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,

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 AMICUS CURIAE PROJECT 21 IN

SUPPORT OF PETITIONER

________________

David H. Thompson

Counsel of Record

Peter A. Patterson

Brian W. Barnes

John D. Ohlendorf

Megan M. Wold

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com

May 9, 2022

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

CORPORATE DISCLOSURE STATEMENT .......... iii

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

STATEMENT OF INTEREST OF

AMICUS CURIAE ....................................................... 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT ................................................ 2

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

I.

II.

Grutter and Bakke’s Allowance of the Use of

Race in Admissions Based on the So-Called

Diversity Rationale is Grievously Wrong. ....... 5

A.

The Diversity Rationale Is

Fundamentally Contrary to

Principles of Equal Protection. ............. 5

B.

From the Beginning, Even the

Supporters of Affirmative Action

Understood that the Diversity

Rationale Was Unpersuasive. ............ 12

C.

The Diversity Rationale Has

Become Even Less Persuasive in the

Intervening Years. ............................... 15

Fostering “Diversity” By Focusing on Race

Has Profoundly Negative Consequences. ...... 22

ii

A.

Race-Based Diversity Policies

Instrumentalize Racial Minorities

for the Purported Benefit of Other

Students. .............................................. 23

B.

Race-Based Diversity Policies

Stigmatize Racial Minorities By

Calling Into Question Whether They

Were Admitted On Their Merits. ........ 25

C.

Race-Based Diversity Policies Harm

Racial Minorities’ Educational

Achievement. ........................................ 29

D.

Race-Based Diversity Policies

Disproportionately Benefit Wealthy

Members of Favored Races. ................. 32

CONCLUSION .......................................................... 33

iii

CORPORATE DISCLOSURE STATEMENT

Amicus curiae Project 21 is an initiative of the

National Center for Public Policy Research, which has

no parent company. No publicly held company owns

10 percent or more of its stock.

iv

TABLE OF AUTHORITIES

Page

CASES

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ........................................ 26, 27

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

488 U.S. 469 (1989) .............................................. 26

Fullilove v. Klutznick,

448 U.S. 448 (1980) .............................................. 27

Gamble v. United States,

587 U.S.---, 139 S.Ct. 1960 (2019) ....................... 22

Grutter v. Bollinger,

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

Hirabayashi v. United States,

320 U.S. 81 (1943) .................................................. 6

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

Council 31,

138 S.Ct. 2448 (2018) ........................................... 21

Loving v. Virginia,

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

Parents Involved in Cmty. Sch. v. Seattle

Sch. Dist. No. 1,

551 U.S. 701 (2007) ................................................ 4

Payne v. Tennessee,

501 U.S. 808 (1991) ................................................ 4

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................................ 2

Ramos v. Louisiana,

140 S.Ct. 1390 (2020) ..................... 4, 12, 13, 15, 23

v

University of California v. Bakke,

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

CONSTITUTION

U.S. CONST. amend XIV, § 1 ....................................... 5

OTHER AUTHORITIES

Peter Arcidiacono, et al., University Differences

in the Graduation of Minorities in STEM

Fields: Evidence from California,

AM. ECON. REV. (Mar. 2016) .................... 30, 31, 32

Peter Arcidiacono, et al., What the Students for

Fair Admissions Cases Reveal About Racial

Preferences, J. OF ECON. LIT. (Apr. 15, 2022) ...... 33

Ofra Bloch, Diversity Gone Wrong: A Historical

Inquiry Into the Evolving Meaning of Diversity

from Bakke to Fischer, 20 J. CONST. L. 1145

(2018) .............................................................. 23, 24

Br. for Pet., Bakke, 1997 WL 187977

(June 7, 1977) ....................................................... 13

Kevin Brown & Jeannine Bell, Demise of the

Talented Tenth: Affirmative Action and the

Increasing Underrepresentation of Ascendant

Blacks at Selective Higher Educational

Institutions, 69 OHIO ST. L.J. 1229 (2008) ............. 8

Rebecca E.J. Cadenhead, The Truth About Imposter

Syndrome, HARVARD MAGAZINE (2022) ............... 28

Erwin Chemerinsky, Making Sense of the

Affirmative Action Debate,

22 OHIO N. UNIV. L. REV. 1159 (1996) ................. 17

vi

Raj Chetty, et al., Mobility Report Cards: The Role

of Colleges in Intergenerational Mobility

(July 2017), https://bit.ly/3vSdFyf ....................... 32

Charles J. Cooper, A Note on Justice Marshall &

Stare Decisis, 1992 PUB. INT. L. REV. 95 ............. 22

Charles J. Cooper, Stare Decisis: Precedent &

Principle in Constitutional Adjudication,

73 CORNELL L. REV. 401 (1988) ............................ 22

Alan Dershowitz & Laura Hanft, Affirmative

Action and the Harvard College DiversityDiscretion Model: Paradigm or Pretext,

1 CARDOZO L. REV. 379 (1979) .............................. 18

Owen Fiss, The Accumulation of Disadvantages,

106 CAL. L. REV. 1945 (2018) ............................... 20

Owen M. Fiss, Affirmative Action as a Strategy of

Justice, 17 PHIL. & PUB. POL’Y 37 (1997) ............. 17

Ashley M. Hibbett, The Enigma of the Stigma:

A Case Study on the Validity of the Stigma

Arguments Made in Opposition to Affirmative

Action Programs in Higher Education,

21 HARV. BLACKLETTER L.J. 75 (2005) .......... 27, 28

Osamudia R. James, White Like Me: The Negative

Impact of the Diversity Rationale on White

Identity Formation, 89 N.Y.U. L. REV. 425

(2014) .................................................................... 25

Richard Kahlenberg, A Better Way to Diversity

Harvard, SLATE (June 22, 2018) ................... 32, 33

ANTHONY KRONMAN, THE ASSAULT ON AMERICAN

EXCELLENCE 134 (2019) ................................. 20, 24

Sanford Levinson, Diversity,

2 U. PA. J. CONST. L. 573 (1999) ...................... 7, 16

vii

Goodwin Liu, Racial Justice in the Age of Diversity,

106 CAL. L. REV. 1977 (2018) ..................... 9, 17, 33

Brian N. Lizotte, The Diversity Rationale:

Unprovable, Uncompelling,11 MICH. J. OF

RACE & L. 625 (2006) ......................................... 6, 7

Alana Massey, Transforming White People Is Not

the Job of Minority Students, PACIFIC STANDARD

(Apr. 10, 2015), https://bit.ly/38Axt18 ................. 25

James McWhorter, It’s Time to End Race-Based

Affirmative Action, N.Y. TIMES (Jan. 28, 2022) .. 23

Meet the Class of 2023, THE HARVARD CRIMSON,

available at https://bit.ly/37Myi6Z ...................... 10

Meet the Class of 2024, THE HARVARD CRIMSON,

available at https://bit.ly/3Krw5eb ...................... 10

Meet the Class of 2025, THE HARVARD CRIMSON,

available at https://bit.ly/36Tkozj........................ 10

Orlando Patterson, Affirmative Action:

