party accused of

discrimination may determine whether

discrimination is necessary ............................. 8

II. Experience Demonstrates That the Grutter

Standard Is Unworkable .................................... 13

A. Texas’s experiences with affirmative action

demonstrate that Grutter is unworkable ..... 14

B. The experience of petitioner’s members

further demonstrates the theoretical

problems behind Grutter .............................. 21

III. This Court Has Undermined Grutter in

Subsequent Case Law ......................................... 26

IV. Purported Reliance Interests Are No Basis To

Retain Grutter ..................................................... 27

Conclusion ....................................................................... 29

(II)

III

TA BLE OF AU T HOR I TIE S

Page(s)

Cases:

Adarand Constructors, Inc. v. Peña,

515 U.S. 200 (1995) ..................................................... 5, 6

Bolling v. Sharpe,

347 U.S. 497 (1954) ......................................................... 5

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011) ....................................................... 10

Brown v. Board of Education,

347 U.S. 483 (1954) ................................................. 2, 6, 9

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) .............................................. passim

The Civil Rights Cases,

109 U.S. 3 (1883) ........................................................... 21

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991) ......................................................... 5

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) .............................................. passim

Fisher v. Univ. of Tex. at Austin,

579 U.S. 365 (2016) .............................................. passim

Fisher v. Univ. of Tex. at Austin,

631 F.3d 213 (5th Cir. 2011) ........................................ 17

Fisher v. Univ. of Tex. at Austin,

758 F.3d 633 (5th Cir. 2014) ........................................ 18

Flowers v. Mississippi,

139 S. Ct. 2228 (2019) ..................................................... 5

Franchise Tax. Bd. of Cal. v. Hyatt,

139 S. Ct. 1485 (2019) ................................................. 3, 4

IV

Cases—Continued:

Page(s)

Freeman v. Pitts,

504 U.S. 467 (1992) ....................................................... 22

Gratz v. Bollinger,

539 U.S. 244 (2003) .............................................. passim

Griffin v. Cty. Sch. Bd. of Prince Edward Cty.,

377 U.S. 218 (1964) ....................................................... 25

Grutter v. Bollinger,

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

Hopwood v. Texas,

78 F.3d 932 (5th Cir. 1996) ................................ 9, 15, 16

Janus v. AFSCME, Council 31,

138 S. Ct. 2448 (2018) ................................................. 3, 4

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015) ......................................................... 3

Knick v. Township of Scott,

139 S. Ct. 2162 (2019) ................................................... 27

Korematsu v. United States,

323 U.S. 214 (1944) ............................................... 6, 7, 23

Loving v. Virginia,

388 U.S. 1 (1967) ............................................................. 6

Metro Broad., Inc. v. FCC,

497 U.S. 547 (1990) ......................................................... 5

Miller v. Johnson,

515 U.S. 900 (1995) ................................................. 11, 28

Milliken v. Bradley,

433 U.S. 267 (1977) ......................................................... 8

Palmore v. Sidoti,

466 U.S. 429 (1984) ......................................................... 7

V

Cases—Continued:

Page(s)

Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1,

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

Pearson v. Callahan,

555 U.S. 223 (2009) ......................................................... 3

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................................. 1, 2, 7

Powers v. Ohio,

499 U.S. 400 (1991) ....................................................... 11

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ................................................... 27

Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ................................................. 10, 11

Rice v. Cayetano,

528 U.S. 495 (2000) ................................................... 5, 28

Schuette v. BAMN,

572 U.S. 291 (2014) ................................................. 11, 14

Shaw v. Hunt,

517 U.S. 899 (1996) ......................................................... 7

Shelley v. Kraemer,

334 U.S. 1 (1948) ........................................................... 10

Sweatt v. Painter,

339 U.S. 629 (1950) ............................................. 2, 15, 21

Trump v. Hawaii,

138 S. Ct. 2392 (2018) ..................................................... 7

United States v. Gaudin,

515 U.S. 506 (1995) ..................................................... 3, 4

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) ..................................................... 7, 9

VI

Constitutional Provisions and Statutes:

U.S. Const.:

amend. I......................................................................... 10

amend. V.......................................................................... 6

amend. XIV ..................................................... 5, 6, 10, 14

Tex. Educ. Code § 51.803................................................... 16

Miscellaneous:

J.H. Ely, The Constitutionality of Reverse Racial

Discrimination,

41 U. Chi. L. Rev. 723 (1974) ...................................... 7-8

Hua Hsu, The Muddled History of Anti-Asian

Violence, The New Yorker (Feb. 28, 2021)................ 23

Trina Jones, The Diversity Rationale: A

Problematic Solution,

1 Stan. J. C.R. & C.L. 171 (2005) ............................... 12

Brian N. Lizotte, The Diversity Rationale:

Unprovable, Uncompelling,

11 Mich. J. Race & L. 625 (2006) ................................ 13

Jared M. Mellott, The Diversity Rationale for

Affirmative Action in Employment After

Grutter: The Case for Containment,

48 Wm. & Mary L. Rev. 1091 (2006) ............................ 7

Claire Parker, UT-Austin has no plans to drop

affirmative action policy, despite new Trump

administration guidelines,

The Texas Tribune (July 3, 2018) ............................... 19

Bill Powers, Op. Ed.: Why Schools Still Need

Affirmative Action, Nat’l L.J. (Aug. 4, 2014) ........... 11

VII

Miscellaneous—Continued:

Page(s)

Press Release, UT News, Statement on

Admissions Policies (July 3, 2018) .............................. 19

Press Release, UT News, University of

Texas at Austin President Responds to

Supreme Court Ruling (June 23, 2016) ...................... 19

Mark T. Terrell, Bucking Grutter: Why

Critical Mass Should Be Thrown Off

the Affirmative-Action Horse,

16 Tex. J. C.L. & C.R. 233 (2011) .......................... 12-13

Texas Higher Education Coordinating Board,

Enrollment Forecast 2021–2035 (Jan. 2021) ............... 1

University of Texas at Austin, Report on

the Implementation of SB 175, 81st

Legislature, for the period ending Fall

2018 ................................................................................ 20

University of Texas at Austin, Report on the

Implementation of SB 175, 81st

Legislature, for the period ending Fall

2020 ................................................................................ 20

University of Texas Office of Institutional

Reporting, Research, and Information

Systems, 2020–21 Statistical Handbook ................... 20

Matthew Watkins & Neena Satija, At A&M,

Diversity Increases Without Affirmative

Action, The Texas Tribune (June 19, 2016) .............. 21

INTE RE ST O F A MIC U S C U R IA E

This month, thousands of students will graduate from

the State of Texas’s 118 higher-education institutions,

which enroll roughly 1.5 million students.1 The admissions practices of Texas’s public colleges and universities

have frequently been challenged on equal-protection

grounds. For years, these institutions have struggled to

comply with this Court’s sometimes-conflicting guidance. The State of Texas has a unique perspective on the

ongoing impact of race in American colleges and universities.

