Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College
Supreme Court briefJul 19, 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 AMICUS CURIAE DAVID BOYLE IN
SUPPORT OF RESPONDENTS
_________________
David Boyle
Counsel of Record
P.O. Box 15143
Long Beach, CA 90815
dbo@boyleslaw.org
(734) 904-6132
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES…..……………………….iv
AMICUS CURIAE STATEMENT OF INTEREST…1
SUMMARY OF ARGUMENT.....................................3
ARGUMENT……………………………………………...5
I.
THE COURT MUST DO BETTER THAN
ITS DOBBS OPINION (OR DISSENT),
LEST IT LOSE PUBLIC CREDIBILITY….…5
II.
JUSTICE KETANJI BROWN JACKSON
WAS CHOSEN BY OPEN RACIAL/GENDER
SELECTION, SO THE COURT’S MEMBERS
MAY BE OBLIGED TO OPPOSE HER SEAT
ON THE COURT IF THEY TRULY OPPOSE
RACE-BASED AFFIRMATIVE ACTION…..11
III. SUPPORTING ISRAEL, A.K.A.
“AFFIRMATIVE ACTION FOR JEWS”,
MAKES IT AWKWARD TO SAY
AFFIRMATIVE ACTION IS EVIL AND
MUST BE BANNED……………………….….13
IV. THE COURT SHOULD NOT ABOLISH
AFFIRMATIVE ACTION BEFORE
ALUMNI-CHILD COLLEGE-ADMISSION
PRIVILEGES—THEMSELVES A FORM OF
AFFIRMATIVE ACTION—HAVE BEEN
ABOLISHED…………………………………...15
ii
A. The Court Might Consider Sua Sponte
Abolishing Alumni-Child (or Similar)
Admissions Advantages ……………………..17
B. Why Didn’t Petitioner Sue Respondents Over
Alumni-Child Admission Advantages?……17
C. The Court’s Members Should Be Transparent
About Any Admissions Privileges Their
Families Have Received or Will Receive,
Including Alumni-Child, Donor, or Other
Privileges……………………………………….18
D. Just Because Some Alumni Children Are
Also from Underrepresented Minorities,
That Does Not Justify Keeping Alumni-Child
Privileges….…..............................................18
E. Underrepresented Minorities Should Be
Able to Opt Out of Preferential Treatment in
Admissions, if They Feel Stigmatized by
It…………………………………………………19
F. Giving Admissions Privileges to Children of
Donors Is Reminiscent of Prostitution/
Bribery………………………………………….20
G. Petitioner’s Simulated Alternative, Ending
Privilege Preferences, Has Good Points, but
Does Not Logically Imply Affirmative Action
Must End… and It Also Massively, Wrongly
Hurts Underrepresented-Minority
Applicants……………………………………...21
iii
V.
AFFIRMATIVE ACTION DOES NOT
LOGICALLY REQUIRE BIAS AGAINST
ASIAN AMERICANS OR OTHER
GROUPS………………………………………..23
VI.
TWO ASIAN-AMERICAN STUDENTS
SUPPORTING AFFIRMATIVE ACTION…26
VII. AFFIRMATIVE ACTION SHOULD
SURVIVE FOR AT LEAST THE “25YEAR GRACE PERIOD” GRANTED IN
GRUTTER, AND POSSIBLY LONGER…..30
VIII. GRUTTER IS NOT PLESSY, ESPECIALLY
GIVEN BROWN, COLIN POWELL’S
EMBRACE OF AFFIRMATIVE ACTION,
AND MARTIN LUTHER KING’S
ADVOCATING ACTUAL QUOTAS FOR
UNDERREPRESENTED MINORITIES….32
(ANTECONCLUSION)………………………….…..36
CONCLUSION……………………………………….38
iv
TABLE OF AUTHORITIES
CASES
Brown v. Bd. of Educ., 347 U.S. 483
(1954)…………………………….2, 5, 32, 35, 36, 38
Dobbs v. Jackson Women’s Health Org., 597 U.S. ___
(2022)……………………………...3, 5, 6, 7, 8, 9, 10
Fisher v. University of Texas “I”, 570 U.S. 297
(2013)……………………………….……………1, 33
Fisher v. University of Texas “II”, 579 U.S. 365
(2016)…………………………………………………1
Grutter v. Bollinger, 539 U.S. 306 (2003)……..passim
Planned Parenthood v. Casey, 505 U.S. 833
(1992)…………………………………………………6
Plessy v. Ferguson, 163 U.S. 537
(1896)……………………………….4, 32, 33, 35, 36
Roe v. Wade, 410 U.S. 113
(1973)………………………..…………………….6, 9
Schuette v. Coalition to Defend Affirmative Action,
572 U.S. 291 (2014)………………………1, 2, 5, 36
CONSTITUTION
U.S. Const. (1789)…………………………………….….9
v
RULES
S. Ct. R. 37………………………………..………….1 n.1
OTHER AUTHORITIES
(The Internet links below were last visited July 18,
2022.)
Emmanuel Akinwotu, Sierra Leone backs bill to
legalise abortion and end colonial-era law, July
6, 2022, 12:57 p.m., The Guardian, https://www.
theguardian.com/global-development/2022/jul/
06/sierra-leone-backs-bill-to-legalise-abortionand-end-colonial-era-law………………………9-10
Geoff Bennett, Shannon Pettypiece & Monica Alba,
Trump vows to choose a woman to fill Ginsburg’s
Supreme Court seat, NBC News, Sept. 19, 2020,
10:33 a.m. (updated Sept. 19, 2020, 5:05 p.m.),
https://www.nbcnews.com/politics/supreme-court
/amy-coney-barrett-emerging-front-runner-fillginsburg-s-supreme-n1240547………………11-12
Associated Press in Jerusalem, Israel eases abortion
regulations in response to ‘sad’ Roe v Wade
ruling, The Guardian, June 27, 2022, 8:07 p.m.,
https://www.theguardian.com/world/2022/jun/27/
israel-eases-abortion-regulations-in-response-tosad-roe-v-wade-ruling……………………………...9
Br. of Lt. Gen. Julius W. Becton, Jr., as Amici Curiae
in Supp. of Resp’ts in Fisher v. University of
Texas, 570 U.S. 297 (2013), available at https://
vi
www.scotusblog.com/wp-content/uploads/2016/
08/11-345-respondent-amicus-becton.pdf……...33
Br. of Amicus Curiae David Boyle in Supp. of
Resp’ts in Fisher v. U. of Tex. “I”, 570 U.S. 297
(2013), available at https://utexas.app.box.com/
s/qoru87f0jmghdwkgzaoe2lw9eepx6ubh………..1
Br. of Amicus Curiae David Boyle in Supp. of
Resp’ts in Fisher v. U. of Tex. “II”, 579 U.S. 365
(2016), available at https://utexas.app.box.com/
s/9cqsr07xlg4r4rfssjuqb0muluu6plq7...…………1
Br. of Amicus Curiae David Boyle in Supp. of Pet’r
in Schuette v. Coal. to Defend Affirmative Action,
572 U.S. 291 (2014), available at http://sblog.s3.
amazonaws.com/wp-content/uploads/2013/07/12682_pet_amcu_db.authcheckdam.pdf..................1
Br. of Amicus Curiae David Boyle in Supp. of Pet’rs
in Dobbs v. Jackson Women’s Health Org., 597
U.S. ___ (2022), available at https://www.