The Sequel, N.Y. TIMES (June 22, 2003),

https://nyti.ms/3KmkbCu ...................................... 8

Reply Br., Bakke, 1977 WL 189552 .......................... 13

Naomi Schaefer Riley, Harvard’s Conservatives

Shouldn’t Have to Hide Behind Pseudonyms,

BLOOMBERG (Dec. 13, 2021),

https://bloom.bg/3y0QTXo ................................... 12

Jed Rubenfeld, Affirmative Action,

107 YALE L.J. 427 (1997) ................................ 16, 17

RICHARD SANDER AND STUART TAYLOR, JR.,

MISMATCH: HOW AFFIRMATIVE ACTION HURTS

STUDENTS IT’S INTENDED TO HELP, AND WHY

UNIVERSITIES WON’T ADMIT IT (2012) ............ 29, 30

viii

Michael Selmi, The Facts of Affirmative Action,

85 VA. L. REV. 697 (1999) ..................................... 20

Peter H. Shuck, Affirmative Action:

Past, Present, and Future,

20 YALE L. & POL’Y REV. 1 (2002) .................... 7, 16

Robin Walker Sterling, Through a Glass Darkly:

Systemic Racism, Affirmative Action, and

Disproportionate Minority Contact,

120 MICH. L. REV. 451 (2021) .............................. 21

Ellen Bara Stolzenberg, et al., The American

Freshman: National Norms Fall 2019,

COOPERATIVE INST. RSCH. PROGRAM (2020),

https://bit.ly/3FeLHRD ........................................ 11

Amanda Y. Su, Reversing 2016 Stance, Harvard

Republican Club Endorses Donald Trump for

President, THE HARVARD CRIMSON (Sept. 30,

2020), https://bit.ly/3KH8OW5 ............................ 10

1

STATEMENT OF INTEREST OF

AMICUS CURIAE 1

Amicus curiae Project 21, the national leadership

network of black conservatives, is an initiative of the

National Center for Public Policy Research to promote

the views of black Americans whose entrepreneurial

spirit, dedication to family, and commitment to

individual responsibility have not traditionally been

echoed by the nation’s civil-rights establishment. The

National Center for Public Policy Research is a

communications and research foundation supportive

of the view that the principles of a free market,

individual liberty, and personal responsibility provide

the greatest hope for meeting the challenges facing

America in the 21st century.

Project 21 has regularly participated as amicus

curiae in cases before this Court. This case concerns

Project 21 because it raises vital questions about the

pernicious effects of racial classifications and presents

the opportunity to vindicate the U.S. Constitution’s

guarantee of equal protection by eliminating racebased preferences in college admissions, one of the

last circumstances in which race-based decisionmaking is protected by current law.

1 No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. The

Constitutional Defense Fund, Inc. made a monetary contribution

to fund the preparation and submission of this brief. All parties

have consented to the filing of this brief.

2

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

The Constitution promises all Americans a right

to equal treatment and that “no discrimination shall

be made against them by law because of their color.”

Plessy v. Ferguson, 163 U.S. 537, 556 (1896) (Harlan,

J., dissenting), overruled by Brown v. Bd. of Educ.,

347 U.S. 483 (1954). Yet since its 1978 decision in

University of California v. Bakke, 438 U.S. 265 (1978),

this Court has blessed the overt use of racial

preferences in admissions by institutions of higher

education. It has done so not to achieve some

temporary and critically pressing need, but for the

haziest of purposes: “obtaining the educational

benefits that flow from a diverse student body.”

Grutter v. Bollinger, 539 U.S. 306, 328 (2003)

(quotation marks omitted). That interest is patently

insufficient to justify overt racial discrimination in

contravention of our most fundamental constitutional

guarantees. The decisions of this Court holding

otherwise are demonstrably and grievously wrong.

This Court should overrule them.

The so-called “diversity rationale,” first

articulated by Justice Powell’s solo opinion in Bakke

and then adopted in Grutter, cannot justify the

continuing, blatant racial discrimination in higher

education. It never could. Justice Powell stood alone

in finding this rationale persuasive in 1978: the

University of California did not seriously press it, and

no other Justice on the Court endorsed it. And it has

not become more persuasive with the passage of time.

While

universities,

academics,

and

school

administrators pay lip service to the diversity

3

rationale in litigation, their statements outside the

courtroom—and the makeup of their incoming

classes—tell a different story. The goal of these

programs is not to admit “a ‘critical mass’ of minority

students” to obtain “the educational benefits that

diversity is designed to produce,” Grutter, 539 U.S. at

329-30, it is to ensure that the student body has a

particular racial makeup, out of a desire to “aid[ ]

persons perceived as members of relatively victimized

groups at the expense of other innocent individuals,”

Bakke, 438 U.S. at 307. The fact that even the

defenders of race-based admissions policies justify

them on grounds that this Court has not adopted—

and has expressly and repeatedly repudiated—

expresses a profound truth: The diversity rationale is

deeply unpersuasive, and the decisions that relied

upon it to uphold overt race discrimination must go.

Bakke and Grutter are not only wrong in

constitutional principle, they are pernicious in effect.

The race discrimination those decisions sanction has

inflicted deep and lasting harm—just as racism

always has done. That harm has fallen on Americans

of all races, including Asian Americans excluded from

places like Harvard because of their “wrong” ethnicity.

And the harm has, perversely, also fallen on the very

disadvantaged minorities that these race-based

programs are ostensibly designed to aid. Some of

these minority students may get into an Ivy, but they

on balance do less well academically than they could

have in the school they would have attended but for

the racial preference, and they spend the rest of their

lives stigmatized by their very membership in a race

perceived as benefiting from “affirmative action.”

Moreover, the purported benefit of the “diversity

4

rationale” redounds to the other (white) students, who

supposedly benefit from their minority classmates’

“diverse” backgrounds.

The decisions upholding this discriminatory

practice were wrong when they were decided and are

wrong today. The Court should end its

experimentation with the machinery of racial

discrimination.

ARGUMENT

Stare decisis is not “an inexorable command”—

particularly in cases involving constitutional

interpretation, where “correction through legislative

action is practically impossible.” Payne v. Tennessee,

501 U.S. 808, 828 (1991). In determining whether to

overrule one of its precedents, this Court considers a

variety of factors, including whether “the prior

decision was not just wrong, but grievously or

egregiously wrong,” whether it has “caused significant

negative jurisprudential or real-world consequences,”

and whether overruling it would “unduly upset

reliance interests.” Ramos v. Louisiana, 140 S.Ct.

1390, 1414–15 (2020) (Kavanaugh, J., concurring). We

focus on the first two sets of considerations here. Both

overwhelmingly favor overruling Grutter and Bakke

and restoring the principle at the heart of the

Fourteenth Amendment’s Equal Protection Clause:

“no State has any authority … to use race as a factor

in affording educational opportunities among its

citizens.” Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701, 747 (2007) (quoting Tr. of

Oral Arg., Brown v. Bd. of Educ., 347 U.S. 483 (1954)).