This month also marks the 126th anniversary of

Plessy v. Ferguson, 163 U.S. 537 (1896), which is now

rightly derided for endorsing a view of racial inequality

that has no place in a free society. Dissenting alone, Justice Harlan exhorted that “[o]ur constitution is colorblind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Id. at 559. Justice Harlan’s view now holds

sway in almost every context. Higher-education admissions is a conspicuous exception.

These cases provide the opportunity to correct that

shameful anomaly. Texas’s experience underscores why

this Court should renounce its prior decisions and hold

that racial discrimination has no more place on a college

campus than it does in any other area of our public life.

Texas Higher Education Coordinating Board, Enrollment

Forecast 2021–2035 (Jan. 2021), https://tinyurl.com/njn8d98w. No

counsel for any party authored this brief, in whole or in part. No

person or entity other than amicus contributed monetarily to its

preparation or submission. All parties have consented to its filing.

1

(1)

2

INT RODU C TION

Abigail Fisher was right. Over seventy years ago,

Justice Marshall wrote on behalf of a different applicant

to the University of Texas that “[t]he basic law of our

land, as crystallized in our Constitution, rejects any distinctions made by government on the basis of race, creed,

or color.” Brief for Petitioner at 75, Sweatt v. Painter,

339 U.S. 629 (1950) (No. 44). The Court agreed, 339 U.S.

at 635–36, paving the way to overturning Plessy in

Brown v. Board of Education, 347 U.S. 483 (1954).

In 2008, relying on that basic law, Fisher sought admission to “the most renowned campus of the Texas state

university system.” Fisher v. Univ. of Tex. at Austin, 570

U.S. 297, 304 (2013) (Fisher II). The University of Texas

considered her less worthy of admission because of her

race. Id. at 305. Applying a line of decisions culminating

in Grutter v. Bollinger, 539 U.S. 306 (2003), this Court

permitted the University’s administrators to deny

Fisher the Constitution’s promise of racial equality in favor of the administrators’ subjective views of racial equity. Fisher II, 570 U.S. at 305.

The University of Texas was wrong. And the University of North Carolina and Harvard, respondents here,

wrong Asian Americans by denying them an equal admissions process.2 “The moral imperative of racial neutrality is the driving force of the Equal Protection

Clause.” City of Richmond v. J.A. Croson Co., 488 U.S.

469, 518 (1989) (Kennedy, J., concurring). As a state university, UNC must comply with that constitutional guarantee. Sweatt, 339 U.S. at 635–36. And because Harvard

has chosen to accept federal funding, it is held to the

Like petitioner, Texas uses the term “Asian Americans” only

because that is what Harvard does. Pet’r Br. 15 n.1.

2

3

same standard. Gratz v. Bollinger, 539 U.S. 244, 276 n.23

(2003). That standard would not permit racial preferences in other contexts, and it should not do so here. This

Court should overrule Grutter and finally put into practice its statement in Fisher II that “[t]he higher education dynamic does not change the narrow tailoring analysis” applicable to racial discrimination. 570 U.S. at 314.

SU M MA RY O F A RGU MENT

Texas understands that “[o]verruling precedent is

never a small matter.” Kimble v. Marvel Ent., LLC, 576

U.S. 446, 455 (2015). “But stare decisis is ‘not an

inexorable command.’” Franchise Tax. Bd. of Cal. v.

Hyatt, 139 S. Ct. 1485, 1499 (2019) (quoting Pearson v.

Callahan, 555 U.S. 223, 233 (2009)). This Court

sometimes reconsiders one of its decisions when it

implicates constitutional rights, deviates substantially

from this Court’s other decisions, proves unworkable,

rests on later-discredited doctrines, or generates few

cognizable reliance interests. Id. (citing Janus v.

AFSCME, Council 31, 138 S. Ct. 2448, 2478–79 (2018);

United States v. Gaudin, 515 U.S. 506, 521 (1995)).

Each of these factors is present in Grutter, which was

wrong the day it was decided. First, Grutter’s deference

to university officials who discriminate on the basis of

race flouted this Court’s rule that the proponent of a racial classification must prove both that it serves a compelling state function and that no race-neutral option is

available. Second, at best, Grutter has led to confusion.

At worst, it has given a thin veneer of judicial respectability to “patently unconstitutional” practices that

“amount to outright racial balancing.” Fisher II, 570 U.S.

at 311. Third, this Court has severely undercut Grutter’s

key premise that a State has a compelling interest in promoting the educational benefits that some associate with

4

“diversity.” Parents Involved in Cmty. Schs. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701, 732 (2007). Fourth, there

are no significant reliance interests implicated. Grutter

was always intended to be a temporary measure, and its

self-imposed lifespan has almost expired. Meanwhile, the

interim experience has demonstrated that universities

can survive—indeed, thrive—without racially profiling

their applicants.

ARGU MEN T

The time has come for the Court to overrule Grutter.

“The Court’s precedents identify a number of factors to

consider” when deciding whether to overturn prior precedent, including “the quality of the decision’s reasoning;

its consistency with related decisions; legal developments since the decision; and reliance on the decision.”

Franchise Tax. Bd., 139 S. Ct. at 1499 (citing Janus, 138

S. Ct. at 2478–79; Gaudin, 515 U.S. at 521)). Each of

those factors weighs in favor of repudiating Grutter’s

anomalous acceptance of overt racial discrimination.

I. Grutter Was an Unprincipled Departure from

This Court’s Rule That Racial Preferences Are

Unacceptable.

Grutter was not merely wrong the day it was decided;

it placed this Court’s imprimatur on state-imposed and

state-funded race discrimination. 539 U.S. at 378

(Thomas, J., dissenting). It permitted racial balancing,

id. at 385–86 (Rehnquist, C.J., dissenting), to further an

interest that the perpetrators have not been able to

clearly articulate in two decades, see Fisher v. Univ. of

Tex. at Austin, 579 U.S. 365, 401–04 (2016) (Fisher IV)

(Alito, J., dissenting). That amorphous interest in “diversity” is not considered “compelling” in any other context,

and it should not be here.

5

A. This Court has recognized in every other

context that the Constitution forbids racial

discrimination.

