Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College
Supreme Court briefMay 9, 2022
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Nos. 20-1199 & 21-707
In the Supreme Court of the United States
_________
STUDENTS FOR FAIR ADMISSIONS, INC.,
Petitioner,
v.
PRESIDENT AND FELLOWS OF HARVARD COLLEGE,
Respondent.
________
STUDENTS FOR FAIR ADMISSIONS, INC.,
Petitioner,
v.
UNIVERSITY OF NORTH CAROLINA ET AL.,
Respondents.
_________
On Writs of Certiorari to the United States Courts of
Appeals for the First and Fourth Circuits
_________
BRIEF OF HAMILTON LINCOLN LAW
INSTITUTE AND ILYA SHAPIRO AS
AMICI CURIAE IN SUPPORT OF PETITIONER
_________
ILYA SHAPIRO
600 New Jersey Ave., N.W.
Washington, DC 20001
(202) 662-9861
ilya.shapiro@gmail.com
THEODORE H. FRANK
Counsel of Record
ANNA ST. JOHN
HAMILTON LINCOLN LAW
INSTITUTE
1629 K Street NW, Suite 300
Washington, DC 20006
(703) 203-3848
ted.frank@hlli.org
TABLE OF CONTENTS
Table of Contents .................................................................. i
Table of Authorities ............................................................ iii
Statement of Interest........................................................... 1
Summary of Argument ........................................................ 2
Argument .............................................................................. 3
I.
Grutter is a grudging exception to the welldefined rule that racial classifications are
prohibited in all but the most narrowly
tailored instances......................................................... 3
II.
Despite Grutter's narrow holding, raceconscious policies spread, infecting areas
the Court has held to be off-limits. ............................ 5
A. Universities discriminate on the basis
of race in allocating post-admission
honors. ................................................................... 6
B. K-12 school systems re-incorporate
race into school assignments. ............................. 8
C. Private businesses and public
employers adopt “diversity” as
justification for racial discrimination in
hiring and contracting. ...................................... 10
D. Courts discriminate on the basis of
race in appointing class counsel. ...................... 13
ii
III. Race-conscious decisions achieve only
superficial diversity, failing to realize
either the educational benefits approved
by Grutter or the broader goals
championed by advocates of affirmative
action. .......................................................................... 15
Conclusion ........................................................................... 18
iii
TABLE OF AUTHORITIES
CASES
Page(s)
Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995) ..........................................
2
In re Amendment to Rule Regulating the
Fla. Bar 6-10,
315 So. 3d 637 (Fla. 2021) ...............................
12
Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of the Int’l Union of Operating Eng’rs, Local 15, 15A,
15C & 15D v. Tightseal Constr., Inc.,
2018 U.S. Dist. LEXIS 138041, 2018 WL
3910827 (S.D.N.Y. Aug. 14, 2018) .................
11
In re Blackbaud, Inc., Customer Data
Breach Litig.,
3:20-mn-02972-JMC (D.S.C.) ........................ 14-15
Bredesen v. Tenn. Judicial Selection
Comm’n,
214 S.W.3d 419 (Tenn. 2007) ...........................
11
Brown v. Bd. of Educ.,
347 U.S. 483 (1954) .........................................
10
Brown v. J. Kaz., Inc.,
581 F.3d 175 (3rd Cir. 2009) ..........................
11
Christa McAuliffe Intermediate Sch. PTO,
Inc. v. DeBlasio,
364 F. Supp. 3d 253 (S.D.N.Y. 2019)..............
10
iv
TABLE OF AUTHORITIES—Continued
Page(s)
City of Providence v. AbbVie Inc.,
2020 U.S. Dist. LEXIS 189472, 2020 WL
6049139 (S.D.N.Y. Oct. 13, 2020) .................. 13-15
Coalition for TJ v. Fairfax County Sch.
Board,
2022 WL 579809 (E.D. Va. Feb. 25, 2022),
stayed 2022 WL 986994 (4th Cir. Mar. 31,
2022), appeal pending No. 22-1280 (4th
Cir.) ...................................................................
9
In re Dynex Capital, Inc. Sec. Litig.,
2011 U.S. Dist. LEXIS 22484, 2011 WL
781215 (S.D.N.Y. Mar. 7, 2011) .....................
14
Faculty, Alumni, & Students Opposed to Racial Preferences v. New York Univ.,
11 F.4th 68 (2d Cir. 2021)................................
8
In re FICO Antitrust Litig.,
2021 WL 4478042, 2021 U.S. Dist. LEXIS
189371 (N.D. Ill. Sept. 30, 2021) ..................
14
Grutter v. Bollinger,
539 U.S. 306 (2003) ...................................... passim
In re J.P. Morgan Chase Cash Balance
Litig.,
242 F.R.D. 265 (S.D.N.Y. 2007) .....................
14
Martin v. Blessing,
571 U.S. 1040 (2013) .......................................
13
v
TABLE OF AUTHORITIES—Continued
Page(s)
Marsh v. Bd. of Ed.,
581 F. Supp. 614 (E.D. Mich. 1984) .............. 10-11
Meland v. Weber,
2021 WL 6118651, 2021 U.S. Dist. LEXIS
246227 (E.D. Cal. Dec. 27, 2021) ....................