supremecourt.gov/DocketPDF/19/19-1392/
184456/20210720221629952_19-1392_tsac_
DavidBoyle.pdf…………………………………...6, 7
Br. Amicus Curiae of Professor Fiona A. Harrison in
Supp. of Neither Party in 20-1199…………..….18
Br. for Ann M. Killenbeck et al. as Amici Curiae in
Supp. of Neither Party in 20-1199 & 21-707….32
Br. for Pet’r in 20-1199 &
21-707……………………..21-22, 23, 24, 31, 33, 37
vii
Benjamin Chang, I’m an Asian American Harvard
student. The anti-affirmative-action case does
not speak for me, Wash. Post, Feb. 4, 2022, 12:58
p.m., https://www.washingtonpost.com/opinions/
2022/02/04/harvard-asian-american-studentbelieves-in-affirmative-action/………………26-28
Aimee Cho & NBC Washington Staff, Georgetown
Administrator at Center of Tweet Controversy
Resigns, NBC Wash., June 6, 2022, updated 6:24
p.m., https://www.nbcwashington.com/news/
local/georgetown-administrator-at-center-oftweet-controversy-resigns/3070566/……………15
Zachariah Chou, My race may have played a factor in
my college rejections, but I support affirmative
action, Yahoo! News (originally in USA Today),
Feb. 15, 2022, https://www.yahoo.com/news/racemay-played-factor-college-130024410.
html……………………………………………...28-30
E pluribus unum, traditional U.S. motto (1700’s)…20
Brent D. Griffiths, Reagan’s White House made sure
the president stuck by his promise to name a
woman to the Supreme Court — they knew the
politics would help too, Bus. Insider, Jan. 27,
2022, 2:52 p.m., https://www.businessinsider.
com/supreme-court-women-history-reaganbiden-nominees-2022-1…………………………..11
Harv. J. App. in 20-1199………………………………23
Eoin Higgins, Yale Legacy Admission Brett
Kavanaugh Is Now the Swing Vote on
viii
Affirmative Action at Universities, The Intercept,
Oct. 8, 2018, 1:36 p.m., https://theintercept.com/
2018/10/08/brett-kavanaugh-affirmative-actionat-universities/…………………………………36-37
Rabbi David Hoffman, Zionism is not a ‘settlercolonial undertaking’, The Mail & Guardian
(South Africa), June 28, 2005, available under
“Zionism Commentary” at http://www.
zionismontheweb.org/Zionism_is_not_a_settlercolonial_undertaking.htm………………………..14
Sahil Kapur, Biden pledged to put a black woman on
the Supreme Court. Here’s what he might have to
do., NBC News, May 6, 2020, 6:12 a.m., https://
www.nbcnews.com/politics/2020-election/
problem-biden-s-pledge-black-woman-justicen1200826……………………………………………11
Leges Henrici Primi (c. 1115)………………………..7-8
Dr. Mishal Reja, Trump’s ‘Chinese Virus’ tweet
helped lead to rise in racist anti-Asian Twitter
content: Study, ABC News, Mar. 18, 2021, 2:58
p.m., https://abcnews.go.com/Health/trumpschinese-virus-tweet-helped-lead-rise-racist/story
?id=76530148………………………………………30
Ruthann Robson, Daily Read: MLK and Affirmative
Action, Const. L. Prof. Blog, Jan. 15, 2018,
https://lawprofessors.typepad.com/conlaw/2018/
01/daily-read-mlk-and-affirmative-action.html
(quoting David B. Oppenheimer, Abstract of Dr.
King’s Dream of Affirmative Action, written Aug.
ix
7, 2017, available at https://papers.ssrn.com/
sol3/papers.cfm?abstract_id=3015018…….34-35
Serpico (Paramount Pictures 1973)………………….20
Sophocles, works in general…………………………..10
Carla Spivack, To “Bring Down the Flowers”: The
Cultural Context of Abortion Law in Early
Modern England, 14 Wm. & Mary J. Women &
L. 107 (2007), available at https://scholarship.
law.wm.edu/cgi/viewcontent.cgi?article=1042&
context=wmjowl…………………...........................8
Bruce Springsteen, Born to Run, on Born to Run
(Columbia Records 1975)………………………….9
Tamar Sternthal, From ‘Ethnic Cleansing’ to
Casualty Count, Prof. Qumsiyeh Errs, CAMERA,
Aug. 20, 2004, https://www.camera.org/article/
from-ethnic-cleansing-to-casualty-count-profqumsiyeh-errs/…………………………………13-14
Sakshi Venkatraman, Black, Asian law students call
for professor to be suspended over racist remarks,
NBC News, April 20, 2022, 11:22 a.m., https://
www.nbcnews.com/news/asian-america/blackasian-law-students-call-professor-suspendedoffensive-remarks-rcna25187……………………30
Wikipedia, Concerned Alumni of Princeton, https://
en.wikipedia.org/wiki/Concerned_Alumni_of_
Princeton (as of Mar. 14, 2022, 5:50 GMT)……37
1
AMICUS CURIAE STATEMENT OF INTEREST
The present amicus curiae, David Boyle
(hereinafter, “Amicus”),1 has submitted briefs in
various affirmative-action cases at the Court,
recommending a thoughtful and maybe even
“moderate” approach: e.g., in Fisher v. University of
Texas “I”, 570 U.S. 297 (2013) (Amicus’ brief
available at https://utexas.app.box.com/s/qoru87
f0jmghdwkgzaoe2lw9eepx6ubh), and “Fisher II”, 579
U.S. 365 (2016) (brief available at https://utexas.app.
box.com/s/9cqsr07xlg4r4rfssjuqb0muluu6plq7),
supporting the retaining of Grutter v. Bollinger, 539
U.S. 306 (2003); but in Schuette v. Coalition to
Defend Affirmative Action, 572 U.S. 291 (2014),
supporting States’ right to end affirmative-action
programs (brief available at http://sblog.s3.
amazonaws.com/wp-content/uploads/2013/07/12682_pet_amcu_db.authcheckdam.pdf).
Thus, Amicus would not mind thoughtfulness or
due moderation by the Court in the instant case,
especially since the Court itself has been peopled by
affirmative-action recipients: e.g., Justice Amy
Coney Barrett, chosen by President Donald Trump
because she is a woman; Justice Ketanji Brown
Jackson, chosen by President Joe Biden because she
is an African-American woman.
Amicus notes that presently, Petitioner wants to
destroy affirmative action, while not simultaneously
suing for the destruction of, e.g., alumni-child
admission advantages which are older than
1 No party or its counsel wrote or helped write this brief, or
gave money for the brief, see S. Ct. R. 37. Blanket permission to
write briefs is filed with the Court.
2
affirmative action and reward the alreadyprivileged. This disparity seems profoundly wrong.
One would think that the latter, grotesquelyunfair “privilege for the already-privileged” should
be eliminated before there’s any thought of doing
away with affirmative action, either race-based or
gender-based. (Gender-based affirmative action
could be useful where women are underrepresented
—as the Court has historically been.)
But the Court’s allowing affirmative action to
survive wouldn’t mean abandoning skepticism about
how Harvard College (“Harvard”), the University of
North Carolina (“UNC”), or other institutions,
administrate affirmative action. Colleges can be
profoundly evasive, even irresponsible (hopefully not
deceitful?), about their admissions programs.
So, if the Court can insist on a consistently higher
standard of responsibility, which may include
mandating, e.g.: colleges must produce prospective
timelines for ending affirmative action; more serious
inquiry into race-neutral alternatives; avoiding
stereotyping Asian Americans; etc., affirmative
action may be worth saving for those States and
colleges who wish to keep using it (as Schuette,
supra at 1, allows) to desegregate and diversify their
student bodies, so as not to “deprive [students] of
some of the benefits they would receive in a racial[ly]
integrated school system”, Brown v. Bd. of Educ.,
347 U.S. 483, 494 (1954) (latter brackets in the
original) (citation, footnote, internal quotation marks
omitted).
Not everyone is hopeful, though, that the Court
can be unbiased in “culture war” issues; on that
3
head, Amicus will briefly, following the Summary of
Argument, discuss the deleterious impact of the
Dobbs v. Jackson Women’s Health Organization, 597
U.S. ___ (2022) decision upon the Court’s image…
SUMMARY OF ARGUMENT
The Court, after its controversial decision in
Dobbs, supra, may want to be especially careful to
seem unbiased and procedurally fair towards all the
inhabitants of America’s great Republic.