1. Until 2003, this Court consistently held that

“[r]acial discrimination [is] invidious in all contexts.” Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619

(1991). For decades, the Court stressed that racial preferences are “by their very nature odious to a free people.” Rice v. Cayetano, 528 U.S. 495, 517 (2000). They are

“contrary to our traditions and hence constitutionally

suspect.” Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

This suspicion did not “depen[d] on the race of those

burdened or benefited by a particular classification.”

Gratz, 539 U.S. at 270. Though the Fourteenth Amendment was indisputably passed to ensure full legal equality for African Americans in the wake of the Civil War,

Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019), it is

well established that “any person, of whatever race, has

the right to demand that any governmental actor subject

to the Constitution justify any racial classification subjecting that person to unequal treatment.” Gratz, 539

U.S. at 270; see also, e.g., Adarand Constructors, Inc. v.

Peña, 515 U.S. 200, 222 (1995) (“‘[T]he standard of review under the Equal Protection Clause is not dependent

on the race of those burdened or benefited by a particular classification.’” (quoting Croson, 488 U.S. at 494)).

And the analysis did not depend on whether proponents considered the discrimination “benign.” Indeed,

“‘benign’ carries with it no independent meaning, but reflects only acceptance of the current generation’s conclusion that a politically acceptable burden, imposed on particular citizens on the basis of race, is reasonable.” Metro

Broad., Inc. v. FCC, 497 U.S. 547, 610 (1990) (O’Connor,

J., dissenting); see also, e.g., Fisher II, 570 U.S. at 328

6

(Thomas, J., concurring); Parents Involved, 551 U.S. at

742.

Race therefore “seldom provide[s] a relevant basis

for disparate treatment.” Croson, 488 U.S. at 505. Instead, “[p]urchased at the price of immeasurable human

suffering,” the Equal Protection Clause and Title VI “reflect[] our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” Adarand Constructors, 515 U.S. at

240 (Thomas, J., concurring). That is, the “the Fifth and

Fourteenth Amendments to the Constitution protect

persons, not groups.” Id. at 227 (majority op.). The existence of preferences creates a “stigma” toward the preferred class, which “unfairly marks those . . . who would

succeed without discrimination.” Grutter, 539 U.S. at 373

(Thomas, J., dissenting). As a result, even the most nominally benign racial classification “demeans us all.” Id. at

353. And until 2003, all distinctions based on race were

subjected to the “most rigid scrutiny.” Loving v. Virginia, 388 U.S. 1, 11 (1967).

2. Even now, outside the university-admissions context, “[i]t is well established that when the government

distributes burdens or benefits on the basis of individual

racial classifications, that action is reviewed under strict

scrutiny.” Parents Involved, 551 U.S. at 720. The proponent of a racial classification must prove “that the reasons for any [racial] classification [are] clearly identified

and unquestionably legitimate.” Fisher II, 570 U.S. at

310. There is only one constitutionally viable reason for

state-sponsored racial classifications: remedying past

acts of de jure segregation. See Croson, 488 U.S. at 500.3

Before Brown, Korematsu v. United States held that a

“[p]ressing public necessity may sometimes justify the existence of”

racial discrimination. 323 U.S. 214, 216 (1944). But this rule was

3

7

Protecting the best interest of a child is insufficient. Palmore v. Sidoti, 466 U.S. 429, 433 (1984). Even remedying

de facto discrimination will not do absent past de jure

segregation. Shaw v. Hunt, 517 U.S. 899, 909 (1996). Outside higher education, this Court has taken the view that

the best “way to stop discrimination on the basis of race

is to stop discriminating on the basis of race.” Parents

Involved, 551 U.S. at 748; Jared M. Mellott, The Diversity Rationale for Affirmative Action in Employment

After Grutter: The Case for Containment, 48 Wm. &

Mary L. Rev. 1091, 1101 (2006) (summarizing the Court’s

jurisprudence as having “consistently . . . invalidated policies predicated on the interest of remediation of societal

discrimination as too amorphous”).

3. Until Grutter, the Court also required the proponent of racial stereotyping to have a “strong basis in evidence for its conclusion that remedial action [is] necessary.” Parents Involved, 551 U.S. at 754–55 (Thomas, J.,

concurring) (citing Croson, 488 U.S. at 500). Specifically,

this Court held that the governmental entity that sought

to use a racial distinction must show that “the means chosen to accomplish the State’s asserted purpose [is] specifically and narrowly framed to accomplish [the specified] purpose.” Wygant v. Jackson Bd. of Educ., 476 U.S.

267, 280 (1986). To be narrowly tailored, “the classification at issue must ‘fit’ with greater precision than any alternative means.” Id. at 280 n.6 (citing J.H. Ely, The

Constitutionality of Reverse Racial Discrimination, 41

born of war and never applied in peace. More importantly, like

Plessy, Korematsu is now understood to have been “gravely wrong

the day it was decided.” Trump v. Hawaii, 138 S. Ct. 2392, 2423

(2018). Its view that the rights of the individual to be free of racial

discrimination must bend to ill-defined notions of the greater good

has “no place in law under the Constitution.” Id.

8

U. Chi. L. Rev. 723, 727 n.26 (1974)); accord Milliken v.

Bradley, 433 U.S. 267, 280–81 (1977) (requiring remedial

action to be “designed as nearly as possible to restore the

victims of discriminatory conduct to the position they

would have occupied in the absence of such conduct”).

That is, neither political convenience nor policy preference is enough: the Constitution “forbids the use even of

narrowly drawn racial classifications except as a last resort.” Croson, 488 U.S. at 519 (Kennedy, J., concurring).

B. Higher-education admissions is the only

context

where

a

party

accused

of

discrimination may determine whether

discrimination is necessary.

Grutter starkly departed from this Court’s long-held

skepticism regarding racial discrimination. Though purporting to apply strict scrutiny, Grutter departed from

prior precedent in three ways, by: (1) distinguishing between so-called benign and malicious discrimination;

(2) accepting a justification for racial discrimination untethered to curing past de jure discrimination; and

(3) deferring to the alleged perpetrator’s determination

that the discrimination is necessary to serve the nominally benign goal.

1. As an initial matter, Grutter was the first time the

Court countenanced the concept of “benign” racial discrimination, allowing universities to consider race in admissions so long as it was a “plus” factor in an admissions

file. Grutter, 539 U.S. at 334. These policies overtly racially discriminate against certain applicants in favor of

others: college admissions are a zero-sum game. Fisher

IV, 579 U.S. at 410 n.4 (Alito, J., dissenting). Universities

have only so many beds in their dormitories and seats in

their classrooms. See Harv.Pet.App.66; UNC.Pet.App.