12
In re Oil Spill by Oil Rig Deepwater Horizon,
295 F.R.D. 112 (E.D. La. 2013) ..................... 13-14
Parents Involved in Cmty. Sch. v. Seattle
Sch. Dist. No. 1,
551 U.S. 701 (2007) ....................................... 4, 10, 19
Petit v. City of Chicago,
352 F.3d 1111 (7th Cir. 2003) ..........................
11
Pub. Employees’ Ret. Sys. of Miss. v. Goldman Sachs Group, Inc.,
280 F.R.D. 130 (S.D.N.Y. 2012)......................
14
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ......................................
2
In re Robinhood Outage Litig.,
No. 20-cv-01626-JD (N.D. Cal. July 14,
2020) .................................................................
13
Schurr v. Resorts Int’l Hotel, Inc.,
196 F.3d 486 (3rd Cir. 1999) ..........................
10
vi
TABLE OF AUTHORITIES—Continued
Page(s)
SEC v. Adams,
2018 U.S. Dist. LEXIS 93837, 2018 WL
2465763 (S.D. Miss. June 1, 2018) .................
13
U.S. Steelworkers of Am. v. Weber,
443 U.S. 193 (1979) ......................................... 10-11
Vill. Green at Sayville, LLC v. Town of Islip,
2019 U.S. Dist. LEXIS 167177, 2019 WL
4737054 (E.D.N.Y. Sept. 27, 2019) ................
11
Wygant v. Jackson Bd. of Educ.,
476 U.S. 267 (1986) .........................................
6
RULES AND STATUTES
42 U.S.C. § 1981 ................................................... 10, 11
Fed. R. Civ. Proc. 23 ...........................................
14
OTHER AUTHORITIES
Hans Bader, Is the Cure for Racism Really
More Racism?, Wall St. J. (Oct. 12, 2020) ....
7
Amanda Bronstad, MDL Judge Taps “Most
Diverse Leadership Team Ever” in Data
Breach Class Action, Nat. L. J. (Mar. 3,
2021) .................................................................
14
Isabella Brown, Black Affinity AUx2 Is
Praised as a Safe Space for Black Students, The Eagle (Aug. 13, 2021) ...................
16
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Ruiqi Chen, Coke GC Tired of “Good Intentions,” Wants Firm Diversity Now,
Bloomberg Law (Jan. 28, 2021) .....................
12
Editors, Canceled: A Running List of the
People, Places, and Things That Have
Been Toppled as the Country Reckons with
Racism, Los Angeles Magazine (Jun. 11,
2020) .................................................................
18
Gallup’s most admired man and woman poll,
Wikipedia (May 8, 2022) ................................
17
Lani Guinier, Our Preference for the Privileged, Bost. Globe (July 9, 2004) ....................
16
John Hollis, President Washington announces membership to the Anti-Racism
and Inclusive Excellence Task Force,
George Mason University (Sep. 3, 2020).......
7
Ibram X. Kendi, How to Be an Antiracist
(2019) .................................................................
7
Curt Levey, The Legal Implications of Complying with Race and Gender-Based Client
Preferences, 8 Federalist Soc’y Rev. 14
(2007) ................................................................
11
David K. Li, San Francisco School Board
Eliminates Academic Admission Standards for Renowned School, NBC News
(Feb. 10, 2021) .................................................
8
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Daniel N. Lipson, Where’s the Justice? Affirmative Action’s Severed Civil Rights
Roots in the Age of Diversity, 6 Perspectives on Pol. 691 (Dec. 2008) ...........................
16
Glenn Loury, Unspeakable Truths about Racial Inequality in America, Quillette (Feb.
10, 2021) ...........................................................
18
McDonald’s Overhauling Workplace Culture
to Meet Diversity Goals, CBS News (Feb.
18, 2021) ...........................................................
12
Ian Millhiser, Federal Judge Slams Justice
Alito’s Lack Of ‘Understanding Or Interest’ In Race Or Gender Equality,
ThinkProgress (Dec. 9, 2013) ........................
13
Hannah Natanson, Fairfax School Board
Switches to ‘Holistic Review’ Admissions
System for Thomas Jefferson High School,
Wash. Post (Dec. 17, 2020) .............................
9
Alex Nester, Fairfax County Schools Came
Under Fire for Effort to Boost Black and
Hispanic Enrollment, Wash. Free Beacon
(Jan. 14, 2022) ..................................................
9
Clarence Page, As Black Immigrants Collect
Degrees, Is Affirmative Action Losing Direction?, Balt. Sun (Mar. 20, 2007) ................
16
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Sara Rimer & Karen W. Arenson, Top Colleges Take More Blacks, but Which Ones?,
N.Y. Times (June 24, 2004) .............................
15
Noah Rothman, Searching for the ‘Anti’ in
‘Antiracism,’ Commentary (Dec. 21, 2020) .
7
Christopher F. Rufo, The Price of Dissent,
City Journal (Jan. 5, 2022) ..............................
17
Ilya Shapiro, Supreme Disorder: Judicial
Nominations and the Politics of America’s
Highest Court (2021) .......................................
1
Aaron Sibarium, Yale Law Students Said a
Top Journal was Racist. Admissions Data
Suggest Otherwise, The Washington Free
Beacon (Feb. 21, 2021) ...................................