5

I.

Grutter and Bakke’s Allowance of the

Use of Race in Admissions Based on

the So-Called Diversity Rationale is

Grievously Wrong.

Both Grutter and Bakke are premised on the socalled “diversity rationale”—the notion that schools

have a compelling interest in using race-based

admissions policies to pursue “the educational

benefits that flow from a diverse student body.”

Grutter, 539 U.S. at 325, 328. But far from compelling,

that premise is antithetical to the Constitution’s

guarantee of Equal Protection, was unpersuasive—

and seen as unpersuasive—at the time it was adopted,

and has only become less persuasive over time.

A. The Diversity Rationale Is

Fundamentally Contrary to Principles

of Equal Protection.

1. The diversity rationale depends on the premise

that skin color predicts a person’s contributions to

society. That premise is false and anathema to

America’s founding principles.

The signers of the Declaration of Independence

believed it “to be self-evident, that all men are created

equal” and “endowed by their Creator with certain

unalienable Rights.” Our Nation struggled early to

live up to that principle and will always struggle to

live up to it fully. But the Fourteenth Amendment

sought to correct our early failures, guaranteeing that

no state could “deny to any person within its

jurisdiction the equal protection of the laws.” U.S.

CONST. amend XIV, § 1.

6

That guarantee is a bedrock principle of our

system of government. “Distinctions between citizens

solely because of their ancestry are by their very

nature odious to a free people whose institutions are

founded upon the doctrine of equality.” Hirabayashi v.

United States, 320 U.S. 81, 100 (1943). See also Loving

v. Virginia, 388 U.S. 1, 11 (1967); Grutter, 539 U.S. at

326.

Yet race-based admissions policies distinguish

among citizens based solely on skin color, and when

they do so in service of the diversity rationale, it is

because of the offensive belief that skin color predicts

the contributions an individual might make to

academic discourse. After all, the point of the diversity

rationale is, according to its defenders, not to achieve

an “aesthetic” diversity of different skin colors in the

classroom, id. at 354–55 & n.3 (Thomas, J.,

dissenting), but rather a diversity of viewpoints,

backgrounds, and experiences. The idea is that

assembling students with varying “personal talents …

or other qualifications deemed important,” Bakke, 438

U.S. at 317, ultimately “promotes learning outcomes.”

Grutter, 539 U.S. at 330 (quotation marks omitted).

It follows that any admissions system that

achieves “diversity” by factoring in race depends on

pernicious racial stereotyping. When a school

pursuing the diversity rationale assembles a student

body based on the students’ race, it is using race as a

proxy for something else: for the diversity in talents,

experiences, and backgrounds that the rationale

actually purports to achieve. See Brian N. Lizotte, The

Diversity Rationale: Unprovable, Uncompelling, 11

MICH. J. OF RACE & L. 625, 649-50 (2006) (“[R]acial

7

diversity serves as a proxy for viewpoint diversity,” in

part because “direct measurement would present too

great an administrative burden.”). The underlying

presumption is thus that one racial group is different

from other racial groups in these more meaningful

ways solely because of their skin color. Peter H. Shuck,

Affirmative Action: Past, Present, and Future, 20 YALE

L. & POL’Y REV. 1, 40-41 (2002). This “racial

essentialism” “utterly contradicts liberal, egalitarian,

legal, scientific, and religious values” embodied in the

Declaration of Independence and the Fourteenth

Amendment. Shuck, id. at 41.

This racial-stereotyping premise is also false on its

face. A person’s skin color, apart from his or her

socioeconomic background, life experience, religious

background, or interests, says nothing about that

individual’s views or likely contributions to the

classroom or society. One cannot speak of a “black”

perspective or a “Hispanic” perspective, because “no

one … is so stupid as to believe that all (or even most)

members of any given group necessarily have similar

opinions on a variety of important issues.” Sanford

Levinson, Diversity, 2 U. PA. J. CONST. L. 573, 577

(1999); see also Grutter, 539 U.S. at 333 (quoting

Michigan Law School’s brief as disclaiming “any belief

that minority students always (or even consistently)

express some characteristic minority viewpoint on

any issue”). It would be absurd—and illegal—for an

employer to reduce job applicants to racial stereotypes

or for a police officer to premise traffic stops on broad

assumptions about particular racial groups. See id.

College admissions are not different. Yet when the

Court authorized schools to use racial stereotypes in

8

choosing applicants, it invited race essentialism to

run amok in college admissions.

Seeming to acknowledge this problem, some

affirmative action proponents now advocate for

admissions policies that consider race only alongside

other personal characteristics. Orlando Patterson, a

Harvard professor, has urged affirmative action for

“African-Americans, Native Americans and most

Latinos” that “include[s] an economic means test,”

such that “[o]nly those who are poor or grew up in

deprived neighborhoods should benefit.” Orlando

Patterson, Affirmative Action: The Sequel, N.Y. TIMES

(June 22, 2003), https://nyti.ms/3KmkbCu. Other

scholars have noted that increasing numbers of

affirmative action admissions—even majorities of

such admissions at some elite schools—go to the

children of African immigrants, whose forebears did

not experience slavery and racial segregation in the

United States. Kevin Brown & Jeannine Bell, Demise

of the Talented Tenth: Affirmative Action and the

Increasing Underrepresentation of Ascendant Blacks

at Selective Higher Educational Institutions, 69 OHIO

ST. L.J. 1229, 1277-71 (2008). They propose expanded

application questions to help distinguish between

recent African immigrants and African-Americans

with longer histories in the United States, coupled

with essay questions that invite applicants to discuss

their experiences with racial discrimination in the

United States. Id.

Proposals like this reveal two things: (1)

identifying diversity-value based on skin color alone

depends on racial stereotypes that are inaccurate,

even to affirmative action proponents, and (2) the

9

purpose of race in admissions, insofar as it contributes

to diversity at all, is as a proxy for the historic

experience of societal discrimination, see infra at 1521. See also Goodwin Liu, Racial Justice in the Age of

Diversity, 106 CAL. L. REV. 1977, 1984 (2018) (“[I]t is

becoming clear today that race alone is not enough to

identify those burdened by historical subjugation”

because “[d]ue to black immigration and the success

of affirmative action and other policies …, blackness

is no longer itself a marker of membership in an

underclass.”).

Accordingly, as these modern proponents of

affirmative action implicitly acknowledge, skin color

bears no relationship to the contributions a student

might make in future academic discourse or

community life. If universities desire students who

have overcome adversity, coped with poverty, or faced

discrimination, then they should seek those things

directly. Race-based admissions merely perpetuate

the racial stereotyping that we rightly recognize to be

illegitimate in other contexts.

2. Not only do admissions policies based on racial

stereotyping fail to achieve the genuine diversity in

experiences and viewpoints that the diversity

rationale purports to seek; in some cases they are

obviously counterproductive to that goal. Harvard

presents a striking case in point.