169. Giving an advantage to one applicant based on skin

9

color necessarily disadvantages all other applicants. Cf.

Harv.Pet.App.133 (describing Harvard’s “lop process”).

Harvard’s and UNC’s racial preferences are currently designed to benefit traditionally underrepresented minority populations. E.g., Harv.Pet.App.68–69;

UNC.Pet.App. 15 & n.7, 37. But the same arguments that

“racial discrimination may produce ‘educational benefits’” were made to justify segregation in the era before

Brown. Fisher IV, 579 U.S. at 389 (Thomas, J., dissenting) (quoting Fisher II, 570 U.S. at 319 (Thomas, J., concurring)). This Court rejected these arguments when

they were used to benefit Caucasians. See id. And it has

rejected similar justifications for discrimination when it

has been designed to benefit racial minorities in other

contexts. Croson, 488 U.S. at 501 (addressing a “disparity” in government contracts).

2. Grutter was also the first time that the Court concluded that the “educational benefits that flow from a diverse student body” represent a compelling state interest, even without evidence of past de jure discrimination.

539 U.S. at 317–19. This was an abrupt break given that

the Court had explicitly rejected a nearly identical argument to justify racial differentiation in faculty hiring.

Wygant, 476 U.S. at 275–76. Lower courts understood

this rejection in the faculty context as applying to student admissions as well. E.g., Hopwood v. Texas, 78 F.3d

932, 935–38 (5th Cir. 1996). Since Grutter, this Court has

even rejected diversity as a compelling state interest in

assigning students to elementary and secondary schools.

Parents Involved, 551 U.S. at 723–25. College admissions departments stand alone.

Grutter never provided a principled reason for why

student-body diversity was sufficiently compelling in

higher-education admissions but nowhere else. As

10

Justice Scalia noted in his separate opinion in Grutter,

universities seek to promote “cross-racial understanding

and better preparation of students for an increasingly diverse workforce and society.” 539 U.S. at 347 (Scalia, J.,

concurring in part and dissenting in part) (cleaned up).

Nothing about these claimed benefits is unique to collegiate lecture halls—yet this Court has rightly never applied Grutter in other contexts.

Instead, the Grutter majority pointed to Justice Powell’s solo opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978). Grutter relied on Justice Powell’s observation that “academic freedom . . .

‘long has been viewed as a special concern of the First

Amendment.’” 539 U.S. at 324 (quoting Bakke, 438 U.S.

at 312 (opinion of Powell, J.)). Grutter, however, left out

an important part of Justice Powell’s statement: a recognition that this academic freedom is “not a specifically

enumerated constitutional right.” Bakke, 438 U.S. at 312.

The “equal protection of the laws” is. U.S. Const. amend.

XIV. Where the two conflict, there is no question which

must prevail. For example, the right to bring a lawsuit is

generally understood to fall within the First Amendment’s Petition Clause, Borough of Duryea v. Guarnieri,

564 U.S. 379, 387 (2011), but no one would imagine that a

State could racially discriminate among whom it allows

to sue in its courts. Cf. Shelley v. Kraemer, 334 U.S. 1,

12–14 (1948). Discrimination in the name of an extraconstitutional “special concern” like “academic freedom”

can fare no better. Grutter, 539 U.S. at 362–64 (Thomas,

J., dissenting).

Indeed, the very justifications for “diversity” rest on

invidious racial stereotyping. Proponents have admitted

that affirmative-action policies like those in these cases

are an exercise in “‘social engineering.’” Fisher IV, 579

11

U.S. at 398 (Alito, J., dissenting) (quoting Bill Powers,

Op. Ed.: Why Schools Still Need Affirmative Action,

Nat’l L.J., at 22 (Aug. 4, 2014)). In Bakke, Justice Powell

described it somewhat differently: by ensuring that students have different backgrounds, a university promotes

“the robust exchange of ideas.” 438 U.S. at 313. But this

rationalization “promotes the noxious fiction” that a person’s skin color is a proxy for personal experience,

Schuette v. BAMN, 572 U.S. 291, 324 (2014) (Scalia, J.,

concurring), which is fundamentally “at odds with equal

protection mandates,” Miller v. Johnson, 515 U.S. 900,

920 (1995). Outside the higher-education context, the

Court has stated that it cannot “accept as a defense to

racial discrimination the very stereotype the law condemns.” Powers v. Ohio, 499 U.S. 400, 410 (1991).

3. Finally, Grutter represents the only time in this

Court’s history that it has deferred to an actor engaged

in race discrimination regarding whether race discrimination is justified. Ordinarily, this Court has required

the proponent of racial discrimination to offer a “strong

basis in evidence” that such discrimination is strictly necessary. Parents Involved, 551 U.S. at 754–55 (Thomas,

J., concurring) (citing Croson, 488 U.S. at 500). This burden of proof “requires proper findings regarding the extent of the government unit’s past racial discrimination,”

“the scope of any injury,” and “the necessary remedy.”

Id. at 755.

Grutter requires none of these things. It accepts at

face value the admission officer’s refrain that “a critical

mass of underrepresented minority students would

[need to] be reached” in order “to realize the educational

benefits of a diverse student body.” 539 U.S. at 318.

Moreover, by applying a supposed “tradition of giving a

degree of deference to a university’s academic

12

decisions,” it defers to the university’s own conclusion

that its racial policies actually serve its ill-defined goal.

Id. at 328.

Though extraordinary, this level of deference to the

university is the predictable consequence of the imprecision of the “diversity” interest. According to one scholar,

“[d]iversity, the notion that we should embrace and celebrate people’s differences, became fashionable in the

1980s.” Trina Jones, The Diversity Rationale: A Problematic Solution, 1 Stan. J. C.R. & C.L. 171, 172 (2005).

In particular, so-called “diversity initiatives received

greater public acceptance” as “more traditional affirmative action programs” became increasingly “maligned

and viewed as unwanted relics of the past.” Id. at 173.

The term “diversity,” however, “lacks a substantive,

clearly defined meaning in contemporary parlance,” and

“means different things to different people depending

upon when, where, and by whom it is invoked.” Id. at 176.

This absence of a clear goal led directly to the unprecedented level of deference that Grutter provided to university officials—the very actors accused of racial discrimination. Fisher IV, 579 U.S. at 401–02 (Alito, J., dissenting). How does the proponent of racial preferences

in admissions criteria achieve the “educational benefits

that flow from a diverse student body”? By achieving a

“critical mass.” Grutter, 539 U.S. at 329. And what exactly constitutes a “critical mass”? No one can really say,

but University of Michigan officials considered it to be

“meaningful numbers” or “meaningful representation,”

such that the beneficiaries of race preferences do “not

feel isolated.” Id. at 318. That contentless test has been

intensely criticized not just by members of this Court, cf.