Since Justice Jackson was chosen by President
Biden for being a black woman, the Court may be
obliged to ask for her removal from the Court, if it
declares that all race-based affirmative action is
illegal.
Because Israel arguably practices affirmative
action for Jews, and most Americans support Israel,
it is strange to argue affirmative action is inherently
evil.
The Court should make sure alumni-child
admissions preferences, a.k.a. “affirmative action for
the advantaged”, and similar preferences (donor
preferences—which resemble bribery/prostitution—;
faculty/staff; etc.) are past history before outlawing
affirmative action. The Court should even consider
sua sponte banning such “privilege preferences”; and
Petitioner should have sued to ban them, to show it
really cared about ending unfair admissions.
The Court’s Members should be publicly
transparent about their own families’ benefit from
such privileges.
4
The fact that some underrepresented minorities
are now alumnae/i, should not save “legacy”
preferences from extinction. Too, minority applicants
should be able to opt out of bonuses for minority
status, if desired.
While Petitioners’ simulations modeling an end to
preferences-for-the-privileged do some good, they
may massively reduce the number of
underrepresented-minority students, and also
commit the logical fallacy that eliminating “privilege
preferences” necessitates eliminating affirmative
action as well. (Inter alia, the seats freed up by
ending privilege preferences may give more room for
affirmative-action recipients.)
Similarly, it is fallacious to state that ending
prejudice/stereotypes against Asian Americans
necessitates ending affirmative action. However, as
affirmative action is phased out gradually,
preferences for underrepresented minorities may
lessen, and this, plus ending privilege preferences,
may offer more seats for Asian Americans.
Two Asian-American students supporting
affirmative action offer their illuminating views.
Affirmative action should last at least until the
2028 date set in Grutter, 539 U.S. at 343, and maybe
longer, given the white-supremacy and COVID-19
crises, and the corrosive persistence of “legacy”
bonuses.
Petitioner’s comparison of Grutter to Plessy v.
Ferguson, 163 U.S. 537 (1896), is ridiculous,
especially given the desegregation imperative of
5
Brown, supra at 2; Colin Powell’s support of Grutter;
and Martin Luther King’s embrace of actual quotas
for maltreated minorities.
Finally, following Schuette, which gives States the
right to allow affirmative action, the Court, which
has benefited from its own many affirmative-action
recipients, should mend affirmative action, keep it
responsible to the People and the law, not
immediately end it.
ARGUMENT
I. THE COURT MUST DO BETTER THAN
ITS DOBBS OPINION (OR DISSENT),
LEST IT LOSE PUBLIC CREDIBILITY
After reading the Court’s decision in Dobbs,
Amicus felt like quipping, “Enjoy it while it lasts.”
How that Opinion is going to stand the test of
history, and future Courts, is questionable
Indeed, Dobbs sets bad precedent, as the Chief
Justice noted in his concurrence-in-judgment, e.g.,
the Court’s “dramatic and consequential ruling is
unnecessary to decide the case before us.” Id. (slip
op., as for all Dobbs citations herein) at 2 (Roberts,
C.J.). And if the Court is sub rosa skewed, biased,
towards one side in America’s “Kulturkampf”, this
may taint not just the Court, but even the instant
affirmative-action case.
Ironically, if the Court had approved Mississippi’s
banning abortion at 15 weeks, but gone no further,
any number of ambitious State attorneys-general
would have slavered over the chance to have their
own States—and selves—be showcased at the Court,
and very soon, re abortion: but properly. E.g., both
6
their certiorari petitions and their merits briefs
would call for the overturn of Roe v. Wade, 410 U.S.
113 (1973), and Planned Parenthood v. Casey, 505
U.S. 833 (1992), from the start, instead of changing
horses in midstream.
But Mississippi, notably, didn’t do this, infecting
Dobbs forever with a feeling of procedural
impropriety. If Dobbs was the most important case
in half a century, and the Court couldn’t even dot all
the i’s and cross all the t’s, that is a problem.
The Opinion, which is arguably unprincipled if it
rewards Mississippi’s “bait and switch”, then dares
to insult the Chief Justice’s words as being
unprincipled: “The concurrence’s most fundamental
defect is its failure to offer any principled basis for
its approach.” Op. at 73 (Alito, J.). However, when
the majority itself, id. at 53, castigates “a uniform
viability rule that allowed the States less freedom to
regulate abortion than the majority of western
democracies enjoy”: if those latter nations are such
role models, how can the Opinion criticize Roberts
for upholding a 15-week limit close to the 12-some
weeks many of those “western democracies”, supra,
have? He even explicitly mentions the rough global
standard of a “12–week line”, Concurrence at 5.
Too, it is arguably false that “[t]he concurrence
would do exactly what it criticizes Roe for doing:
pulling ‘out of thin air’ a test that ‘[n]o party or
amicus asked the Court to adopt.’ Post, at 3.” Op. at
73. But: Amicus’ own July 2021 brief supporting
Petitioners in Dobbs (available at https://www.
supremecourt.gov/DocketPDF/19/19-1392/184456/
20210720221629952_19-1392_tsac_DavidBoyle.pdf)
7
said, e.g., “A 15-Week Abortion Limit May Seem
Highly Reasonable”, Br. at 9; “the Act [] allows the
entire first trimester … for people to decide about
abortion. 15 weeks is 105 days, which gives
couples/women over 100 days to decide. This is a
significant amount of time, making it harder to say
that the window for decision is an ‘undue burden’”,
id. at 12; “However, if Americans are convinced that
the Court is sensible and non-partisan, then
moderate measures like a 15-week ban might not
only thrive, but also serve as a bridge to bans at a
lower number of weeks, in the future, when
conditions for women have improved”, id. at 34; “If a
15-week limit is a workable ‘golden mean’ for now,
Amicus would not be surprised at all”, id. at 35.
So at least one amicus (Amicus) does mention,
supra, that (especially given Mississippi’s moving
the goalposts) a 15-week limit may seem reasonable
for now and show fairness to pregnant women; and
the Chief Justice may be justified in what he said.
The Dobbs Dissent has its own inaccuracies; e.g.,
the dissenters complain about the Opinion’s citing
sources going back to the 13th Century, “(the 13th!)”,
Dissent at 13 (Breyer, Sotomayor, Kagan, JJ.)—as if
venerability of precedent is a problem, worth an
alarmed exclamation point, id.?
Even worse, the Dissent didn’t notice it’s actually
the 12th Century; “Even before Bracton’s time,
English law imposed punishment for the killing of a
fetus. See Leges Henrici Primi 222-223 (L. J. Downer
ed., 1972) (imposing penalty for any abortion and
treating woman who aborted a ‘quick’ child ‘as if she
were a murderess’)”, Op. at 17 n.25, refers to the
8
Leges, from the 1100’s. See, e.g., Carla Spivack, To
“Bring Down the Flowers”: The Cultural Context of
Abortion Law in Early Modern England, 14 Wm. &
Mary J. Women & L. 107, 130 (2007), available at
https://scholarship.law.wm.edu/cgi/viewcontent cgi
?article=1042&context=wmjowl (footnote omitted).
Far worse than the Dissent’s time error, though,
the Opinion omits mentioning—as has been pointed
out to this Court before—that the “penalty” is merely
ecclesiastical. See Spivack, supra, at 130,
Mulier si partum suum ante xl dies
sponte perdiderit tribus annis peniteat,
si postquam animatus est, quasi
homicida vii annis peniteat. (A woman
shall do penance for three years if she
intentionally brings about the loss of
her embryo before forty days; if she
does this after it is quick, she shall do
penance for seven years as if she were a
murderess.)
Id. (footnote omitted, though it cites, id., to “LEGES
HENRICI PRIMI . . . at 222-223”, as the Opinion at
17 n.25 does) A church penalty of penance for
abortion is not a criminal or civil penalty; but the
dissenters didn’t call out the majority’s grosslymisleading omission about the penalty’s
ecclesiastical nature, an omission which calls the
legitimacy of the whole Opinion into question. Why
didn’t the Dissent notice this? Incomprehensible.