Harvard’s ideological conformity belies the

genuine “diversity” of experiences and viewpoints it

claims to value. The diversity rationale, properly

understood, seeks in central part to compile a student

body with ideological diversity. Bakke, 438 U.S. at 312

(Powell, J.); Grutter, 539 U.S. at 329. But Harvard

10

admits an ideologically conformist student body that

is an outlier in its leftward lean even among incoming

university freshman more generally. The diversity

Harvard seeks is only skin deep.

In its annual survey of the incoming freshman

class, The Harvard Crimson asked the Class of 2025

about their political preferences. Seventy-two percent

identified as “very” or “somewhat” liberal, while only

nine percent identified as “somewhat” or “very”

conservative. The remaining 19 percent identified as

moderate. Meet the Class of 2025, THE HARVARD

CRIMSON, available at https://bit.ly/36Tkozj. When

asked to identify by party, 55 percent identified as

Democrat, compared to only five percent as

Republican. (Twenty-six percent claimed no affiliation,

12 percent identified as Independent, and the

remainder chose “other.”) These numbers are

consistent with previous surveys. Meet the Class of

2024, THE HARVARD CRIMSON, available at

https://bit.ly/3Krw5eb (Seventy-three percent of

incoming freshmen identify as “very” or “somewhat”

liberal; seven percent of incoming freshman identify

as “somewhat” or “very” conservative); Meet the Class

of 2023, THE HARVARD CRIMSON, available at

https://bit.ly/37Myi6Z (similar). Indeed, 90 percent of

Harvard’s incoming class of 2024 supported President

Biden in the 2020 presidential election. Meet the

Class of 2024, THE HARVARD CRIMSON, available at

https://bit.ly/3Krw5eb; see also Amanda Y. Su,

Reversing 2016 Stance, Harvard Republican Club

Endorses Donald Trump for President, THE HARVARD

CRIMSON (Sept. 30, 2020), https://bit.ly/3KH8OW5.

11

Young people tend to be more liberal than older

demographics, but even still, the liberal ideological

conformity of Harvard’s incoming classes is an outlier.

In a study of students entering college in 2019, the

class of 2023, only 37 percent identified as either

“liberal” or “far-left,” while 20 percent identified as

“conservative” or “far right.” Forty-four percent of

incoming college freshmen identified as “politically

middle-of-the-road.” Ellen Bara Stolzenberg, et al.,

The American Freshman: National Norms Fall 2019,

COOPERATIVE INST. RSCH. PROGRAM, at 19 (2020),

https://bit.ly/3FeLHRD. On all three metrics,

Harvard’s student body is an outlier.

While the ideological demographics of Harvard’s

incoming freshmen do not match college students

more generally, they do approximate fairly closely the

political leanings of Harvard’s faculty: notoriously and

radically liberal. In a 2021 survey, Harvard’s faculty

identified as “liberal” or “very liberal” at a rate of 78

percent; 20 percent identified as “moderate;” and only

three percent identified as “conservative” or “very

conservative”—a percentage that will go down if

Harvey Mansfield ever retires.

Whatever the reason for the steep leftward lean

among Harvard’s incoming freshmen, it is not because

Harvard pursues an admissions policy based on

ideological diversity. To the extent Harvard does

pursue diversity in admissions, it is limited to

superficial details, like skin color, not ideological

differences that might bring students of different

worldviews together. Bakke and Grutter’s diversity

rationale has thus defeated itself: Harvard’s racebased admissions policies—touted by both the Grutter

12

majority, 539 U.S. at 335-36, and Justice Powell’s

opinion in Bakke, 438 U.S. at 316-18—has led to the

construction of a student body that utterly lacks the

diversity in experiences and viewpoints that the

diversity rationale is premised upon.

Any doubts about the ideological diversity of

Harvard’s student body are dispelled by the stifling

political correctness that pervades every aspect of

student life. Ideological conformity reigns at Harvard.

All who dare to espouse traditional sexual mores,

raise a doubt about the science of climate change, or

champion the rights of unborn children quickly learn

to keep their views to themselves or risk becoming a

pariah among their peers. Indeed, many of the articles

published in the lone conservative paper on campus

are now published under pseudonyms. See Naomi

Schaefer Riley, Harvard’s Conservatives Shouldn’t

Have to Hide Behind Pseudonyms, BLOOMBERG (Dec.

13, 2021), https://bloom.bg/3y0QTXo. Even the

President of Harvard is not immune to this stifling

ideological coerced conformity, a lesson that Larry

Summers learned the hard way.

B. From the Beginning, Even the

Supporters of Affirmative Action

Understood that the Diversity Rationale

Was Unpersuasive.

“A case may be egregiously wrong when decided,”

Ramos, 140 S.Ct. at 1415 (Kavanaugh, J., concurring),

and Bakke surely was: the diversity rationale Justice

Powell endorsed was recognized as unpersuasive by

eight of the Justices on the Court when it was first

articulated. Cf. Ramos, 140 S.Ct. at 1402 (Gorsuch, J.)

(criticizing the “dubious” view of stare decisis under

13

which “a single Justice writing only for himself has

the authority to bind this Court to propositions it has

already rejected”).

1. The diversity rationale for affirmative action

policies originated in an opinion by Justice Powell,

writing for himself. In Bakke, the medical school of the

University of California at Davis justified its racebased admission preferences not based on the

diversity rationale, but rather as a means “to

compensate for the effects of societal discrimination

on historically disadvantaged racial and ethnic

minorities” and “achieve the benefits of a truly open,

racially diverse society.” Br. for Pet., Bakke, 1997 WL

187977, at *3, 9 (June 7, 1977). While the result of that

program was greater racial diversity among students,

the purpose behind it was to remedy the perceived

effects of past discrimination.

The medical school’s own briefing dispelled any

doubt on this point. In its reply brief, the school stated

its belief, which it shared with the United States as

amicus curiae, “that this case presents one—and only

one—inescapable question: ‘whether a state

university admissions program may take race into

account to remedy the effects of societal

discrimination.’” Reply Br., Bakke, 1977 WL 189552,

at *2 (emphasis added).

In a one-Justice plurality opinion, however,

Justice Powell rejected the generalized experience of

past societal discrimination as a justification for racebased admissions programs and endorsed instead a

“diversity rationale.” Justice Powell believed that “the

purpose of helping certain groups whom the faculty of

the Davis Medical School perceived as victims of

14

‘societal discrimination’ does not justify” race-based

classifications in admissions, but he thought “the

attainment of a diverse student body” was “clearly …

a constitutionally permissible goal for an institution

of higher education.” Bakke, 438 U.S. at 310, 311-12

(Powell, J.).

Justice Powell’s diversity rationale depended on

the proposition that an admissions policy that

pursued diversity defined by skin color would yield a

school with a variety of “experiences, outlooks, and

ideas that enrich the training of its student body and

better equip its graduates to render with

understanding their vital service to humanity.” Id. at

314. Justice Powell offered no evidence for that

proposition, but rather claimed that it “is widely

believed,” based on a quote from the president of

Princeton University that had been published in a

periodical. Id. at 312, 314 n.49.