Parents Involved, 551 U.S. at 735, but by commentators

on both sides of the affirmative-action debate, e.g., Mark

13

T. Terrell, Bucking Grutter: Why Critical Mass Should

Be Thrown Off the Affirmative-Action Horse, 16 Tex. J.

C.L. & C.R. 233, 251 & n.152 (2011) (discussing criticism

by Brian N. Lizotte, The Diversity Rationale: Unprovable, Uncompelling, 11 Mich. J. Race & L. 625, 650

(2006)); id. at 234 (“[T]he Court’s slapdash analysis of the

empirical evidence shows why critical mass is too illusory

to be a useful doctrinal tool.”).

At bottom, “diversity” as articulated by its proponents is too amorphous to constitute a compelling state

interest that satisfies the Equal Protection Clause—and

if it means merely racial balancing for its own sake, then

it is not even a legitimate one. This Court has stated that

“[t]he higher education dynamic” is not supposed to

“change the narrow tailoring analysis of strict scrutiny

applicable in other contexts.” Fisher II, 570 U.S. at 314.

But even members of the Grutter majority admit that it

applies a “standard of review that is not ‘strict’ in the traditional sense of that word.” Parents Involved, 551 U.S.

at 837 (Breyer, J., dissenting). This paradox has never

been explained because it is inexplicable.

II. Experience Demonstrates That the Grutter

Standard Is Unworkable.

The last nineteen years have shown that Grutter cannot be applied with any sort of consistency—either by

this Court or by universities. Since it was decided, this

Court has had to assess how to apply Grutter’s logic in at

least three major opinions. In one of these cases, which

came before the Court twice, the Court at first seemed

to cut back Grutter (Fisher II) but later applied Grutter

wholesale (Fisher IV). In the other (Parents Involved),

the Court reverted to the traditional notion that the

Equal Protection Clause means what it says: the government must provide all citizens “equal protection” of the

14

laws regardless of race, U.S. Const. amend. XIV, and

“‘state-provided education is no exception,’” Schuette,

572 U.S. at 316 (Scalia, J., concurring) (quoting Grutter,

539 U.S. at 349 (Scalia, J., concurring in part and dissenting in part)). The result is a muddle—one that can be efficiently clarified by overruling Grutter.

A. Texas’s experiences with affirmative action

demonstrate that Grutter is unworkable.

Abigail Fisher brought this Court a chance to clarify

Grutter. The first time she came before the Court, the

Court held the University of Texas to its traditional

equal-protection standards, concluding that the Fifth

Circuit had not held the University of Texas to its burden

to show that the manner in which it considered the race

of applicants was justified. Fisher II, 570 U.S. at 312–13.

But the second time, the Court reversed course: though

it acknowledged that the record was “almost devoid of

information about the [number of] students who secured

admission” based on racial preferences, the Court nonetheless upheld the University’s overt use of race in admissions. Fisher IV, 579 U.S. at 378; see also id. at 434–

35 (Alito, J., dissenting) (criticizing the University’s

dearth of evidence to support its race-conscious practices). Texas’s past experience with race-based admissions practices demonstrates just how foreign this tiegoes-to-the-government approach is to equal-protection

jurisprudence. See id. at 389–90 (Alito, J., dissenting).

Moreover, it demonstrates that Grutter’s acceptance of

race preferences in admissions is self-defeating if its true

goal is, as claimed, to end the need for race-based admissions by 2028. See 539 U.S. at 343.

1. Like many other States, Texas has a troubled history with racial discrimination in higher-education admissions. In the early twentieth century, its flagship

15

university practiced a policy of de jure segregation—a

policy that led it to deny Heman Marion Sweatt, an African American, admission to the University of Texas

School of Law because of the color of his skin. Sweatt,

339 U.S. at 631. Since then, Texas universities have tried

several practices to increase minority admissions—some

race-based, some race-neutral. At present, most state

universities use race-blind admissions practices; the University of Texas is the only university in the State that

still accords benefits based on an applicant’s skin color.

E.g., Fisher IV, 579 U.S at 372–73; Fisher II, 570 U.S. at

304–06; Hopwood, 78 F.3d at 935–38.

For years following Sweatt, the University of Texas

“considered two factors” in examining applications: an

“Academic Index” and the applicant’s race. Fisher II,

570 U.S. at 304. Though that policy was defended on

many of the same interests promoted here, the Fifth Circuit concluded it did not satisfy the Equal Protection

Clause. Hopwood, 78 F.3d at 955. That case, like Sweatt

before it, involved an applicant to the University’s prestigious law school, which maintained a “segregated application evaluation process” and “segregated waiting

lists” designed to help African-American and Hispanic

applicants. Id. at 935–38. The Fifth Circuit held that considering an applicant’s race “for the purpose of achieving

a diverse student body” did not satisfy strict scrutiny. Id.

at 944. The Court’s subsequent decision in Gratz confirmed that Hopwood reached the correct result (albeit

not necessarily on the correct grounds). 539 U.S. at 271–

75.

2. In the eight years following Hopwood, Texas universities did not consider race when reviewing applications for admission. Fisher II, 570 U.S. at 304. The Texas

Legislature also responded by enacting the “Top Ten

16

Percent Law,” which gave Texas high-school students in

the top 10% of their respective classes automatic admission to any state university. Tex. Educ. Code § 51.803.

This provided a “facially race-neutral” solution that benefited students in poorer areas, including minority students who were “often trapped in inferior public

schools.” Fisher IV, 579 U.S. at 394 (Alito, J., dissenting).

When the University of Texas was no longer permitted to consider applicants’ race in admissions, it instead

turned to more worthy criteria, including an applicant’s

“leadership and work experience, awards, extracurricular activities, community service, and other special circumstances.” Fisher II, 570 U.S. at 304. During eight

years of race-neutral admissions, the University saw the

percentage of minority enrollees increase. Id. at 305. African-American and Hispanic enrollees made up 4.1%

and 14.5% (respectively) of the entering class in the year

before Hopwood and 4.5% and 16.9% (respectively) in

the last year of race-neutral admissions. Id. The University boasted in 2003 that it had “effectively compensated

for the loss of affirmative action.” Fisher IV, 579 U.S. at

394–95 (Alito, J., dissenting).