(One is almost tempted to quip, does the Court need
new Justices, or just new clerks?)
9
…One of the slightly-brighter spots in Dobbs is
Justice Brett Kavanaugh’s concurrence, which
admits that the life of the mother might actually
matter enough (!!!) to prevent a State from forcing
her to bear a child if it’d kill her (a.k.a. “fatal hyperstatism”), Concurrence at 4 n.2. The concurrence
also admits that “Berlin Wall” laws allowing States
to penalize fugitive mothers running to another
State for an abortion, might be unconstitutional, id.
at 10. Cf. Bruce Springsteen, Born to Run, on Born
to Run (Columbia Records 1975) (idea of archetypal
American freedom to flee).
So, per Kavanaugh, maybe the Constitution
addresses abortion after all—which may fuel
movement, outside the Court or inside a later Court,
to swing the pendulum back to larger abortion
rights. Constitution aside, though, sheer public
unhappiness with Dobbs has, well… If this is the
“post-Roe generation”, this is what it’s really like:
see, e.g., Associated Press in Jerusalem, Israel eases
abortion regulations in response to ‘sad’ Roe v Wade
ruling, The Guardian, June 27, 2022, 8:07 p.m.,
https://www.theguardian.com/world/2022/jun/27/
israel-eases-abortion-regulations-in-response-to-sadroe-v-wade-ruling, “The new rules, approved by a[n
Israeli] parliamentary committee, grant women
access to abortion pills through the country’s
universal health system and remove a longstanding
requirement that women appear physically before a
special committee before they are permitted to
terminate a pregnancy. [Etc.]” Id.
See also, e.g., Emmanuel Akinwotu, Sierra Leone
backs bill to legalise abortion and end colonial-era
law, July 6, 2022, 12:57 p.m., The Guardian, https://
10
www.theguardian.com/global-development/2022/jul/
06/sierra-leone-backs-bill-to-legalise-abortion-andend-colonial-era-law,
President Julius Maada Bio said his
cabinet . . . . would expand access to
abortion[.]
....
“At a time when sexual and
reproductive health rights for women
are either being overturned or
threatened, we are proud that Sierra
Leone can once again lead with
progressive reforms,” said President
Bio, referring to the US supreme court’s
decision to overturn the constitutional
right to abortion, which has drawn
criticism around the world.
Id. So, Dobbs will now likely cause more abortions, in
multiple nations. One doesn’t need to read Sophocles
to wonder if the Dobbs Opinion’s hubris is already
bringing nemesis, so that Dobbs may be a pyrrhic
victory for “pro-life” enthusiasts.
There is even the recent opéra bouffe of Justice
Kavanaugh having to flee a steakhouse staked out
by “pro-choice” protesters. Amicus is sorry that this
flight had to happen (and is pleased that Kavanaugh
has also escaped assassination…); but if masses of
Americans feel cheated of justice, unpleasant things
may happen. On that note, it is best, after Dobbs,
that the Court try to avoid decisions that make
Americans feel procedurally (or substantively)
cheated, including in “culture war” cases relating to
sex, gender, religion, race/affirmative action, etc.
11
II. JUSTICE KETANJI BROWN JACKSON
WAS CHOSEN BY OPEN RACIAL/GENDER
SELECTION, SO THE COURT’S MEMBERS
MAY BE OBLIGED TO OPPOSE HER SEAT
ON THE COURT IF THEY TRULY OPPOSE
RACE-BASED AFFIRMATIVE ACTION
The duty to avoid “cheating” is especially
pertinent in the instant case, since the Court itself
flagrantly instantiates affirmative action. See Sahil
Kapur, Biden pledged to put a black woman on the
Supreme Court. Here’s what he might have to do.,
NBC News, May 6, 2020, 6:12 a.m., https://www.
nbcnews.com/politics/2020-election/problem-biden-spledge-black-woman-justice-n1200826, “Biden made
his pledge days before the South Carolina primary.
‘I’m looking forward to making sure there’s a black
woman on the Supreme Court, to make sure we, in
fact, get every representation[.]’” Id.
And Biden carried out his “pledge”, not allowing
for whites, males, or anything but a black/Black
woman. Joe Biden is a government official
(President) who used, and even proudly, publicly
proclaimed, an exclusive racial/gender test to
nominate either Ketanji Brown Jackson or another
African-American woman—again, exclusive.
See also Brent D. Griffiths, Reagan’s White House
made sure the president stuck by his promise to name
a woman to the Supreme Court — they knew the
politics would help too, Bus. Insider, Jan. 27, 2022,
2:52 p.m., https://www.businessinsider.com/supreme
-court-women-history-reagan-biden-nominees-2022-1
(President Reagan makes gender-exclusive choice,
i.e., affirmative action, to nominate Justice Sandra
Day O’Connor); Geoff Bennett, Shannon Pettypiece
12
& Monica Alba, Trump vows to choose a woman to
fill Ginsburg’s Supreme Court seat, NBC News, Sept.
19, 2020, 10:33 a.m. (updated Sept. 19, 2020, 5:05
p.m.), https://www.nbcnews.com/politics/supremecourt/amy-coney-barrett-emerging-front-runner-fillginsburg-s-supreme-n1240547 (President Trump
makes gender-exclusive choice, i.e., affirmative
action, to nominate Justice Amy Coney Barrett).
If race-conscious affirmative action is really
illegal, how is Jackson’s selection for the Court
remotely legal, or moral, even? True, she is already
on the Court, and the Court hasn’t outlawed
affirmative action yet. But if Petitioner is suing to
have Asian Americans transfer into colleges who
allegedly discriminate against Asians: if that is
found proper, then by extension, it would be
obligatory for Jackson to leave the Court (unless the
Court expands by one seat, maybe…), and for the
President to nominate a new candidate to “transfer
in” to the Court, without any racial, or maybe
gender, criteria whatsoever.
This is not a comfortable topic, but why should it
be? The Court has no place ending affirmative action
unless it also publicly criticizes Justice Jackson’s
presence on the Court, and expresses a wish for her
removal. (And also Justice Barrett, if the Court
outlaws gender-based affirmative action.) For the
Court to turn a blind eye and make an exception, use
a “double standard”, for its own affirmative-actionstamped group, Members of the Court, would be
supremely hypocritical. (The Court should embrace
Jackson wholeheartedly… and affirmative action,
with limits.)
13
III. SUPPORTING ISRAEL, A.K.A.
“AFFIRMATIVE ACTION FOR JEWS”,
MAKES IT AWKWARD TO SAY AFFIRMATIVE
ACTION IS EVIL AND MUST BE BANNED
Speaking of hypocrisy: if a heckler sneeringly
asked an affirmative-action supporter, “Are you for
racial preference?”, he/she could answer, “Yeah, it’s
called Israel. God bless Israel”, without missing a
beat. Anyone who professes to hate race-conscious
affirmative action but is happy with the existence of
Israel as a purposely Jewish state, and American
funding and arming of all that for decades, may be
confused, or dishonest.
Various Jewish people/organizations themselves
have explicitly used the term “affirmative action” to
describe what Israel does for Jews. See, e.g., Tamar
Sternthal, From ‘Ethnic Cleansing’ to Casualty
Count, Prof. Qumsiyeh Errs, CAMERA [Committee
for Accuracy in Middle East Reporting and
Analysis], Aug. 20, 2004, https://www.camera.org/
article/from-ethnic-cleansing-to-casualty-count-profqumsiyeh-errs/,
Had [pro-Palestinian professor
Mazin] Qumsiyeh bothered to read the
International Convention on the
Elimination of All Forms of Racial
Discrimination, for example, he would
learn that it actually upholds the
Israeli Law of Return which he so
vilifies. . . .
In addition, Section 4 [of the
International Convention, supra]
establishes that affirmative action–
14
displaying preferences to undo prior
discrimination–is legitimate[; a]nd, if
ever there was a people in need of
affirmative action it was the Jews of
Palestine.