2. No other Justice on the Court in Bakke joined

Justice Powell’s opinion or endorsed his diversity

rationale. Four justices—Chief Justice Burger, thenJustice Rehnquist, and Justices Stevens and

Stewart—would have struck down the University of

California’s admissions policy under Title VI of the

Civil Rights Act, and they therefore did not reach the

constitutional question. See 438 U.S. at 412-21. And

the remaining four Justices—Justices Brennan,

White, Marshall, and Blackmun—endorsed racebased admissions not because of any “diversity

rationale,” but because of their belief that

“Government may take race into account when it

acts … to remedy disadvantages cast on minorities by

past racial prejudice.” Bakke, 438 U.S. at 325

15

(Brennan, J., concurring in part and dissenting in

part). These justices did not endorse any other

purpose for race-preferential admissions, but took the

medical school at its word, that “Davis’ articulated

purpose” was to “remedy[] the effects of past societal

discrimination.” Id. at 362.

In short, neither the Petitioner nor any other

Justice on the Court in Bakke endorsed Justice

Powell’s diversity rationale. Justice Powell was an

island unto himself, apparently, in viewing that

rationale as persuasive.

C. The Diversity Rationale Has Become

Even Less Persuasive in the Intervening

Years.

Just as the University of California did not defend

its admission policy based on the diversity rationale,

as conceived by Justice Powell, schools, activists, and

scholars today apparently do not genuinely believe in,

or pursue, that goal. Indeed, post-Bakke, “legal or

factual understandings or developments” have

further undermined the persuasiveness of the

diversity rationale. Ramos, 140 S.Ct. at 1415

(Kavanaugh, J., concurring).

Unsurprisingly, after Bakke, colleges and

universities rushed to justify their racial preferences

based on the diversity rationale that Justice Powell

had articulated. Their race-based admissions

programs, however, had been built not to attain

Justice Powell’s vision of diversity, but rather to

remedy past societal discrimination, and efforts to

cloak them in “diversity” terms did not fundamentally

change their purpose. The “diversity rationale” simply

16

drove the real rationale for race-based admissions

underground.

Legal scholars have long observed this

phenomenon in the years following Bakke. They have

noted that, “because of Justice Powell’s emphasis on

the almost unique legitimacy of ‘diversity’ as a

constitutional value, it has become the favorite

catchword—indeed, it would not be an exaggeration to

say ‘mantra’—of those defending the use of racial or

ethnic preferences.” Supra Levinson, at 577. Yet this

pivot to the diversity rationale has been “little more

than a rhetorical Hail Mary pass, an argument made

in desperation when all other arguments for

preferences have failed.” Supra Shuck, at 34.

As Professor and affirmative action proponent

Jack Balkin has explained, he “understand[s]

‘diversity’ to be a code word for representation in

enjoyment of social goods by major ethnic groups who

have some claim to past mistreatment.” Supra

Levinson, at 601 (quoting Letter from Jack Balkin,

Prof., Yale Law School, to Sanford Levinson, Prof.,

Univ. of Texas Law School (March 18, 1999)). To be

“honest about what ‘diversity’ is really about,”

Professor Balkin acknowledges, would require

admitting that “[i]t is primarily about distributive

justice of human capital,” and that “Blacks and

Hispanics should be given a larger share of this

capital to make up for their relative deprivations due

to social subordination.” Id. at 601-02. Or as Professor

Rubenfeld put the point: “Everyone knows that in

most cases a true diversity of perspectives and

backgrounds is not really being pursued” by

universities, but that “[t]he purpose of affirmative

17

action is to bring into our nation’s institutions more

blacks, more Hispanics, more Native Americans, more

women, sometimes more Asians, and so on—period.”

Jed Rubenfeld, Affirmative Action, 107 YALE L.J. 427,

471 (1997).

California Supreme Court Justice Goodwin Liu

has similarly lamented that “[e]ver since Bakke, we

have conflated concepts of justice with concepts of

diversity.” Supra Liu, at 1984. This has come “at a

cost,” because while “[d]iversity rationales greatly

expand the number of groups entitled to claim

preference or special protection, … they are an

awkward fit as justifications for policies designed to

address entrenched patterns of racial subordination.”

Id. As a result, “[t]oo often we speak of diversity when

our real concern is racial justice.” Id. at 1984-85

(emphasis added).

Other prominent liberal scholars and affirmative

action proponents are of the same mind. See, e.g.,

Erwin Chemerinsky, Making Sense of the Affirmative

Action Debate, 22 OHIO N. UNIV. L. REV. 1159, 1161

(1996) (“The most frequently identified objective for

affirmative action is to remedy past discrimination.”);

Owen M. Fiss, Affirmative Action as a Strategy of

Justice, 17 PHIL. & PUB. POL’Y 37 (1997) (“[T]wo

defenses of affirmative action—diversity and

compensatory justice—emerged in the fierce struggles

of the 1970s and are standard today, but I see them as

simply rationalizations created to appeal to the

broadest constituency. … In my opinion, affirmative

action should be seen as a means that seeks to

eradicate caste structure by altering the social

standing of our country’s most subordinated group.”);

18

Alan Dershowitz & Laura Hanft, Affirmative Action

and the Harvard College Diversity-Discretion Model:

Paradigm or Pretext, 1 CARDOZO L. REV. 379, 407

(1979) (“The raison d’etre for race-specific affirmative

action programs has simply never been diversity for

the sake of education. The checkered history of

‘diversity’ demonstrates that it was designed largely

as a cover to achieve other legally, morally, and

politically controversial goals.”).

Accordingly, while colleges and universities have

publicly invoked the diversity rationale as an

advantageous litigation position, their true aims are

the same as the University of California’s in Bakke: to

remedy past societal discrimination by admitting a

certain proportion of students from preferred races.

That is evident from the profiles of the classes they

assemble. Universities claim to practice race-based

admissions to attain a “critical mass” of students from

certain racial groups, which they define as a number

of students sufficient “[t]o ensure that these minority

students do not feel isolated or like spokespersons for

their race; to provide adequate opportunities for the

type of interaction upon which the educational

benefits of diversity depend[,] and to challenge all

students to think critically and reexamine

stereotypes.” Grutter, 539 U.S. at 380 (Rehnquist, C.J.,

dissenting). Yet this does not explain why, in a

University Michigan Law School class of

approximately 1,300 students, a “critical mass” of

African-Americans is between 91 and 108 students,

while a “critical mass” of Hispanic students is between

47 and 56, and a “critical mass” of Native American

students merely 13 to 19 individuals. Id. at 381. Why

are 100 students required to avoid isolation among

19

African-Americans, but only 20 students required for

Native Americans? How can it be that other students

find sufficient opportunities to engage with Hispanics

when only 50 are present, but with African Americans

only when there are twice as many?