3. Then came Grutter. The University, which had

publicly boasted of achieving greater minority admissions through race-neutral means, immediately declared

an about-face. Id. at 395 & n.1. The University’s President announced the day Grutter was decided that it

would modify its admissions procedures: though the Top

Ten Percent Law had already achieved the same result

as previous race-conscious programs, the University

would once again consider race as a “meaningful factor”

in admissions. Id. at 397. Though proponents of the new

plan would later claim that race was used only as a “factor of a factor of a factor of a factor,” race was the only

17

“holistic factor” that the University put on the cover of

every application. Id.; see id. at 429 (the University was

“gratuitously brandishing the covers of tens of thousands of applications with a bare racial stamp,” “telling

each student he or she is to be defined by race” (cleaned

up)).

4. The cover of Abigail Fisher’s application read

“Caucasian.” Cf. id. at 375 (majority op.). In keeping with

its declared admissions policy of preferring certain races

of applicants to others, the University of Texas discriminated against her. See id. And because racial discrimination violates the Equal Protection Clause, she sued the

University. See id. The district court granted summary

judgment to the University under Grutter, and the Fifth

Circuit affirmed based on Grutter’s “deference to a university’s academic decisions.” Fisher v. Univ. of Tex. at

Austin, 631 F.3d 213, 231 (5th Cir. 2011) (Fisher I). Specifically, that court deferred to the University’s judgment about how much diversity was necessary to promote the ideal educational environment. See id. at 244–

45. And, though it found “UT’s claim . . . less convincing

when viewed against the backdrop of the Top Ten Percent Law,” it likewise deferred to the University’s determination that it could only obtain diversity through racial

discrimination. Id. at 245.

This Court reversed on the grounds that the Fifth

Circuit had not held the University even to the strictscrutiny-lite test minted in Grutter. Fisher II, 570 U.S.

at 313–14. But the Court left it to the Fifth Circuit to decide whether the University had produced enough evidence to show that its use of racial preferences both

served sufficiently specific interests and that its program was narrowly tailored to serve those interests. Id.

at 314.

18

On remand, the Fifth Circuit again held in favor of

the University. Fisher v. Univ. of Tex. at Austin, 758

F.3d 633, 659–60 (5th Cir. 2014) (Fisher III). Judge

Garza dissented on the grounds that the Court was still

taking the University’s self-assessment at face value

when the law clearly required that “reviewing courts

cannot defer to a state actor’s argument that its consideration of race is narrowly tailored to achieve its diversity goals.” Id. at 661 (Garza, J., dissenting).

Judge Garza was right. Between Fisher II and IV,

the University proffered no evidence demonstrating

which students benefitted from its race-conscious plan

and made no attempt to more narrowly define its interest

in a “critical mass” of diversity. Fisher IV, 579 U.S. at

389–90 (Alito, J., dissenting). The majority recognized as

much. Id. at 378 (majority op.) (“The Court thus cannot

know how students admitted solely based on their class

rank differ in their contribution to diversity from students admitted through holistic review.”). And it recognized that “[i]n an ordinary case,” remand would have

been deemed necessary to fill “this evidentiary gap.” Id.

The Court nonetheless upheld the University’s admissions practices because of the length of the litigation, id.

at 379, often faulting Fisher, the victim of racial discrimination, for not showing why it was impermissible for the

University, the state actor engaged in racial discrimination, to racially discriminate, id. at 429–30 (Alito, J., dissenting). As a result, this Court blessed the University’s

use of racial preferences even absent the robust evidence

that a party engaged in racial discrimination is expected

to provide.

5. Today, the University’s admissions practices

stand as a testament to the failure to enforce Grutter’s

admonitions that “race-conscious admissions policies

19

must be limited in time” and that “[e]nshrining a permanent justification for racial preferences would offend

[the] fundamental equal protection principle.” 539 U.S.

at 342–43. And while Grutter expressed the hope that “25

years from now, the use of racial preferences will no

longer be necessary to further the interest approved today,” id. at 343, the zeal with which the University of

Texas has embraced systematic racial discrimination in

admissions illustrates how elite universities will not stop

discriminating based on race without this Court’s intervention.

Since Grutter and Fisher IV, the University of Texas

has pursued a policy of racial preferences for their own

sake. Its President extolled the University’s decision to

racially discriminate the day Grutter was decided.

Fisher IV, 579 U.S. at 395 (Alito, J., dissenting). Thirteen

years later, just after Fisher IV, its President showed no

greater reluctance, announcing that “race continues to

matter in American life,” and that this Court “affirm[ed]

the [U]niversity’s right to continue using race and ethnicity” in its admissions process. 4 Far from desiring to

end racial preferences, the University says that this policy is “central” to its self-defined “constitutional mandate

to serve the state of Texas.”5

Since Fisher IV, most African-American and Hispanic students admitted to the University of Texas are

Press Release, UT News, University of Texas at Austin President Responds to Supreme Court Ruling (June 23, 2016), https://tinyurl.com/9jkux5u5.

4

Press Release, UT News, Statement on Admissions Policies

(July 3, 2018), https://tinyurl.com/3p296ck8; see also Claire Parker,

UT-Austin has no plans to drop affirmative action policy, despite

new Trump administration guidelines, The Texas Tribune (July 3,

2018), https://tinyurl.com/mwub9nxw.

5

20

admitted through the Top Ten Percent Law.6 And even

with racial preferences, an average of 4.5% of each enrolling class has been African-American in the interim

years—the exact same proportion of African-American

students that enrolled in the University during the fall of

2004, the last admissions cycle governed by a race-neutral scheme.7 Increased enrollment of Asian-American

and Hispanic students at the University is traceable to

the passage of the Top Ten Percent Law. 8 Almost two

decades of racial discrimination have garnered the University of Texas nothing, while disadvantaging countless

young adults based on the color of their skin.

This stands in sharp contrast to the law school in

Grutter, which at least professed to want nothing more

“than to find a race-neutral admissions formula,” 539

U.S. at 343. And it stands in sharp contrast to the experience of other universities that have moved away from

race preferences in admissions, such as the University of

California at Berkeley Law School (Boalt Hall), which is

forbidden by law from considering race in admissions, id.

at 367 (Thomas, J., dissenting), or Texas A&M

University of Texas at Austin, Report on the Implementation

of SB 175, 81st Legislature, for the period ending Fall 2020, at 33,

https://tinyurl.com/d8jve84k; University of Texas at Austin, Report

on the Implementation of SB 175, 81st Legislature, for the period

ending Fall 2018, at 33, https://tinyurl.com/yynzcf95.