Id. (The rationale for “affirmative action” above is
not exactly the “diversity” rationale in Grutter, but
there is still the idea that racial preference might be
needed, in a pinch, to do justice.) See also, e.g., Rabbi
David Hoffman, Zionism is not a ‘settler-colonial
undertaking’, The Mail & Guardian (South Africa),
June 28, 2005, available under “Zionism
Commentary” at http://www.zionismontheweb.org/
Zionism_is_not_a_settler-colonial_undertaking.htm,
In its essence, Zionism is not a
“settler-colonial undertaking” but a
national programme of affirmative
action. . . .
....
[W]hen one takes what is essentially
affirmative action and understands it to
be colonial oppression, then one is not
far from “gross insensitivity” -- the kind
of insensitivity that leads to yet another
Holocaust.
Id. And Israel is permanent affirmative action for a
majority (Jews) in Israel, while in America, all that
is asked for is temporary affirmative action for
underrepresented minorities, so the case for
affirmative action may be at least as legitimate in
America as in Israel.
15
(Amicus is well aware that America is not under
Israeli law, and vice versa; but at least morally, it is
difficult to support Israel, and then condemn
affirmative action as verboten. And if Jews are often
an oppressed group, so are African Americans,
Latinos, Native Americans. E.g., George Floyd’s
death, and the May 14, 2022 mass shooting in
Buffalo, New York, where white supremacist Payton
Gendron allegedly murdered ten black people,
vividly remind us that minorities are still
oppressed—even in college environments, see, e.g.,
Aimee Cho & NBC Washington Staff, Georgetown
Administrator at Center of Tweet Controversy
Resigns, NBC Wash., June 6, 2022, updated 6:24
p.m., https://www.nbcwashington.com/news/local/
georgetown-administrator-at-center-of-tweetcontroversy-resigns/3070566/ (re Ilya Shapiro’s
racist-leaning Twitter comment on “lesser black
woman” re Court nominations).
Finally, Petitioner makes much of the antiSemitic origins of alumni-child college-admission
advantages; so, when we hear, supra, that there is
affirmative action that opposes anti-Semitism—and
we also know that affirmative action for minorities
can offset advantages for predominately white/
wealthy alumni children—, maybe American
affirmative action is not so intolerable after all.
IV. THE COURT SHOULD NOT ABOLISH
AFFIRMATIVE ACTION BEFORE ALUMNICHILD COLLEGE-ADMISSION PRIVILEGES—
THEMSELVES A FORM OF AFFIRMATIVE
ACTION—HAVE BEEN ABOLISHED
16
Speaking of “white/wealthy alumni children”:
“legacy” university-admission preferences are an
unearned, hereditary privilege for people already
from privileged families. It is a sordid business—
heard that phrase before?—, a sordid business, this
“legacy” privilege. Should privilege be awarded with
further privilege? Is that the American dream… or
an abusive nightmare?
If the Court abolishes a tool of integration and
desegregation like affirmative action—admittedly a
blunt instrument at times, but one which has done
much good—, but leaves in place a cage of
segregation and anti-diversity like “legacy”
preferences, not unlike the realm of royal/
aristocratic hereditary privilege in Britain from
which the American Revolution was supposed to free
the 13 Colonies, would that be truly American?
Amicus is concerned that the Court might selfrighteously eliminate “traditional” affirmative action
(benefiting underrepresented minorities), and then
offer only a pious, airy hope that somehow this
might “pressure” colleges to abandon “affirmative
action for the already-advantaged” (“AAAA”?) such
as alumni-child preferences. The glaring hypocrisy of
keeping only the privileges that aid the privileged,
not to mention the fact that many of the Court’s
Members’ own children may benefit from such
privileges, may not improve the image of the Court.
And many schools, if traditional affirmative
action is destroyed, may make only cosmetic
improvements, saying, maybe, “We’ll, uh, somewhat
reduce the scale of alumni-child bonuses”, when they
should not have such preferences at all. —On that
latter note:
17
A. The Court Might Consider Sua Sponte
Abolishing Alumni-Child (or Similar)
Admissions Advantages
For the Court to spontaneously outlaw alumnichild privileges would be a huge step, and maybe no
party has asked for it. But if the Court in Dobbs was
willing to go far beyond what the certiorari petition
asked for, then it might not be such a stretch for the
Court to outright illegalize “legacy” privileges;
especially if the Court abolishes race-based
affirmative action—God forfend—, the Court could
then abolish “legacy” bonuses as themselves a form
of forbidden race-based affirmative action.
(Incidentally, bonuses for athletes may not be evil,
as long as they’re not just surrogates for white
wealth, as could happen with, e.g., lacrosse,
equestrianism, or sailing.)
After all, Petitioner makes alumni-kid privileges
sound racialized and horrible—and they are, with
whiffs of anti-Semitism, white supremacy, etc. Not
even mentioning possible fraud issues: any college
that claims it supports “diversity” but has privileges
for the privileged, is arguably fraudulent and selfcontradictory.
B. Why Didn’t Petitioner Sue Respondents
Over Alumni-Child Admission Advantages?
Too, Amicus finds it disturbing that Petitioner
could have sued Respondents over “legacy”
privileges, but didn’t. If such privileges really stem
from anti-Semitism, plus other odious things (white
supremacy; snobbery; being around longer than
affirmative action has; and again, even fraud, if the
18
college claims to value diversity but still keeps antidiversity policies like “legacy” advantage), Petitioner
easily could have sued.
But it is suing only to end affirmative action
helping underrepresented minorities. (See generally
Br. Amicus Curiae of Professor Fiona A. Harrison in
Supp. of Neither Party in 20-1199, especially at 12
n.6 (noting Petitioner’s failure to sue over “legacy”type preferences).) This is wrong, and recognizing
that error should color (so to speak) the Court’s
deliberations.
C. The Court’s Members Should Be
Transparent About Any Admissions Privileges
Their Families Have Received or Will Receive,
Including Alumni-Child, Donor, or Other
Privileges
This is another sensitive topic, but relevant. A
number of the Court’s honorable Members may be
graduates of Harvard or other colleges which offer
privilege preferences. This being so, the Court may
be ruling, in the instant case, on privileges affecting
their own families.
Thus, Amicus hopes the Court will be publicly
transparent about any such privileges, past, present,
or prospective; and hopes that the Nation’s
journalists may be energetic in trying to find out
about privileges benefiting Justices’ families. Fair is
fair.
D. Just Because Some Alumni Children Are
Also from Underrepresented Minorities, That
Does Not Justify Keeping Alumni-Child
Privileges
19
By the way, some may argue that because
colleges are more integrated than formerly, many
children of alumnae/i will now be black, Latino, or
Native American; and that therefore, it’s “okay” to
keep alumni-child privileges. But, while the
progressing diversification of alumni and offspring is
a good thing in itself: still, on the whole, “legacy”
preferences tend to benefit the majority racial group
(Caucasian), and always benefit people who are
privileged enough to be alumni, regardless of color.
If an alumna/us of color’s children receive a
“legacy” admissions boost, that hurts not only
anyone who isn’t an alumni kid, it hurts applicants
of color who aren’t alumni kids.
And what if an alumni-child of color receives
double benefits, both for being a “legacy” and for
being a minority? (Should Barack Obama’s children
have received admissions privileges for their father’s
name, …and his being a Harvard alumnus, …and
being African-American?) Is that fair? The reader
may come to her/his own conclusions.
E. Underrepresented Minorities Should Be
Able to Opt Out of Preferential Treatment in
Admissions, if They Feel Stigmatized by It
As for the allegation that affirmative action may
stigmatize minorities, perhaps the Court should
mandate that minority applicants who don’t want an
admissions boost for their racial-group membership,
should be able to demand that they get no plus. Say,
a Native American applicant named Thomas
Clarence, who is horrified at affirmative action,
could request that he not be given extra points for
being Cherokee.