The University of Michigan Law School also

consistently admitted individuals from favored racial

groups at the same rate that individuals from those

groups applied for admission. Grutter, 539 U.S. at 385

(Rehnquist, C.J., dissenting) (noting that “in 1995,

when 9.7% of the applicant pool was AfricanAmerican, 9.4% of the admitted class was AfricanAmerican,” while in “2000, only 7.5% of the applicant

pool was African-American, and 7.3% of the admitted

class was African-American.”). This “striking”

correlation “suggests a formula for admission” under

which the “proportion of each group admitted should

be the same as the proportion of that group in the

applicant pool.” Id. at 385. This smacks of racial

quotas, not the pursuit of a “critical mass” of

individuals with diverse backgrounds and viewpoints.

Harvard’s annual admissions exhibit a similarly

striking consistency: in a decade’s time, Harvard

admitted African Americans at a rate of between 10

and 12 percent of the incoming class, and Hispanics at

a rate of eight to 12 percent. Cert Pet. at 10. These

remarkably stable numbers do not suggest an

admissions policy in which, “a university may

consider race or ethnicity only as a ‘plus’ in a

particular applicant’s file,” Grutter, 539 U.S. at 334,

(quoting Bakke, 438 U.S. at 317 (Powell, J.), but

rather an effort “to assure within its student body

some specified percentage of a particular group

20

merely because of its race or ethnic origin.” Id. at 329

(quoting Bakke, 438 U.S. at 307 (Powell, J.). See also

ANTHONY KRONMAN, THE ASSAULT ON AMERICAN

EXCELLENCE 134 (2019) (“That the percentage of black

students and other minorities admitted to the nation’s

top colleges and graduate schools remains so steady

year after year strongly suggests that something like

a quota system is still at work, although it is disguised

by a myriad of individual judgments and officially

disclaimed by deans and college presidents.”).

Yet as they go about obsessively assembling

student bodies with a prescribed racial makeup,

surreptitiously in pursuit of the goal of remedying the

history of societal discrimination—precisely the

rationale that this Court has rejected as

unconstitutional—schools continue to dress their

admission policies in the costume of the diversity

rationale. For they understand that “relying on

diversity rather than discrimination places

affirmative action programs on more solid legal and

perhaps political grounds.” Michael Selmi, The Facts

of Affirmative Action, 85 VA. L. REV. 697, 733 (1999);

see also Owen Fiss, The Accumulation of

Disadvantages, 106 CAL. L. REV. 1945, 1964 (2018)

(The “diversity rationale saved the day, at least as a

strategic matter, but it left the policy of preferential

treatment without a justification that has the gravity

required to offset the sense of unfairness it gives to

many.”).

Today, the diversity rationale is even further out

of step with what affirmative action proponents

promote as justification for affirmative action policies.

With the rise of critical race theory and the academic

21

focus on “systemic racism” as a driver of the

differences in outcomes among racial groups and

subgroups, the diversity rationale has undergone

sustained critique by proponents of race-conscious

admissions. For example, one scholar has recently

pointed out that “the diversity rationale” has caused

“equal protection jurisprudence” to “stake[] out a clear

position on when ‘discrimination’ is permissible—not

to

remediate

past

discrimination

against

marginalized groups but to create a multicultural

environment for the benefit of white people.” Robin

Walker Sterling, Through a Glass Darkly: Systemic

Racism, Affirmative Action, and Disproportionate

Minority Contact, 120 MICH. L. REV. 451, 501 (2021).

The short of it is this: the diversity rationale

appears to be nothing but a convenient fig leaf

advanced by affirmative action proponents to cover

their genuine aim: pursuing some vision of racial

justice. The fact that “the defenders of the precedent

do not attempt to defend its actual reasoning” weighs

strongly in favor of overruling Bakke and Grutter’s

endorsement of race-based admissions and restoring

the principle of equal protection that our ancestors

fought and bled to enshrine in our fundamental law.

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

Council 31, 138 S.Ct. 2448, 2481 n.25 (2018) (cleaned

up).

Grutter itself provides further support for

overruling the decision. There, the Court predicted

that “25 years from now, the use of racial preferences

will no longer be necessary to further the interest

approved today.” Grutter, 539 U.S. at 343. This makes

clear that the Court was not intending to establish a

22

lasting constitutional norm. Indeed, Grutter held that

“race-conscious admissions policies must be limited in

time,” and that making such policies permanent

would actually violate the Constitution because it

“would offend th[e] fundamental equal protection

principle.” Id. at 342. Respondents, however, have no

plans to wind down their affirmative action policies,

or indeed, even to regularly revisit whether their

policies are still needed or whether their objectives

could be achieved in race-neutral ways. Although we

have not quite reached Grutter’s sell-by date, enough

time has passed to make clear that the ill-conceived

experiment started by Justice Powell and continued

by the Grutter majority should be shut down once and

for all.

II.

Fostering “Diversity” By Focusing on

Race Has Profoundly Negative

Consequences.

As discussed above, Bakke and Grutter’s

endorsement of race-based admissions policies, based

on the “diversity rationale,” is demonstrably and

grievously wrong. That arguably should suffice to

justify their repudiation. See Gamble v. United States,

587 U.S.---, 139 S.Ct. 1960, 1984 (2019) (Thomas, J.,

concurring) (“[I]f the Court encounters a decision that

is demonstrably erroneous … the Court should correct

the error, regardless of whether other factors support

overruling the precedent.”); see also Charles J.

Cooper, Stare Decisis: Precedent & Principle in

Constitutional Adjudication, 73 CORNELL L. REV. 401,

401-08 (1988); Charles J. Cooper, A Note on Justice

Marshall & Stare Decisis, 1992 PUB. INT. L. REV. 95,

97-100. Ultimately, however, the debate over the

23

correct approach to stare decisis is beside the point,

because in addition being demonstrably erroneous,

Bakke and Grutter’s endorsement of race-based

admission policies has led to “significant negative …

real-world consequences,” Ramos, 140 S.Ct. at 1415,

that justify cashiering those precedents on any view.

We focus on four of them.

A. Race-Based Diversity Policies

Instrumentalize Racial Minorities for the

Purported Benefit of Other Students.

Because the diversity rationale depends on the

premise that a student’s racial or ethnic background

“may bring … experiences, outlooks, and ideas that

enrich the training of … [the] student body and better

equip … graduates” for their future careers, Bakke,

438 U.S. at 314 (Powell, J.), it effectively

instrumentalizes minority students for the benefit of

others. This approach generalizes and stereotypes

minority students rather than treating them as

individuals. Instead of evaluating a minority

student’s classroom contributions on the merits, the

approach simply assumes that minority students will

contribute to the university community by virtue of

their immutable characteristics alone. See James

McWhorter, It’s Time to End Race-Based Affirmative

Action, N.Y. TIMES (Jan. 28, 2022) (“I shudder at the

thought of someone on a college admissions

committee … reading [my daughters’] dossiers and

finding their being biracial … the most interesting

thing about them. Or even, frankly, interesting at

all.”).