6

Compare University of Texas Office of Institutional Reporting,

Research, and Information Systems, 2020–21 Statistical Handbook

24, https://tinyurl.com/622shuuv, with Fisher IV, 579 U.S. at 395

(Alito, J., dissenting) (citing the 2004 admissions statistics under the

pre-Grutter race-neutral regime).

7

See, e.g., University of Texas at Austin, Report on the Implementation of SB 175, 81st Legislature, for the period ending Fall

2020, at 33, https://tinyurl.com/d8jve84k.

8

21

University, which “sparked outrage” when, notwithstanding Grutter, it maintained race-blind admissions

policies. Matthew Watkins & Neena Satija, At A&M, Diversity Increases Without Affirmative Action, The

Texas

Tribune

(June

19,

2016),

https://tinyurl.com/58nrzf3w. But, twelve years later, its enrollment of African-American and Hispanic students had increased by 114%, far more than the increase seen by the

University of Texas during the same period. Id.

The ongoing experience of the University of Texas

compared to its peers gives away the game. As Texas

A&M’s example shows, universities do not need to consider race to promote minority admissions, which can

rise without racial discrimination. See Fisher II, 570 U.S.

at 305. But that is not enough for some. Instead, elite

American universities consider race because they want

to. See Grutter, 539 U.S. at 360 (Thomas, J., dissenting).

And they have given no indication that they intend to

stop doing so when Grutter’s twenty-five-year clock

runs—or ever. This Court should end its failed experiment in permitting universities to racially discriminate.

B. The experience of petitioner’s members

further

demonstrates

the

theoretical

problems behind Grutter.

The record here similarly reflects that Harvard and

UNC consider race in their application processes first

and foremost because they want to racially discriminate.

As a state university, UNC must comply with the strictures of the Equal Protection Clause. Sweatt, 339 U.S. at

635–36. Harvard must as well: although private institutions like Harvard are not directly subject to that constitutional constraint, The Civil Rights Cases, 109 U.S. 3,

11–12 (1883), as long as Harvard accepts federal funds,

it is subject to the same standard, Gratz, 539 U.S. at 276

22

n.23. Each university, then, has a “continuing obligation

to satisfy the burden of strict scrutiny” and to reassess

the legality and “efficacy” of its race-conscious admissions scheme. Fisher IV, 579 U.S. at 379. Yet both institutions racially discriminate in order to maintain their

notions of the ideal racial composition of their respective

student bodies. The record reflects that Harvard and

UNC fail to satisfy strict scrutiny in defense of their discriminatory policies in at least two important ways.

First, Harvard and UNC have violated Grutter’s fundamental premise that reliance on “diversity” cannot be

a code word “to assure some specified percentage of a

particular group merely because of its race.” Grutter,

539 U.S. at 308. This Court “ha[s] many times over reaffirmed that ‘[r]acial balance is not to be achieved for its

own sake.’” Parents Involved, 551 U.S. at 729–30 (citing,

inter alia, Freeman v. Pitts, 504 U.S. 467, 494 (1992)).

Grutter endorsed the so-called “Harvard plan” of admissions because it assumed that Harvard’s system was

“flexible enough to consider all pertinent elements of diversity,” including socioeconomic status, family circumstances, and other personal experiences. Grutter, 539

U.S. at 309.

Harvard’s application process might consider these

other factors, but this case reflects that Harvard will implement race-neutral admissions policies only if they

would not result in “any decline” in African-American or

Hispanic representation from current levels. Harv.Pet.

App.77 n.32; id. at 209. As petitioner has demonstrated,

this absolute requirement of certain minimum minority

enrollment levels is in constitutional substance a quota

system. See Pet’r Br. 76 (citing Harv.JA1770). The result

is that all racial groups stay within narrow bands of

23

admissions rates to yield Harvard’s preferred racial mix.

Id.

UNC engineers a similar outcome. It regards African

Americans, Hispanic Americans, and Native Americans

as “underrepresented minorities” and awards those applicants racial preferences in its admissions process.

UNC.Pet.App.15 & n.7, 37; UNC.JA690. But Asian

Americans are not considered underrepresented and do

not receive a preference because the percentage of Asian

Americans in UNC’s student body (12%) currently exceeds their percentage in North Carolina’s state population (2.6%). UNC.Pet.App.15 & n.7, 21. That benchmark

controls admissions preferences—and even then, it fails

to account for the demographics of the population outside of North Carolina, from which UNC draws 18% of

its students. Id. at 23 & n.8.

The way that Harvard and UNC have structured

their racial preferences reflects a form of stereotyping

that is inconsistent with both their own rationale and the

theory behind Grutter. The term “Asian American” itself

reflects a stereotype that lumps together as one group

“individuals of Chinese, Japanese, Korean, Vietnamese,

Cambodian, Hmong, Indian and other backgrounds comprising roughly 60% of the world’s population.” Fisher

IV, 579 U.S. at 414 (Alito, J., dissenting) (citation and

quotation marks omitted). Many individuals in these

groups have suffered considerable racial discrimination

and economic hardship.9

See Korematsu, 323 U.S. at 216 (allowing the United States to

intern Japanese Americans during World War II); Hua Hsu, The

Muddled History of Anti-Asian Violence, The New Yorker (Feb.

28, 2021), https://tinyurl.com/ra9zamns (discussing increased incidents of anti-Asian violence as the result of the COVID-19 pandemic).

9

24

Yet Harvard and UNC have designed their systems

to benefit other minority groups at Asian Americans’ expense. For example, petitioner cites evidence that an

Asian-American applicant in the top decile of Harvard’s

academic index is admitted less often (12.7%) than an African-American applicant in the fourth-lowest decile

(12.8%). Pet’r Br. 24. Similarly, petitioner cites evidence

that an out-of-state Asian American in the fourth-highest

decile of UNC’s academic index has only a 6.51% chance

of admission, whereas an African-American applicant in

that same decile has a better chance of admission

(57.74%) than an Asian American in the top decile

(52.89%). Pet’r Br. 43.10

Second, the record demonstrates that Harvard’s and

UNC’s systems are not narrowly tailored to ensure that

“race-conscious admissions programs have a termination

point.” Grutter, 539 U.S. at 342. The lower courts concluded that Harvard and UNC had satisfied this requirement because they have conducted periodic reviews and

determined that race-neutral means do not ensure their

diversity goals. Harv.Pet.App.46–47, 73–79; UNC.Pet.