7
Darwinder S. Sidhu, Racial Mirroring, 17 U.
Pa. J. Const. L. 1335 (2015) ............................
11
Sam Skolnik, Novartis Demands Outside
Counsel Make Tough Diversity Guarantees, Bloomberg Law (Feb. 12, 2021) ...........
12
x
TABLE OF AUTHORITIES—Continued
Page(s)
Meg Woolhouse, Boston Public Schools Suspends Test for Advanced Learning Classes; Concerns About Program’s Racial
Inequities Linger, GBH News (Feb. 26,
2021) .................................................................
8
Alex Zimmerman & Monica Disare, De
Blasio’s Specialized School Proposal
Spurs Outrage in Asian Communities,
Chalkbeat New York (Jun. 5, 2018) ..............
8-9
1
STATEMENT OF INTEREST
Hamilton Lincoln Law Institute (“HLLI”) is a publicinterest law firm dedicated to protecting free markets,
free speech, limited government, and separation of powers, and against regulatory abuse and rent-seeking.1 Its
subunit, the Center for Class Action Fairness, represents
class members pro bono in class actions where class counsel employs unfair procedures to benefit themselves at the
expense of the class. HLLI has emerged as America’s
leading defender of consumers and shareholders against
abusive class-action settlements, winning hundreds of millions of dollars for these stakeholders, and setting precedents that safeguard consumers, investors, courts, and the
public.
Ilya Shapiro is the former vice president for constitutional studies at the Cato Institute, where he filed more
than 500 briefs in the Supreme Court, including in leading
civil rights cases. Shapiro is the author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court and editor of eleven volumes of
the Cato Supreme Court Review (2008-18). He is the
chairman of the board of advisers of the Mississippi Justice Institute, a member of the board of fellows of the Jewish Policy Center, and a member of the Virginia Advisory
Committee to the U.S. Commission on Civil Rights. He
Pursuant to Rule 37.6, Amici Curiae affirm that no counsel for a
party authored this brief in any part, and that no person or entity
other than Amici or their counsel financially contributed to preparing
or submitting it. All parties have filed blanket consent for amicus
briefs.
1
2
regularly provides commentary on civil rights and constitutional issues in a variety of publications and media.
In their litigation practice HLLI and Shapiro have directly confronted, and sought this Court’s intervention to
halt, the pervasive expansion of race-conscious decisionmaking into areas outside university admissions by those
insisting on the propriety of that action using the language
of Grutter v. Bollinger, 539 U.S. 306 (2003).
SUMMARY OF ARGUMENT
Amici share petitioner’s conclusion that Grutter has
generated no legitimate reliance interests. It could not,
because when precedent “undermines the fundamental
principle of equal protection as a personal right,” it is “the
principle,” not the decision, which “must prevail.”
Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 235
(1995). And because Grutter itself required that the “raceconscious admissions policies” that it authorized “must be
limited in time” and should face “sunset provisions” forcing regular “reviews to determine whether racial preferences are still necessary,” all with the “expect[ation] that
25 years from now, the use of racial preferences will no
longer be necessary.” Grutter, 539 U.S. at 342, 343.
What this Court authorized in Grutter as a temporary,
grudging exception to America’s ideals and generally applicable law of Equal Protection has “caused significant …
real-world consequences.” Ramos v. Louisiana, 140 S. Ct.
1390, 1415 (2020) (Kavanaugh, J., concurring in part). In
many ways its effect has metastasized into a threat blooming across the legal landscape, the economy, and society
as a whole. Despite Grutter’s own language, the case has
signaled beyond the university-admission context that it
may be legally permissible for government actors to discriminate on the basis of race.
3
Even in the university setting, Grutter has not achieved
the educational or other benefits its proponents laud. Instead of creating academic communities with a broad mix
of perspectives and life experiences, or even making
amends to the descendants of slaves—which the Court has
never accepted as a constitutional justification for racial
preferences—race-based admissions have served to further entrench wealth and privilege, while corporate diversity efforts have led to a culture of groupthink.
The Court should take this opportunity to excise that
threat and begin to rehabilitate American ideals by overruling Grutter. It is time to recognize that this line of precedent is an aberration from equal-protection principles.
ARGUMENT
I.
Grutter is a grudging exception to the well-defined
rule that racial classifications are prohibited in all
but the most narrowly tailored instances.
While Grutter “endorse[d the] view that student body
diversity is a compelling state interest that can justify the
use of race in university admissions,” 539 U.S. at 325, Justice O’Connor’s opinion (and the Court’s decisions since
Grutter) cabined that holding.
Grutter pays lip-service to the general rules that courts
apply to all racial policy-making, reiterating that (a) “the
Fourteenth Amendment protects persons, not groups,”
leaving “all governmental action based on race—a group
classification long recognized as in most circumstances irrelevant and therefore prohibited—…subject to detailed
judicial inquiry to ensure that the personal right to equal
protection of the laws has not been infringed”; and
(b) “such classifications are constitutional only if they are
4
narrowly tailored to further compelling governmental interests.” Grutter, 539 U.S. at 326 (cleaned up).
Even so, Grutter went on to approve grudgingly the
University of Michigan Law School’s racially discriminatory admissions program, because of a host of specific requirements that it concluded the school to have satisfied.