20
But affirmative action would exist for other
minorities who want that boost. Therefore, they
wouldn’t be hurt (affirmative action would still
exist), but Thomas Clarence wouldn’t be insulted,
since he could opt out of affirmative action: a classic
win-win situation.
F. Giving Admissions Privileges to Children of
Donors Is Reminiscent of Prostitution/Bribery
Turning to donors’ children, instead of just
alumni’s or faculty/staff’s children, for a moment: the
idea of purchasing Junior’s way into the class, has
an un-American stench to it, redolent of the brothel.
America is supposed to be about merit, hard work,
and diversity (“E pluribus unum”), not a rigged game
and “dirty pool”. What’s next, purchasing a seat on
the Court? To quote the corrupt policeman Tom
Keough (played by Jack Kehoe) in Serpico
(Paramount Pictures 1973): “[W]ho can trust a cop
who don’t take money?” Ugh.
The excuse that “schools can use the money” is a
poor one. (Harvard talking poor-mouth looks
particularly bad.) There are other ways to raise
money, which don’t look corrupt. If anything is
justified to raise money for a college, then, why not
sell marijuana (where it’s legal…) at football games,
and auction the maidenhead of cheerleaders (if
prostitution is legal…), or at least lap dances/
striptease from cheerleaders, to raise money for Dear
Old Alma Mater?
Donor-child preferences are per se tainted by
resembling, or being, a sort of prostitution, or
bribery, or both. The Court should be loath to end
21
affirmative action before donor-child privilege (which
does skew white and wealthy) is abolished.
Such privilege even may hurt donor children
themselves—just as hereditary privilege might.
Without mentioning George W. Bush, Jared
Kushner, or Hunter Biden, privilege can be deeply
corruptive to its recipients.
G. Petitioner’s Simulated Alternative, Ending
Privilege Preferences, Has Good Points, but
Does Not Logically Imply Affirmative Action
Must End… and It Also Massively, Wrongly
Hurts Underrepresented-Minority Applicants
On that note, Amicus, trying to be reasonable,
sees some limited good in Petitioner’s ideas for
change. For example,
At trial, SFFA simulated an alternative
where Harvard eliminates its
preferences for the children of donors,
alumni, and Harvard faculty—who are
overwhelmingly white and wealthy—
and increases its preference for the
socioeconomically disadvantaged.
Harv.JA763-65, 774-75. Under this
simulation, underrepresented minority
admissions rise slightly, AsianAmerican admissions increase, Harvard
becomes more socioeconomically
diverse, and academic characteristics
remain excellent. Harv.JA774-75,
1775, 1783.
22
Pet’r’s Merits Br. at 81 (citations omitted). Prima
facie, this sounds fairly good. Amicus is all for the
elimination of the listed now-forbidden preferences,
and more Asians and socioeconomic diversity both
sound excellent.
However, there are huge problems with
Petitioner’s argument. First, there are logical
problems, such as:
a. elimination of “legacy” and similar preferences
(dean’s special list, etc.), does not logically imply that
b. affirmative action for underrepresented minorities
must also be eliminated;
and the corollary issue/possibility, that:
a. if elimination of privilege preferences produces a
larger number of seats for, e.g., Asians and poorer
people at a school,
b. that may actually reduce the pressure to eliminate
affirmative action for underrepresented minorities,
since the extra seats available from the end of
“legacy”-type preferences, may compensate for seats
taken by underrepresented minorities under
affirmative action.
Otherwise put, an admissions model may be
mathematically possible (and otherwise desirable),
wherein privileges for the privileged vanish, but
affirmative action for underrepresented minorities
still exists: either at its present strength, or,
alternatively, somewhat weakened, if people see it as
overly benefiting those minorities.
23
A second huge problem, more “factual” and
“equitable” than just “logical”, maybe, is the colossal
drop in minorities’ attendance under Petitioner’s
models. Petitioner acknowledges an enormous c. 75%
decline in Native American admissions at UNC,
from 1.8% to 0.5%, under one model, Br. at 85
(citations omitted). And the 20-1199 (“Harvard”)
joint appendix at 1775, “Outcome Measures”, line 4,
yields, id., under three different models, drops of,
respectively, 30%, 30%, and 32%—almost a third!—
in black student admissions. This is catastrophic,
and Petitioner’s brief doesn’t even have the candor to
mention it explicitly.
Do such collapses in Native American/AfricanAmerican attendance constitute “workable raceneutral alternatives”? Maybe not.
But, as Amicus noted supra, admissions models
may be possible, wherein privilege preferences
disappear, but underrepresented minorities still
receive admissions bonuses. This would tend to
prevent the horrific cratering of underrepresentedminority attendance that Petitioner’s own models
supra predict.
Still, if there is eventually some reduction in
underrepresented-minority numbers, just not near
the 30% range, reasonable people might consider
that acceptable, if that is the price of a gradual
truncation of, or end to, affirmative action, as per the
original 2028 limit mentioned in Grutter.
At this point, we shall switch to further
discussion of Asian-American admissions:
V. AFFIRMATIVE ACTION DOES NOT
LOGICALLY REQUIRE BIAS AGAINST
ASIAN AMERICANS OR OTHER GROUPS
24
Amicus was sorry to hear that there was alleged
bigotry against Asian Americans in Respondents’
school-admissions processes. If so, that was as
deplorable as any other form of racial/ethnic bigotry,
and should be ended.
However, affirmative action does not of necessity
mean that Asians, or others, will automatically be
treated badly or stereotyped. Why would it? If
admissions officers really understand diversity, they
should be able to comprehend that Asian Americans
may differ individually as much as anyone else. (Are
Harvard and UNC, reputable research universities,
considered just too stupid to learn to respect Asian
Americans? Really?)
Otherwise put, Petitioner makes the logical error
of assuming/claiming, “If there has been any
prejudice/stereotyping against Asian- (or other-)
American university/college applicants under
affirmative-action regimes: all affirmative action is
ipso facto wrong and must be destroyed
immediately.”
But that is a false dilemma. What if, say,
prejudice against Asian Americans (or others),
alleged to be caused by affirmative action, can be
alleviated, without destroying affirmative action?
Then affirmative action needn’t be destroyed.
Petitioner itself admits that treatment of Asians
improved over time, even if it needed a push from
Petitioner. Br. at 17 (Harvard admitted more Asians
after lawsuit). So, there is hope for fair treatment of
Asians under affirmative action. (Schools without
affirmative action might also stereotype Asians, and
25
maybe even worse than schools with affirmative
action, for all we know, since schools without
affirmative action might not even value any kind of
diversity.)
Thus, if affirmative action is useful, e.g., for
preventing underrepresented-minority students from
diminishing over 30%, one may as well keep it, but
not keep bigotry against Asian Americans.
One possible objection is that even if there’s no
bias or “negative rating” for Asians, the bonus for
blacks, Latinos, or Native Americans may be so high
that there’s allegedly unfair advantage for the latter
over Asians. However, if Asian Americans aren’t
disadvantaged more than whites, say, then at least
Asians (or Caucasians/whites) are not being treated
as actual inferiors.
Too, as noted supra, the amount of “bonus” or
“plus”, so to speak, for underrepresented minorities
could be reduced, if deemed excessive. Amicus isn’t
claiming that Respondents use actual numerical
bonuses in affirmative action, but if their admissions
practices resemble such, that could be altered. This
would make it harder to claim that whites or Asians
are being treated less fairly than are African
Americans, Latinos, or Native Americans.
If schools don’t use the concept of “critical mass”,
denoting a large-enough number of minority
students that the members of a minority don’t feel
isolated or tokenized, maybe they could adopt it,
even if with a less radioactive term than “critical
mass”. (Maybe “significant/substantial group”, “selfsupporting group”, “confident number”, or something
else, would be better than “critical mass”.)
26
Then schools could discuss the lowest rough
number of minorities they feel might be enough to
prevent isolation. This number may get smaller over
time, as our society hopefully proceeds towards
greater integration and less bigotry. Since
affirmative action is supposed to disappear
eventually, it would be good if the “confident
number” becomes smaller over time.