App.176–83. But both universities have defined their “diversity goals” by reference to narrow bands of acceptable racial compositions in their student populations. E.g.,

Pet’r Br. 21–23 (describing Harvard’s careful monitoring

of the racial makeup of admissions and showing that the

share of African Americans, Hispanics, and Asian Americans in each class remained steady for a decade);

UNC.Pet.App.134 n.43, 139 (rejecting race-neutral

Harvard and UNC are not the only universities to help African Americans and Hispanic Americans at the expense of Asian

Americans: the University of Texas’s system of racial preferences

has a similar impact. Fisher IV, 579 U.S. at 410–12 (Alito, J., dissenting).

10

25

alternatives to UNC’s current policies that would cause

admissions of underrepresented minorities to decline

from 16.5% to 16.0% or admissions of Native American

students to drop from 1.8% to 0.5%). In other words,

these universities’ interest in maintaining a specific racial balance cannot be satisfied by anything but rigorous

racial balancing. That rationale may be a clever workaround, but it is not narrow tailoring, let alone an approach designed to end racial discrimination in the future.

More fundamentally, each of these periodic reviews

assumed that the universities should not be required to

change other aspects of their admissions policies. See

Harv.Pet.App.73–79; UNC.Pet.App.113–44. This permissive view of narrow tailoring is fundamentally inconsistent with the view that racial classifications are a “last

resort.” Croson, 488 U.S. at 519 (Kennedy, J., concurring).

For example, petitioner offered expert evidence that

eliminating a preference for legacy admissions at Harvard would increase diversity. Pet’r Br. 81. Yet Harvard

insists that it cannot do so because it would “adversely

affect Harvard’s ability to attract top quality faculty and

staff and to achieve desired benefits from relationships

with its alumni.” Harv.Pet.App.76. But the potential to

upset certain members of the community has consistently (and correctly) been rejected as a compelling interest throughout this Court’s jurisprudence. E.g., Griffin

v. Cty. Sch. Bd. of Prince Edward Cty., 377 U.S. 218

(1964).

Similarly, the district court rejected a race-neutral

alternative for UNC modeled on Texas’s Top Ten Percent Law that would have maintained the overall percentage of in-state underrepresented minorities and

26

increased the share of in-state African Americans in

UNC’s class. UNC.Pet.App.139–40. The court reasoned

that under this model average SAT scores would drop 31

points and GPAs would “marginally” decline. Id. at 140.

But that is not remotely the sort of “dramatic sacrifice”

of academic quality that the Court has said renders a

race-neutral alternative unworkable. Grutter, 539 U.S. at

340; see also id. at 355–56 (Thomas, J., dissenting) (explaining that the true interest upheld in Grutter “is not

simply ‘diversity,’” but rather “offering a marginally superior education while maintaining an elite institution”

that is racially diverse).

Put another way, Harvard and UNC are at least obligated to turn to racial discrimination only as a last resort. Harvard and UNC may maintain admissions policies that might adversely affect certain minority

groups—e.g., permitting legacy admissions or rigidly adhering to specific academic metrics. But, outside Grutter,

Harvard and UNC could not avail themselves of the last

resort of racial discrimination without first changing

these policies, too. Elite universities’ unwillingness to

adapt other admissions policies to reduce reliance on

race further underscores that these institutions turn to

racial discrimination as a first, rather than last, resort,

and that Grutter cannot be salvaged.

III. This Court Has Undermined

Subsequent Case Law.

Grutter

in

In addition to proving unworkable, Grutter cannot be

squared with this Court’s subsequent decision in Parents

Involved, 551 U.S. 701. That case involved whether

“race-based assignments were permissible at the elementary and secondary level” following Grutter. Id. at

724. Observing that “[c]ontext matters in applying strict

scrutiny,” the Court concluded that they were not, thus

27

limiting Grutter to its post-secondary-education context.

Id. at 724–25. Outside that context, the Court explained,

“[r]acial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by

relabeling it ‘racial diversity.’” Id. at 732.

Though Grutter did say it depended on the highereducation context, the distinction makes no sense. Grutter is based on a State’s supposedly compelling interest

in promoting the educational benefits of diversity, which

“prepar[es] students for work and citizenship” in a diverse society. 539 U.S. at 331. But “essentially the same

lesson [is] taught to (or rather learned by, for it cannot

be ‘taught’ in the usual sense) people three feet shorter

and 20 years younger than the full-grown adults” at issue

in Grutter. Id. at 347 (Scalia, J., dissenting). There is no

doctrinal reason why a State has a compelling interest in

preparing eighteen-year-olds privileged enough to go to

universities for work but not fourteen-year-olds. Yet that

is what this Court’s cases claim to do.

Cabining Grutter to the university context thus only

highlights its flimsy rationale. The Court should reverse

the lower courts’ decisions and hold institutions of higher

education to the same requirements of racial neutrality

as other institutions.

IV. Purported Reliance Interests Are No Basis To

Retain Grutter.

Finally, university admissions is not a circumstance

where correcting an anomaly in this Court’s equal-protection jurisprudence would “unduly upset reliance interests.” Ramos v. Louisiana, 140 S. Ct. 1390, 1415

(2020) (Kavanaugh, J., concurring in part). Even in the

face of significant reliance, the Court is least reticent to

overrule precedent when, as here, the precedent interpreted the Constitution. Id. at 1405 (majority op.); see

28

also Knick v. Township of Scott, 139 S. Ct. 2162, 2177

(2019).

Grutter was written to avoid engendering significant

reliance concerns. It stated that “deviation from the

norm of equal treatment of all racial and ethnic groups is

a temporary matter, a measure taken in service of the

goal of equality itself.” 539 U.S. at 342. Noting that it

“ha[d] been 25 years since Justice Powell first approved

the use of race to further an interest in student body diversity,” it anticipated that in an additional 25 years, “the

use of racial preferences will no longer be necessary.” Id.

at 343. Eighteen years have lapsed since Grutter and

Gratz—enough time for the children of the plaintiffs denied admission to the University of Michigan and its law

school to apply to those schools. Anyone who assumed

that Grutter would operate indefinitely did so at his own

peril.

Nor would that reliance be legitimate even without

Grutter’s expiration date. Any governmental preference

based on race is “odious to a free people,” Cayetano, 528

U.S. at 517, and betrays the very foundations of our Constitution’s guarantee of equal protection, Miller, 515

U.S. at 911. And the experiences of prominent universities like Berkeley and Texas A&M demonstrate that race

preferences are not necessary. The Court should not

wait for the court of history to overrule Grutter.

29

CONC LU SION

The Court should overrule Grutter v. Bollinger, 539

U.S. 306 (2003), and reverse the court of appeals.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

MAY 2022

JUDD E. STONE II

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

RANCE CRAFT

Assistant Solicitor General