First, Grutter approved the program not as serving an interest in diversity-for-its-own-sake, but only as advancing
an interest in obtaining for students the alleged educational benefits of maintaining a racially diverse student
body. Grutter, 539 U.S. at 328; see Parents Involved in
Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 729
(2007) (reiterating that “racial balancing” is not a compelling state interest). It did so only on finding that Michigan’s program was narrowly tailored to advance that end,
specifically noting (and requiring) that the policy: (a)
sought an amorphous critical mass, rather than a specific
number of students of particular races, Grutter, 539 U.S.
at 335–36; (b) demonstrably followed from the “serious,
good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks,”
id. at 339; (c) did “not unduly harm members of any racial
group,” so that no “rejected applicant will … have been
foreclosed from all consideration … simply because he was
not the right color or had the wrong surname,” id. at 341
(cleaned up); and (d) “be limited in time” with “periodic
reviews to determine whether racial preferences are still
necessary to achieve” the purported educational benefits
of racial diversity, id. at 342.
Because of these limits, the Court could persuade itself
that it was doing no harm to the larger canvas of American
constitutional law. Acting on what it styled the “long recognized … important purpose of public education,” Grutter purported to grant “universities” a “special niche in
5
our constitutional tradition,” id. at 329, rather than establishing that any other institution could similarly discriminate on the basis of race whenever its insiders decided it
would aid their institutional purpose.
II. Despite Grutter's narrow holding, race-conscious
policies spread, infecting areas the Court has held
to be off-limits.
But however carefully the Court sought to cabin off its
precedent in Grutter, the “diversity” rationale for racial
discrimination has metstasized. Institutional actors have
taken Grutter as a warrant to bring back racial discrimination in field after field where federal law and this
Court’s precedents have long made clear that it is forbidden. The exception is swallowing the rule, reaching back
to defeat even the guaranties of our oldest civil-rights protections.
Racially discriminatory decision-making has permeated the internal decisions of America’s universities
(where their choices are unauthorized by Grutter’s narrow
allowance for admissions departments). It has returned to
the assignment of students to K-12 public schools. Private
companies have announced that they will refuse to contract with parties unless those parties discriminate on the
basis of race in their hiring, firing, promotional, and assignment decisions. Certain courts have permitted governmental employers to apply diversity-based “racial
mirroring” goals to race-based promotional decisions. California has wielded the “diversity” rationale as a justification for imposing a gender quota on the boards of publiclytraded corporations. Even federal courts have adopted a
“diversity” justification for discrimination in appointing
class counsel.
6
Regardless of any particular actor’s motives, Grutter’s
“diversity” rationale has allowed racialist thinking to permeate our legal landscape.
A. Universities discriminate on the basis of
race in allocating post-admission honors.
Grutter found that universities’ interest in providing
the putative educational benefits of a diverse student body
was enough to allow Michigan’s race-conscious admissions
program to satisfy strict scrutiny. Although it did not otherwise authorize universities to discriminate on the basis
of race, administrators do not appear to have noticed the
difference. Widespread accounts suggest ongoing violations of Title VI—and, for public schools, Fourteenth
Amendment—violations by engaging in race-conscious
decisions untethered to admissions standards and the approved goal of achieving diverse student bodies.
For example, last year George Mason University announced a racially discriminatory hiring program geared
toward obtaining a faculty and staff reflective of the demographics of its student population. The public university advanced this program despite this Court’s
admonition that schools may not discriminate in hiring to
produce faculty-student demographic match.2 “With the
issues of diversity, inclusion, equity and social justice at
the forefront of national events,” the school proposed
Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 275 (1986) (plurality opinion) (rejecting justification of firing-decision on basis of race,
because it “allows the [school] to engage in discriminatory hiring and
layoff practices long past the point required by any legitimate remedial purpose. Indeed, by tying the required percentage of minority
teachers to the percentage of minority students, it requires just the
sort of year-to-year calibration the Court stated was unnecessary.”).
2
7
race-based hiring as part of a campaign “to become a national exemplar of anti-racism and inclusive excellence.” 3
It did so with no apparent consideration of the constitutional question raised or this Court’s direct precedent.
Also last year, the Yale Law Journal (part of federalfunding recipient Yale University, with no separate legal
existence), revealed that its membership selection process—which uses “diversity statement[s]”—results in the
election of students of different races at vastly disproportionate rates. Aaron Sibarium, Yale Law Students Said a
Top Journal was Racist. Admissions Data Suggest Otherwise, Washington Free Beacon (Feb. 21, 2021). The disclosed data suggests that journal membership is
intentionally discriminating on the basis of race in choosing whom to admit to its board, in likely violation of Title VI. (Despite benefiting from an extraordinarily
disproportionate selection process, activists at the school
demand even more in the way of racial preferences. Id.)