(Of course, a too-rigid number may be seen as a
forbidden “quota”. Then again, commonsensically, if
there’s just one minority student, or a small handful,
then minority students may feel very uncomfortable.
So rough numbers may not be all bad, especially
since affirmative action has to go, eventually.)
VI. TWO ASIAN-AMERICAN STUDENTS
SUPPORTING AFFIRMATIVE ACTION
It is now time to hear from some actual AsianAmerican students, at length, eloquently supporting
affirmative action. First, Benjamin Chang, I’m an
Asian American Harvard student. The antiaffirmative-action case does not speak for me, Wash.
Post, Feb. 4, 2022, 12:58 p.m., https://www.
washingtonpost.com/opinions/2022/02/04/harvardasian-american-student-believes-in-affirmativeaction/,
As president of the Asian American
Association at Harvard and the son of
an immigrant family, I have a message
for those who oppose affirmative action:
Do not use the Asian American
community to advance your political
agenda.
27
....
Students for Fair Admissions, led by
conservative legal strategist Edward
Blum, claims to stand up for Asian
Americans, arguing that affirmative
action unfairly targets certain
minorities. But this organization does
not represent us. In fact, the Harvard
Asian American community has
overwhelmingly supported raceconscious admissions, with 10 Asian
student organizations filing an amicus
brief for Harvard when the case was
heard by the Massachusetts District
Court in 2018. . . .
....
For Blum, this effort dates to Fisher
v. University of Texas, an affirmative
action case that he lost — after which
he bluntly stated that he “needed Asian
plaintiffs.” By using Asian clients as a
front for his attack on communities of
color, he is pitting minority groups
against one another . . . .
....
Talking with my roommate about
how he faced racism in Mississippi
taught me more about the Black
experience than I ever could have
learned in a classroom. Late-night
conversations with classmates about
our hometowns transformed my idea of
the Middle East. . . .
....
28
Yes, there is still much to be done to
make Harvard more equitable.
Statistics show that Asian American
applicants generally have high
academic ratings but are unfairly
penalized in the qualitative “personal
rating” category. Legacy students still
make up a disproportionate percentage
of the student body. . . .
....
. . . By attacking affirmative action,
SFFA is attempting to rob our children
of valuable opportunities to understand
one another and the world. This we
students cannot stand for. So please:
Stop using people like me as a political
tool to attack other communities of
color. You do not speak for us.
Id. Second, Zachariah Chou, My race may have
played a factor in my college rejections, but I support
affirmative action, Yahoo! News (originally in USA
Today), Feb. 15, 2022, https://www.yahoo.com/news/
race-may-played-factor-college-130024410.html,
I got rejected from those two colleges
[, Harvard and UNC.]
....
At the end of the day, affirmative
action helps Asian Americans –
especially underrepresented subgroups
– and a supermajority of us support it.
And to those who don’t support it, I
get it.
29
It hurts because the American
dream tell[s] us that if you work hard
enough, you can do anything. But that’s
just not the way it is in reality.
Expecting to get into a particular
college just because you worked hard is
called entitlement . . . .
It hurts because when we read the
lawsuit’s (contested) claim that Asian
American applicants to Harvard scored
lower on personality traits, it reminds
us the implicit bias we face every day in
our classrooms and workplace. Yes,
admissions offices can be more diverse
and admissions officers can be better
trained to overcome their biases.
However, I can’t see this one claim as
good enough reason to end affirmative
action across our country.
What really hurts is seeing Asian
Americans being used by white people
like Edward Blum to attack a system
that benefits ourselves and other
minorities. The playbook is so old[:]
Asian Americans are being used as a
racial mascot[,] a racial wedge[,] being
racially triangulated against other
minorities by white people in their fight
against affirmative action. . . .
....
Maybe my race played a role in my
rejection. Maybe it didn’t. Life goes on if
you don’t get into the college of your
dreams.
30
Affirmative action, as a principle,
serves to help all underrepresented
groups of people, including those from
rural areas or lower socioeconomic
status. Race really is just one of the
many, many factors college admissions
officers look at through their holistic
review processes.
To scapegoat race for an admissions
rejection would be, well, unfair.
Id. Indeed, Asians may have worse problems than
alleged affirmative-action issues: see, e.g., Dr. Mishal
Reja, Trump’s ‘Chinese Virus’ tweet helped lead to
rise in racist anti-Asian Twitter content: Study, ABC
News, Mar. 18, 2021, 2:58 p.m., https://abcnews.go.
com/Health/trumps-chinese-virus-tweet-helped-leadrise-racist/story?id=76530148, “On the night several
Asian women were shot dead in Atlanta, [Trump]
referred to COVID-19 as the ‘China Virus’ on Fox
News.” Id.; Sakshi Venkatraman, Black, Asian law
students call for professor to be suspended over racist
remarks, NBC News, April 20, 2022, 11:22 a.m.,
https://www.nbcnews.com/news/asian-america/blackasian-law-students-call-professor-suspendedoffensive-remarks-rcna25187 (University of
Pennsylvania teacher Amy Wax waxes racist).
VII. AFFIRMATIVE ACTION SHOULD
SURVIVE FOR AT LEAST THE “25YEAR GRACE PERIOD” GRANTED IN
GRUTTER, AND POSSIBLY LONGER
As for when/whether affirmative action should
leave the stage, permanently: Amicus is somewhat
31
shocked that Petitioner would destroy it
immediately, when even their own brief, id. at 12,
refers to “Grutter’s 25-year grace period.” That
period hasn’t expired, and, as noted, Petitioner
hasn’t shown a necessity for destroying all
affirmative action right now. Their brief also
mentions, id. at 67, Grutter’s “own self-destruct
mechanism” (citation omitted); well, if Grutter is
designed to disappear anyway, why gratuitously
push it out the window prematurely?
Petitioner does have a point, if it’s true that “[t]he
whole point of Grutter’s 25-year deadline, moreover,
was to give universities time to wind down their
racial preferences. But universities aren’t doing
that. Harvard and UNC have not decreased the size
of their racial preferences since 2003, and both insist
that Grutter’s deadline is not influencing their
behavior.” Br. at 68-69. The Court may need, then, to
“encourage” schools gradually to abate preferences
for underrepresented minorities, whether on a 25year timeline or a more extended timeline.
However, given the horrific, disproportionate
suffering and mass deaths of minorities during the
COVID-19 pandemic; and also given the epidemic of
white supremacy (e.g., in the January 6, 2021
terrorist attack on the U.S. Capitol): it might be
cruel not to give some extension to the 25-year
Grutter deadline, say, 5-10 years. This doesn’t come
close to doubling the deadline (50 years), so may be
considered reasonable. Affirmative action must take
its curtain call at some point, but it would be
graceless to violate the 25-year grace period; and
maybe also, graceless not to give some extension,
32
even a decade, maybe, considering the recent
atrocious, deadly, mass suffering of minorities.
(See, e.g., Br. for Ann M. Killenbeck et al. as
Amici Curiae in Supp. of Neither Party in 20-1199 &
21-707,
Unfortunately, the economic and
social dislocations that informed those
conclusions [the need for early
educational/medical/etc. support for
future college applicants] have only
worsened in the intervening years.
Affirmative action and preferences
provide, accordingly, one possible
solution to the extent that results are
desired now.
We agree that measures must “have
a termination point.” Grutter, 539 U.S.
at 342. We doubt that it will be the year
2028. . . .
Id. at 30.)
All that being said, Amicus still thinks it
improper to end affirmative action before ending
alumni-kid advantage. Maybe affirmative action
should still be here many years from now… if and
only if the stench of “legacy” preferences still
persists; hopefully, it won’t persist long at all.