That assumption is fundamentally wrong because

it instrumentalizes human beings. And its effects are

24

pernicious. Students who believe they may have been

selected for admission because of their race, for

example, are likely to draw one or both of two

conclusions. First, these students may feel a

responsibility to speak or act for their race, as if the

only perspective they are expected to provide is one

premised on their racial identity. Or second, these

students may come to believe that “their success is

guaranteed simply by being who they are,” because

“minority students make an essential contribution to

the educational work of their school merely on account

of their racial or ethnic identities.” Supra, KRONMAN

at 136. Both views are harmful. The first places

significant pressure on minority students and limits

their expected contributions to academic discourse in

a way that other students are not limited. The second

“encourages students to think first about what they

contribute, not what they stand to gain” from the

experience of studying at a university—obviously not

the right frame of mind for a college freshman about

to be challenged by the rigors of higher education. Id.

Affirmative action proponents, too, have

increasingly criticized the diversity rationale for the

way that it instrumentalizes minority students. They

complain that diversity has become a “utilitarian

paradigm,” in which “diversity and its egalitarian

meaning are not goods in themselves, but instruments

serving greater goods of professional success and

economic prosperity.” This “utilitarian paradigm” of

diversity “risks impeding the long-term struggle for

racial justice, making us blind and numb to the

ongoing racial stratification.” Ofra Bloch, Diversity

Gone Wrong: A Historical Inquiry Into the Evolving

Meaning of Diversity from Bakke to Fischer, 20 J.

25

CONST. L. 1145, 1203 (2018). Others point out that

“diversity brings minorities into predominantly white

institutions primarily for white benefit and not

necessarily for the benefit of minorities themselves.”

Osamudia R. James, White Like Me: The Negative

Impact of the Diversity Rationale on White Identity

Formation, 89 N.Y.U. L. REV. 425, 451 (2014). Indeed,

“diversity is heralded primarily to benefit white

institutions so that white institutions can be

successfully promoted as diverse, thus enhancing

their institutional reputation, social capital, and

cultural capital.” Id. Or put differently: “Students of

color go to college for the same reasons that white

students do: to get the education and the institutional

validations to advance in a society that puts

tremendous value on higher education. They are not

there to provide their white peers an enriching

experience.” Alana Massey, Transforming White

People Is Not the Job of Minority Students, PACIFIC

STANDARD (Apr. 10, 2015), https://bit.ly/38Axt18.

B. Race-Based Diversity Policies Stigmatize

Racial Minorities By Calling Into

Question Whether They Were Admitted

On Their Merits.

Race-based diversity policies further harm the

minority students they purport to help by calling into

question whether those students were admitted on

their merits and “deserve” to be at the institutions

where they enroll. Many Justices have recognized the

stigma affirmative action causes, and minority

students report feeling it. It could not be otherwise,

when Respondents claim that they cannot achieve a

26

diverse student body without making a substantial

number of admissions decisions based on race.

Justice Brennan’s opinion for himself and Justices

White, Marshall, and Blackman is one of the first to

identify the potential stigmatizing effect of

affirmative action. Justice Brennan wrote that

“[s]tate programs designed ostensibly to ameliorate

the effects of past racial discrimination obviously

create the same hazard of stigma” that a statute based

on “paternalistic stereotyping” creates, since

affirmative action policies “may promote racial

separatism and reinforce the views of those who

believe that members of racial minorities are

inherently incapable of succeeding on their own.”

Bakke, at 438 U.S. at 360 (Brennan, J., concurring).

Other justices have discussed the risk of stigma,

too, both in the context of affirmative action and in the

context of other race-based classifications intended to

disburse

benefits.

Justice

Powell

himself

acknowledged in Bakke that “preferential programs

may only reinforce common stereotypes holding that

certain groups are unable to achieve success without

special protection based on a factor having no

relationship to individual worth.” Id. at 298 (Powell,

J.). Justice O’Connor’s plurality opinion in City of

Richmond v. J.A. Croson Co. noted that

“[c]lassifications based on race carry a danger of

stigmatic harm” and “may in fact promote notions of

racial inferiority and lead to a politics of racial

hostility.” 488 U.S. 469, 493 (1989) (plurality). And

Justice Thomas has written repeatedly about this

problem, explaining that “[s]o-called ‘benign’

discrimination teaches many that because of chronic

27

and apparently immutable handicaps, minorities

cannot compete with them without their patronizing

indulgence,” and “stamp[s] minorities with a badge of

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

U.S. 200, 241 (1995) (Thomas, J., concurring); accord

Grutter, 539 U.S. at 373 (Thomas, J., concurring in

part and dissenting in part) (“The majority of blacks

are admitted to the Law School because of

discrimination, and because of this policy all are

tarred as undeserving.”); see also Fullilove v.

Klutznick, 448 U.S. 448, 545, 553 (1980) (Stevens, J.,

dissenting) (“[A] statute of this kind inevitably is

perceived by many as resting on an assumption that

those who are granted this special preference are less

qualified in some respect that is identified purely by

their race,” and this is true “when benefits are

distributed as well as when burdens are imposed.”)

(emphasis added).

A 2005 survey of minority students at Harvard

Law School confirms these concerns. The students

questioned in the survey reported in significant

numbers that they have “experienced … stigma from

classmates, professors, in job interviews, etc. based on

someone else’s assumption that [they] benefitted from

affirmative action[.]” Ashley M. Hibbett, The Enigma

of the Stigma: A Case Study on the Validity of the

Stigma Arguments Made in Opposition to Affirmative

Action Programs in Higher Education, 21 HARV.

BLACKLETTER L.J. 75, 90 (2005) (Thirteen of 20

participants answered “yes” to the question). In the

words of one student,

Yes, white students in general assume that

black students have not performed as well [as]

28

they have on the LSAT. And they assume that

the LSAT is the objective measure of merit for

admission to HLS. And because they believe

that black students have not performed as

well as they have, they intuitively believe that

black students have

benefited from

affirmative action.

Id. at 101. See also Rebecca E.J. Cadenhead, The

Truth About Imposter Syndrome, HARVARD MAGAZINE

(2022) (“[M]y blackness … made it all the more

necessary … to convince others I was exceptional.”).

It is no mystery that race-based admissions

programs risk stigmatizing racial minorities

presumed to have benefitted from them. Respondents’

whole justification for their policy is that their racebased preferences are necessary to admit a large

number of minority students who would not be

admitted based on race-neutral criteria alone. The

University of North Carolina says it has “modeled the

effects of five different types of race-neutral

alternatives” but that each “would lead to a decline in

racial diversity, a decline in academic quality, or both.”

UNC BIO 10. Harvard says that despite “several

decades” devoted to “developing whole-person

admissions programs,” it cannot yield a program “that

is both diverse and excellent” without making racebased admissions decisions. Harvard BIO 36. Of

course, Petitioner has amply demonstrated that raceneutral alternatives exist, including alternatives that

would make Respondents’ enrolling classes both more

diverse and better qualified. SFFA Pet., No. 21-707 at

29; SFFA Pet. No. 20-1199 at 17-19. But in light of

Respondents’ public position that substantial

29

numbers of minority students would not be admitted

without preferences granted solely on account of their

race, the stigma that their admissions stereotypes

create for minority students is no surprise.