John Hollis, President Washington announces membership to
the Anti-Racism and Inclusive Excellence Task Force, George Mason University (Sep. 3, 2020), https://www2.gmu.edu/news/202009/president-washington-announces-membership-anti-racism-andinclusive-excellence-task (last visited May 8, 2022). One should note
that “anti-racism” is an Orwellian term as propounded by leading theorist Ibram X. Kendi, who baldly states in his best-selling book How
to Be an Antiracist (2019): “‘The only remedy to racist discrimination
is antiracist discrimination. The only remedy to past discrimination is
present discrimination…. The only remedy to present discrimination
is future discrimination.’” Noah Rothman, Searching for the ‘Anti’ in
‘Antiracism,’ Commentary (Dec. 21, 2020). “The ‘discrimination’ critical race theorists want to ‘remedy,’ through still more discrimination,
is any failure to meet a racial quota. As Mr. Kendi puts it, ‘When I see
racial disparities, I see racism.’” Hans Bader, Is the Cure for Racism
Really More Racism?, Wall St. J. (Oct. 12, 2020).
3
8
Indeed, Yale Law Journal’s admissions about the racial
disparities in its selection rates parallels similar allegations in recent litigation challenging the legality of alleged
racial criteria for membership on a law journal at New
York University. Faculty, Alumni, & Students Opposed
to Racial Preferences v. New York Univ., 11 F.4th 68 (2d
Cir. 2021).
B. K-12 school systems re-incorporate race
into school assignments.
Outside the ambit of Grutter’s “special niche” for universities, a spate of public-school systems have recently
altered their policies for placement of students, because of
concerns over the racial diversity of the students placed in
particular schools. In Boston,4 San Francisco,5 and New
York,6 public-school administrators concerned by the
Meg Woolhouse, Boston Public Schools Suspends Test for Advanced Learning Classes; Concerns About Program’s Racial Inequities
Linger,
GBH
News
(Feb.
26,
2021),
https://www.wgbh.org/news/education/2021/02/26/citing-racial-inequities-boston-public-schools-suspend-advanced-learning-classes (last
visited May 8, 2022) (quoting superintendent as explaining move as
part of “work we have to do in the district to be antiracist”).
4
David K. Li, San Francisco School Board Eliminates Academic
Admission Standards for Renowned School, NBC News (Feb. 10,
2021) (describing Lowell High School as “50.6 percent Asian,” and
quoting San Francisco Unified School District’s passed resolution
abandoning use of grades and standardized tests for Lowell High admission as justified by these criteria having “created a school that
does not reflect the diversity of SFUSD students and perpetuates
segregation and exclusion”).
5
Alex Zimmerman & Monica Disare, De Blasio’s Specialized
School Proposal Spurs Outrage in Asian Communities, Chalkbeat
6
9
number of Asian-Americans qualifying for seats at prestigious magnet schools have chosen to do away with quantifiable metrics for admission, usually in favor of “holistic”
processes. Asian-Americans found fleeting success in litigation over the practice in a Fairfax magnet high school
before the Fourth Circuit permitted the diversity program to proceed.7
Here, too, the Court has emphasized that the Constitution does not countenance racially motivated decisions of
which students may attend which elementary and secondary schools. “The Court in Grutter expressly articulated
key limitations on its holding— … noting the unique context of higher education—but these limitations were
largely disregarded by the lower courts in extending
Grutter to uphold race-based assignments in elementary
New
York
(Jun.
5,
2018),
https://ny.chalkbeat.org/2018/6/5/21105142/de-blasio-s-specialized-school-proposalspurs-outrage-in-asian-communities (last visited May 8, 2022) (citing
subject schools as having 62% Asian American enrollment and goal of
admissions policy change as “to boost diversity at the city’s elite high
schools” by “enroll[ing] more black and Hispanic students”).
See generally Coalition for TJ v. Fairfax County Sch. Board,
2022 WL 579809 (E.D. Va. Feb. 25, 2022), stayed 2022 WL 986994 (4th
Cir. Mar. 31, 2022), appeal pending No. 22-1280 (4th Cir.). See also
Hannah Natanson, Fairfax School Board Switches to ‘Holistic Review’ Admissions System for Thomas Jefferson High School, Wash.
Post (Dec. 17, 2020) (citing “[d]iscontent over the demographics” of
this “70 percent Asian” school as justification for move); Alex Nester,
Fairfax County Schools Came Under Fire for Effort to Boost Black
and Hispanic Enrollment, Wash. Free Beacon (Jan. 14, 2022) (quoting former president of parent-teacher-student association as saying
new district policies are a “targeted hit” on Asian Americans under
the “guise” of “diversity”).
7
10
and secondary schools. The present cases are not governed by Grutter.” Parents Involved in Cmty. Sch., 551
U.S. at 725; see also Brown v. Bd. of Educ., 347 U.S. 483
(1954) (forbidding race-based sorting of students in K-12
schools).
That clarity has not stopped decision-makers citing the
importance of “diversity” and “demographics” to their enterprise and following what they apparently misperceive
to be the meaning of Grutter to allow a morass of racial
allocations. Nor has it stopped lower courts from relying
on Grutter to find that increasing racial diversity in specialized high schools is a compelling government interest.
See, e.g., Christa McAuliffe Intermediate Sch. PTO, Inc.
v. DeBlasio, 364 F. Supp. 3d 253, 282-83 (S.D.N.Y. 2019).
C. Private businesses and public employers
and regulators adopt “diversity” as justification for racial discrimination in
hiring and contracting.