VIII. GRUTTER IS NOT PLESSY, ESPECIALLY
GIVEN BROWN, COLIN POWELL’S
EMBRACE OF AFFIRMATIVE ACTION,
AND MARTIN LUTHER KING’S
ADVOCATING ACTUAL QUOTAS FOR
UNDERREPRESENTED MINORITIES
33
It is especially important to uphold affirmative
action in the face of Petitioner’s grossly offensive
claims, see Br. at 47, 68, 86, that affirmative action
is just Plessy wearing drag. Such claims are
unconvincing, given that, e.g., African-American
patriots like General Colin Powell supported
affirmative action. See, e.g., the military amicus brief
he co-signed (Br. of Lt. Gen. Julius W. Becton, Jr., as
Amici Curiae in Supp. of Resp’ts) in Fisher I, supra
at 1, available at https://www.scotusblog.com/wpcontent/uploads/2016/08/11-345-respondent-amicusbecton.pdf,
As one senior Pentagon official put
it, “[d]oing affirmative action the right
way is deadly serious for us—people’s
lives depend on it.” . . . .
....
The court of appeals correctly
confirmed the constitutionality of UT’s
race-conscious admissions policy under
existing precedent, including Grutter.
The judgment of the court of appeals
should be affirmed.
Br. at 8, 38 (brackets in original) (citation omitted).
(General Powell signed at an unnumbered page, id.,
directly following the cover page.)
So, was Powell really some closet racist who
wanted blacks segregated from whites à la Plessy?
Petitioner should take care not to make asinine
claims.
Moreover, the Reverend Dr. Martin Luther King,
Jr., advocated a form of affirmative action for
African Americans which amounted to actual quotas,
34
a stronger form of preference than the diversity
criterion of Grutter allows. A fortiori, then, King may
likely have supported Grutter’s diversity criterion for
affirmative action, since it isn’t as strong as what he
did advocate. …But who reading this would call King
a “racist” for doing that? That would not be very
wise.
See, e.g., Ruthann Robson, Daily Read: MLK and
Affirmative Action, Const. L. Prof. Blog, Jan. 15,
2018, https://lawprofessors.typepad.com/conlaw/
2018/01/daily-read-mlk-and-affirmative-action.html
(quoting David B. Oppenheimer, Abstract of Dr.
King’s Dream of Affirmative Action, written Aug. 7,
2017, available at https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=3015018 (some citations/
dates omitted)),
Yet as Professor Oppenheimer
argues it is simplistic - - - and incorrect
- - - to conclude that Martin Luther
King’s political theorizing can be
reduced to a convenient “color-blind”
position. Oppenheimer writes:
[indented words of Oppenheimer]
…On the one hand, he spent much of
the last six years of his life actively
promoting what we would describe
today as race-conscious affirmative
action, including the use of racial
quotas in employment. Specifically,
from 1962-68 Dr. King orchestrated and
implemented “Operation Breadbasket,”
a civil rights boycott campaign that
demanded employment quotas for Black
35
American workers based on their
numbers in a workforce, neighborhood
or city. Yet on the other hand, with
regard to class-based affirmative action,
Dr. King supported a massive war on
poverty. In advocating for special
benefits for poor Americans he
sometimes used color-blind language
and pointed out that it would benefit
poor whites as well as poor Blacks,
while at other times he justified it as an
example of the kind of reparations to
which Black Americans were entitled
under the equitable remedy of
restitution for unpaid wages.
[end of quoted Oppenheimer paragraph]
....
It seems pretty clear that MLK
supported what is now known as
“affirmative action.”
Id. And, last but not least, let us hear from Brown
itself on the essence of Plessy: “[T]he so-called
‘separate but equal’ doctrine announced by this
Court in Plessy v. Ferguson, 163 U. S. 537. Under
that doctrine, equality of treatment is accorded when
the races are provided substantially equal facilities,
even though these facilities be separate.” 347 U.S. at
488 (Warren, C.J.). But as we know, Grutter is about
diversity and desegregation, not promoting
segregation as Plessy does, per Earl Warren, supra.
So, all told, when Petitioner makes absurd
comparisons of affirmative action to Plessy, they
have little to stand on—unless Petitioner wants to
36
argue with King, Powell, and the Brown Court.
Amicus doubts Petitioner would win that argument.
(Incidentally, if Plessy has never been formally,
per se overturned, or fully overturned, Amicus
politely asks the Court to overturn Plessy formally,
per se, and fully, right now. This may be long
overdue, and far better than overturning a prointegration case like Grutter.)
* * *
Amicus, by the way, was a student (not an
underrepresented minority) at the University of
Michigan Law School in a time (1999-2002) leading
up to Grutter, which vindicated the school’s
affirmative-action program. He, and many others,
felt that they benefited, intellectually and socially,
from the racially-diverse student body at the school.
(Pace Petitioner, Amicus believes in Grutter;
Petitioner never even asked Amicus about it.)
While the State of Michigan (and California, etc.)
doesn’t currently allow affirmative action, at least it
had a choice (which Amicus defended in Schuette,
noted supra at 1) to keep or reject it. Now Petitioner
wants to take that choice away; that should not
happen before 2028 at the earliest, or before “legacy”
and similar preferences are extinct.
Indeed, not just Michigan Law, but most of the
honorable Court, has benefited from some form of
affirmative action, it seems. Justices Barrett and
Jackson in the Court-nomination procedure; Justice
Brett Kavanaugh in applying to Yale (see Eoin
Higgins, Yale Legacy Admission Brett Kavanaugh Is
Now the Swing Vote on Affirmative Action at
Universities, The Intercept, Oct. 8, 2018, 1:36 p.m.,
37
https://theintercept.com/2018/10/08/brett-kavanaugh
-affirmative-action-at-universities/), Justice Sonia
Sotomayor in applying to Princeton, and Yale Law,
and Justice Clarence Thomas in applying to Yale
Law; …and Justice Samuel Alito from what may be
called “man-firmative action”, since he entered
Princeton in 1968 and apparently didn’t have to
compete with females (Princeton admitted women in
1969; cf. Wikipedia, Concerned Alumni of Princeton,
https://en.wikipedia.org/wiki/Concerned_Alumni_of_
Princeton (as of Mar. 14, 2022, 5:50 GMT), re Alito’s
membership of a group opposing affirmative action,
but supporting minimum quota of men at Princeton).
This all might make it odd for the Court to claim
that any admission privilege for any race/gender is
always a bad thing, since this might condemn most
of the Court’s Members themselves. (Justice Elena
Kagan’s former deanship of Harvard Law School, if
alumni/donor/etc. admissions privileges existed
under her leadership, may also be of interest, if not
quite (?) recusal material.)
In particular, with two African-American
affirmative-action beneficiaries on the Court—a
100% increase in black membership from a few
months ago—, it might be a strange time to adopt
Petitioner’s proposals, which, as noted supra at 23,
project a roughly 1/3 drop in black student admission
at Harvard, and roughly 3/4 drop in Native
American student admission at UNC.
But if the Court can find a solution which avoids
racial exclusion (e.g., prejudice against Asian
Americans), is thoughtfully time-limited, ends
“legacy”/donor/faculty/staff and similar preferences,
allows preferences keeping schools integrated
38
instead of segregated (e.g., no 30% attendance-drops
of any underrepresented minority), and is untainted
by bias in America’s “culture war”: the Court may be
staying true to its own history as an affirmativeaction-peopled, affirmative-action-improved
institution; being attentive to international
examples like Israel (“Jewish affirmative action”);
and honoring the spirits of Colin Powell, Martin
Luther King, and the epic, desegregative greatness
of the Brown Court.
CONCLUSION
The Court should uphold Grutter, but also hold
affirmative-action-using schools to greater
responsibility, such as ending the sordid business of
admissions preferences for already-privileged
children of donors/alumni/faculty/staff. Amicus
humbly thanks the Court for its time and
consideration.
July 18, 2022
Respectfully submitted,
David Boyle
Counsel of Record
P.O. Box 15143
Long Beach, CA 90815
dbo@boyleslaw.org
(734) 904-6132
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.