C. Race-Based Diversity Policies Harm

Racial Minorities’ Educational

Achievement.

Race-based diversity policies also perversely harm

the educational achievements of the very minority

students they profess to benefit.

Affirmative action programs, taken together, yield

a systemic “mismatch” between minority students and

schools, placing minority students in academic

environments too demanding for their existing skills

and experiences. As Justice Thomas has explained,

schools with affirmative action programs “tantalize[ ]

unprepared students with the promise of a[n elite]

degree and all of the opportunities that it offers. These

overmatched students take the bait, only to find that

they cannot succeed in the cauldron of competition.”

Grutter, 539 U.S. at 372 (Thomas, J., dissenting). The

problem is not that minority students lack the talent

or ability to succeed in higher education. The problem

is that, by reducing the qualification thresholds

required for certain students to be admitted, minority

students choose to attend universities at which they

rank near the bottom among their peers in terms of

preparation rather than institutions where they rank

near the middle or top and are just as academically

prepared as their peers.

For example, a minority “student who would

flourish at, say, Wake Forest or the University of

30

Richmond, instead finds herself at Duke” “where she

has weaker academic preparation than nearly all of

her classmates,” and “where the professors are not

teaching at a pace designed for her—they are teaching

to the ‘middle’ of the class, introducing terms and

concepts at a speed that is challenging even to the

best-prepared student.” RICHARD SANDER AND STUART

TAYLOR, JR., MISMATCH: HOW AFFIRMATIVE ACTION

HURTS STUDENTS IT’S INTENDED TO HELP, AND WHY

UNIVERSITIES WON’T ADMIT IT, at 4 (2012). Because

this student is “mismatched” at Duke, she will likely

underperform her capabilities—struggling to keep up,

falling to the bottom of the class, and perhaps selfselecting out of more difficult majors (like science and

engineering) or dropping out altogether.

Mismatch largely explains why, even though

blacks are more likely to enter college than

whites with similar backgrounds, they will

usually get much lower grades, rank toward

the bottom of the class, and far more often

drop out; why there are so few blacks and

Hispanics with science and engineering

degrees or with doctorates in any field; and

why black law graduates fail bar exams at

four times the white rate.

Id. at 4. See Peter Arcidiacono, et al., University

Differences in the Graduation of Minorities in STEM

Fields: Evidence from California, AM. ECON. REV.

(Mar. 2016) 559-60 (concluding that minority students

mismatched at UC campuses when racial preferences

were in effect and then exhibited lower grades and

graduation rates in STEM fields).

31

Data from California confirm the mismatch theory.

When California banned racial preferences in

admissions in 1998 with Proposition 209, UCLA was

forced to abandon the large racial preferences it had

adopted. Initially, this caused a steep drop in the

number of black and Hispanic students admitted to

UCLA. Yet over time, black and Hispanic

performance improved at the university. The fouryear graduation rate among black students doubled

after Proposition 209; strong black and Hispanic

students accepted their UCLA offers at much higher

rates (suggesting they valued being enrolled at a

school where their race had not been a factor in their

admission); and some minority students were

admitted to less elite schools instead of UCLA, but

were able to gain academic experience and later

transfer to and graduate from UCLA. Id. at 8-9.

Ultimately, “[t]he total number of black and Hispanic

students receiving bachelor’s degrees was the same for

the five classes after Prop 209 as for the five classes

before.” Id. at 8 (emphasis in original). While the

numbers of minority students admitted went down in

the years after Prop 209, the graduation rates and

overall success of minority students soared.

The University of California system of colleges

experienced similar successes after Proposition 209,

when many schools in the UC system adopted raceneutral criteria to buoy minority admission numbers.

Despite these efforts, minority admission numbers

still decreased. But “[m]inority graduation rates [in

the UC system] rose rapidly in the years after Prop

209, and on-time (four-year) graduation rates rose

even faster.” Id. at 146. During the six years before

Proposition 209, the overall four-year graduate rate of

32

black UC students was 22 percent; during the six

years after Prop 209, it was 38 percent. Despite the

decline in black admissions, black graduation rates

rose dramatically. Id.

Students of all races are better served by enrolling at

institutions that match their academic preparation,

where they will be more likely to succeed and excel.

Affirmative action policies work against this matching,

and in the process, they harm minority students who

would otherwise succeed.

D. Race-Based Diversity Policies

Disproportionately Benefit Wealthy

Members of Favored Races.

Race-based

diversity

policies

also

disproportionately benefit members of favored races

who least need special treatment: the wealthy.

Elite universities already privilege wealthy

enrollees at large rates. Studies show that

approximately 3% of students at Harvard come from

the lowest income quintile of families, while fully 70%

of Harvard students come from just the top 1% of the

family income distribution. Raj Chetty, et al., Mobility

Report

Cards:

The

Role

of

Colleges

in

Intergenerational Mobility, at 14 (July 2017),

https://bit.ly/3vSdFyf. Affirmative action policies

layer racial preferences on top of wealth preferences,

with the result being that even among minority

students, wealth is greatly overrepresented. At

Harvard, 71% percent of admitted black and Latino

students come from wealthy backgrounds—out of

proportion with the 32% of individuals in these

demographics who would qualify as wealthy in the

33

general population. Richard Kahlenberg, A Better

Way to Diversity Harvard, SLATE (June 22, 2018). See

also Peter Arcidiacono, et al., What the Students for

Fair Admissions Cases Reveal About Racial

Preferences, J. OF ECON. LIT. (Apr. 15, 2022)

(concluding that Harvard and UNC “provide larger

racial preferences to under-represented minorities

from higher socioeconomic backgrounds”). Other

commentators have noticed the sizeable shift in the

number of black students from immigrant

backgrounds at elite universities, rather than

students from more economically disadvantaged

communities of native-born blacks. Supra Liu, at

1982-83.

Accordingly, race-based affirmative action policies

have disproportionately benefitted wealthy minorities.

That result diminishes the genuine diversity of

experiences and viewpoints that underlies Bakke and

Grutter’s “diversity rationale.” It also shows that racebased admissions programs are failing to assist those

minorities who are suffering most from the “product

of past discrimination.” Bakke, 438 U.S. at 369

(Brennan, J., concurring in part). On either

justification, race-based admissions have failed to

achieve their aims. The time has come for the Court

to call a halt to this failed, unconstitutional

experiment in allowing avowed racial discrimination

in higher education.

CONCLUSION

For the foregoing reasons, amicus curiae

respectfully urge this Court to reverse the decisions

below.

34

May 9, 2022

Respectfully submitted,

David H. Thompson

Counsel of Record

Peter A. Patterson

Brian W. Barnes

John D. Ohlendorf

Megan M. Wold

COOPER & KIRK, PLLC

1523 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 220-9600

dthompson@cooperkirk.com