The Civil Rights Act of 1866, legislation that predates
the Fourteenth Amendment, guarantees all Americans
“the same right” to “make and enforce contracts,” including “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981. Save only for the narrow exceptions this Court has recognized,8 these guarantees bar
See U.S. Steelworkers of Am. v. Weber, 443 U.S. 193 (1979) (recognizing narrow exception to parallel provisions of Title VII of the
Civil Rights Act of 1964); Schurr v. Resorts Int’l Hotel, Inc., 196 F.3d
486, 498-99 (3rd Cir. 1999) (treating Title VII and § 1981 claims as coextensive in scope); Marsh v. Bd. of Ed., 581 F. Supp. 614, 619-26
8
11
employers (including law firms) from discriminating on
the basis of race in their hiring, firing, assignments, and
promotions of individuals.9 Federal civil rights law also
bars parties from discriminating in their contracting with
corporations because of the race of their counter-parties’
personnel.10
And yet, citing the importance of “diversity,” “external
legitimacy,” and “demographic mirroring,” public employers have since Grutter, successfully justified race-based
hiring or promotional practices in federal and state courts.
See, e.g., Petit v. City of Chicago, 352 F.3d 1111, 1114 (7th
Cir. 2003); Bredesen v. Tenn. Judicial Selection Comm’n,
214 S.W.3d 419 (Tenn. 2007); see generally Darwinder S.
Sidhu, Racial Mirroring, 17 U. Pa. J. Const. L. 1335, 13421347 (2015) (discussing cases).
(E.D. Mich. 1984) (extending Weber to § 1981 claims) (vacated on appeal on other grounds).
Curt Levey, The Legal Implications of Complying with Race
and Gender-Based Client Preferences, 8 Federalist Soc’y Rev. 14
(2007).
9
Brown v. J. Kaz., Inc., 581 F.3d 175, 181 (3rd Cir. 2009) (reversing dismissal of a contractor’s § 1981 claim and clarifying that statute
applies beyond employment scenarios); Vill. Green at Sayville, LLC
v. Town of Islip, 2019 U.S. Dist. LEXIS 167177, at *22, 2019 WL
4737054 (E.D.N.Y. Sept. 27, 2019) (denying motion to dismiss corporate plaintiff’s § 1981 claim against town whose allegedly racially motivated inaction rendered plaintiff’s contract unperformable);
Annuity, Welfare & Apprenticeship Skill Improvement & Safety
Funds of the Int’l Union of Operating Eng’rs, Local 15, 15A, 15C &
15D v. Tightseal Constr., Inc., 2018 U.S. Dist. LEXIS 138041, at *16*18, 2018 WL 3910827 (S.D.N.Y. Aug. 14, 2018) (denying motion to
dismiss corporate plaintiff’s § 1981 claim for termination of contract
allegedly because of race of plaintiff’s personnel).
10
12
State regulators have followed suit with gender-andrace based quotas in the name of “diversity.”11
More recently, in furtherance of “diversity,” major
American corporations have announced as policy an intention to discriminate in their contracting because of the
race of their counterparties’ personnel.12 Again, the language employed in the announcements pegs these actions
to Grutter’s widely perceived blessing of racial discrimination undertaken in the name of achieving “diversity.”
See Meland v. Weber, 2021 WL 6118651, 2021 U.S. Dist. LEXIS
246227 (E.D. Cal. Dec. 27, 2021) (denying California’s diversity rationale for a gender-based quota on corporate board membership, but
upholding its “remedial purpose”); In re Amendment to Rule Regulating the Fla. Bar 6-10, 315 So. 3d 637 (Fla. 2021) (repudiating Florida Bar rule that imposed minority-status-based quota for
participants at CLE conferences).
11
McDonald’s Overhauling Workplace Culture to Meet Diversity
Goals,
CBS
News
(Feb.
18,
2021),
https://www.cbsnews.com/video/mcdonalds-overhauling-workplaceculture-diversity-goals/ (last visited May 8, 2022) (company will tie executive compensation to the race of those working for those executives); Sam Skolnik, Novartis Demands Outside Counsel Make
Tough Diversity Guarantees, Bloomberg Law (Feb. 12, 2020),
https://news.bloomberglaw.com/us-law-week/novartis-demands-outside-counsel-make-tough-diversity-guarantees (last visited May 8,
2022) (conditioning 15% of bills on firms staffing matters in compliance with “diversity” requirements, so demonstrating “commit[ment]
to being a leader in diversity and inclusion”); Ruiqi Chen, Coke GC
Tired of “Good Intentions,” Wants Firm Diversity Now, Bloomberg
Law (Jan. 28, 2021), https://news.bloomberglaw.com/business-andpractice/coke-gc-tired-of-good-intentions-wants-law-firm-diversitynow (last visited May 8, 2022) (among other items, proposing conditioning payment of 30% of bills on firms staffing matters in compliance
with “diversity” requirements, while also conditioning both future retentions and placement on “Preferred Firm Panel” on compliance).
12
13
D. Courts discriminate on the basis of race in
appointing class counsel.
Closest to home for HLLI, even courts—which should
know best the illegality of treading these grounds—have
followed the culturally received understanding of Grutter
into race-based allocations in the nominal service of “diversity.”
The Center for Class Action Fairness once asked this
Court to review a then “unique” and “highly unusual practice” of forcing class-counsel to discriminate in staffing legal matters on the basis of race. Martin v. Blessing, 571
U.S. 1040, 1040 (2013) (Alito, J., respecting denial of the
petition). The Court declined, with one justice commenting that he was “hard-pressed to see any ground on which
[the judge’s] practice can be defended.” Id. at 1041-42. The
district judge in question was unapologetic. Ian Millhiser,
Federal Judge Slams Justice Alito’s Lack Of ‘Understanding Or Interest’ In Race Or Gender Equality,
ThinkProgress (Dec. 9, 2013).
Unfortunately, in the years since that 2013 case, and
despite Justice Alito’s warning, this legally indefensible
practice has become much more commonplace. In 2020,
another Southern District of New York judge concluded
that the race and sex of potential class-counsel’s lawyers
“is a relevant factor for the [c]ourt,” as “[f]or well over a
decade now, the courts have emphasized the importance
of diversity in their selection of counsel.” City of Providence v. AbbVie Inc., 2020 U.S. Dist. LEXIS 189472, at
*26, 2020 WL 6049139 (S.D.N.Y. Oct. 13, 2020). Judge Liman cited examples from district courts across the country. Id. (citing In re Robinhood Outage Litig., No. 20-cv01626-JD (N.D. Cal. July 14, 2020); SEC v. Adams, 2018
U.S. Dist. LEXIS 93837, 2018 WL 2465763, at *4 n.6 (S.D.
Miss. June 1, 2018); In re Oil Spill by Oil Rig Deepwater
14
Horizon, 295 F.R.D. 112, 137-38 (E.D. La. 2013); Public
Employees’ Ret. Sys. of Miss. v. Goldman Sachs Group,
Inc., 280 F.R.D. 130, 142 n.6 (S.D.N.Y. 2012); In re Dynex
Capital, Inc. Sec. Litig., 2011 U.S. Dist. LEXIS 22484,
2011 WL 781215, at *9 (S.D.N.Y. Mar. 7, 2011); In re J.P.
Morgan Chase Cash Balance Litig., 242 F.R.D. 265, 277
(S.D.N.Y. 2007)). District courts’ selection of class-counsel
based on “diversity” concerns rather than exclusively on
Rule 23 factors show no sign of abating—and is increasing
as the body of precedent continues to grow.13
How could so many district courts get this so wrong?
Judge Liman again helpfully provides the answer, explaining that “[a] commitment to diversity is not a commitment to quotas. See Grutter v. Bollinger, 539 U.S. 306, 334,
123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (rejecting the use
of racial quotas in the race-conscious affirmative action
See, e.g., In re FICO Antitrust Litig., 2021 WL 4478042, 2021
U.S. Dist. LEXIS 189371, at *14-*15, *24 (N.D. Ill. Sept. 30, 2021)
(citing City of Providence and “agree[ing[ that it is in the class’s best
interest to have a diverse legal team at its disposal”); see also Amanda
Bronstad, MDL Judge Taps “Most Diverse Leadership Team Ever”
in Data Breach Class Action, Nat. L. J. (Mar. 3, 2021) (covering appointment in In re Blackbaud, Inc., Customer Data Breach Litig.,
3:20-mn-02972-JMC (D.S.C.)); Case Management Order No. 2 (Organizational Structure and Appointment of Counsel Leadership),
Blackbaud, Dkt. 14 at 5 (reflecting in “Appointment of Plaintiffs’
Counsel Leadership” section that despite “[t]he court desir[ing] to appoint individuals, not firms,” it was “committed to the diversity of
MDL leadership. Given the multitude of claims … from diverse Plaintiffs … diverse leadership is integral to the success of these proceedings. The court also seeks to develop the future generation of diverse
MDL leadership by providing competent candidates with opportunities for substantive participation now.”).
13
15
context while recognizing a compelling interest in promoting diversity).” City of Providence, 2020 U.S. Dist. LEXIS
189472, at *26. In short, lower courts are using Grutter's
presumptive blessing of “diversity” to justify allocating
benefits on the basis of race.
III. Race-conscious decisions achieve only superficial
diversity, failing to realize either the educational
benefits approved by Grutter or the broader goals
championed by advocates of affirmative action.
As actors inside and outside the university setting have
relied on Grutter to make race-conscious decisions in the
name of “diversity,” they have failed to achieve either the
diversity of viewpoint and experience that Grutter suggested could enhance higher education or the broader reparative goals often cited to justify affirmative action.
Instead, studies show that universities are selecting racially diverse students through criteria more likely to reflect their family’s wealth than diverse life experiences.
Even some high-profile proponents of affirmative action
for college admissions have expressed reservations that
such programs no longer serve their intended beneficiaries. In 2004, the New York Times noted that Professors
Lani Guinier and Louis Henry Gates observed during a
reunion of Harvard University’s Black alumni, “that a majority of them—perhaps as many as two-thirds—were
West Indian and African immigrants or their children, or
to a lesser extent, children of biracial couples.” Sara
Rimer & Karen W. Arenson, Top Colleges Take More
Blacks, but Which Ones?, N.Y. Times (June 24, 2004).
Studies show that a majority of the black students at many
elite colleges are indeed African immigrants, a group that
averages a higher educational attainment than any population group in the country, including Asian-American,
16
while Latino diversity statistics are bolstered by “[a]ffluent, well-educated new immigrants from South America
… while the children of migrant farm workers are left behind.” See Lani Guinier, Our Preference for the Privileged,
Bost. Globe (July 9, 2004); see also Clarence Page, As
Black Immigrants Collect Degrees, Is Affirmative Action
Losing Direction?, Baltimore Sun (Mar. 20, 2007).
Those comments underscored the uneasy tension that
programs ostensibly set up to benefit the descendants of
slaves to correct for past injustices were now primarily
benefiting students who either had not endured the legacy
of past racial discrimination or the children of parents who
had already achieved a measure of financial and/or professional success, all under the guise of “diversity.” 14 Professor Guinier further opined that such diversity is
superficial because such students are too similar to “their
wealthier white counterparts,” resulting in a “[d]iversity
[that] produces a more interesting rainbow of students
who benefited from a host of advantages assembled from
birth.” Guinier, supra, Our Preference for the Privileged.
Even if racial preferences used to create a diverse student body achieved that goal on paper, the universities
that purport to want diversity are encouraging many
black students to join self-segregated “safe spaces.”15
See Daniel N. Lipson, Where’s the Justice? Affirmative Action’s
Severed Civil Rights Roots in the Age of Diversity, 6 Perspectives on
Pol. 691, 700 (Dec. 2008) (“Numerous affirmative action scholars and
activists have raised concerns about the detachment of civil rights
roots from affirmative action, calling attention to the dangers of this
transformation….”).
14
E.g., Isabella Brown, Black Affinity AUx2 Is Praised as a Safe
Space for Black Students, The Eagle (Aug. 13, 2021).
15
17
Such race-based spaces and affinity groups deny the university community the very diversity upon which Grutter
justified its limited acceptance of race-conscious admissions. In short, today’s race-conscious admission policies
are not achieving what Grutter intended.
In the corporate and employment context, increased attention to diversity often is correlated with less diversity
in viewpoint and speech regulation. As many companies
have adopted diversity and inclusion programs, employees who do not offer full-throated support for specific
viewpoints on controversial topics favored by the corporations such as race-based reparations, critical race theory,
and bias in news reporting are reporting adverse employment actions. See Christopher F. Rufo, The Price of Dissent, City Journal (Jan. 5, 2022).
These critiques highlight the false promise of using “diversity” as a justification for preferences based on race or
ethnicity. The diversity achieved typically is superficial
and artificial. A better method, and one required by the
Constitution, would be to treat all students equally, regardless of their race or ethnicity.
***
Racism still exists, but we no longer live in the injustice
of Jim Crow America, which ended decades before Grutter. Since Grutter, America has elected an African-American president and an African-American vice-president;
indeed, major parties’ African-American nominees have
won three out of three national elections. Since Grutter,
African-Americans have won Gallup’s “Most Admired
Man” or “Most Admired Woman” annual poll fifteen times
in the last thirteen years Gallup conducted the poll. Gallup’s most admired man and woman poll, Wikipedia
(May 8, 2022). Racial prejudice against African-Americans
18
is today not even remotely socially acceptable; indeed,
prominent media people and academics lose their jobs or
face discipline simply because they fail to be sufficiently
supportive of the so-called anti-racism movement. E.g.,
Editors, Canceled: A Running List of the People, Places,
and Things That Have Been Toppled as the Country
Reckons with Racism, Los Angeles Magazine (Jun. 11,
2020). American icons like Coca-Cola and McDonald’s are
so opposed to discrimination against African-Americans
that they are willing to risk violating the law to demonstrate that opposition. America as a country is blessedly
past the point where African-Americans cannot succeed
because past discrimination has been inadequately remedied. “‘Structural racism’ isn’t an explanation, it’s an
empty category.” Glenn Loury, Unspeakable Truths
about Racial Inequality in America, Quillette (Feb. 10,
2021). Even under its own terms, it is time for Grutter to
end. “The way to stop discrimination on the basis of race
is to stop discriminating on the basis of race.” Parents Involved in Cmty. Sch., 551 U.S. at 748.
CONCLUSION
All across the American legal landscape, private and
public actors, like Harvard and UNC here, share the same
misreading of Grutter and believe it to have created a “diversity-serving” exception stronger than the Constitution’s general rule against race-based decision-making.
But the Court never sought that broadened application,
which Justice O’Connor explicitly sought to prevent in her
majority opinion in Grutter. Grutter has not succeeded in
carving out a “special niche” for universities to engage in
otherwise forbidden race-based decision-making. Instead,
it has invited a systemic assault on America’s deeply cherished principles of equal protection. When combined with
19
the dramatic racial progress America has made in the last
two decades, it is time for Grutter’s self-envisioned sunset.
The lower court decisions should be reversed.
Respectfully submitted,
Theodore H. Frank
Counsel of Record
Anna St. John
Hamilton Lincoln Law Institute
1629 K Street NW, Suite 300
Washington, DC 20006
(703) 203-3848
ted.frank@hlli.org
May 9, 2022
Ilya Shapiro
600 New Jersey Ave., N.W.
Washington, DC 20001
(202) 662-9861
ilya.shapiro@gmail.com
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.