Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. President and Fellows of Harvard College
Supreme Court briefAug 1, 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 H ARV ARD COLLEGE,
Respondent.
_______________________
STUDENTS FOR FAIR ADMISSIONS , INC.,
Petitioner,
v.
UNIV ERSITY OF NORTH CAROLINA , et al.,
Respondents.
___________
On Writs of Certiorari to the
United States Courts of Appeals for the
First and Fourth Circuits
___________
BRIEF OF AMICI CURIAE UNITED STATES
SENATORS AND FORMER SENATORS
SUPPORTING RESPONDENTS
_________________
Mitchell A. Kamin
Neema Sahni
Alexander L. Schultz
Erin E. Moore
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067
Conrad Scott
COVINGTON & BURLING LLP
620 8th Avenue
New York, NY 10018
Robert A. Long, Jr.
Counsel of Record
Eric Chung
COVINGTON & BURLING LLP
850 Tenth Street, NW
Washington, DC 20001
(202) 662-6000
rlong@cov.com
Counsel for Amici Curiae
August 1, 2022
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES.............................iii
INTEREST OF AMICI CURIAE ...................... 1
SUMMARY OF ARGUMENT ........................... 2
ARGUMENT ....................................................... 3
I. Both This Court And Congress Have
Consistently
Recognized
That
Diversity In Higher Education Is A
Compelling Governmental Interest............ 3
A. This Court has long recognized
that diversity in higher education
is a compelling governmental
interest. .................................................... 4
B. Congress has also recognized the
benefits achieved by diversity in
higher education...................................... 8
1. Congress has acted to promote
diversity in higher education. .......... 8
2. Congress has fostered diversity
at military service academies. ....... 11
C. This Court Should Give Weight
To The Views Of The Political
Branches Concerning The
Compelling Need For Diversity In
Higher Education. ................................. 13
ii
II. In Enacting Title VI Congress Sought
to Further, Not Prohibit, RaceConscious Measures Aimed at
Advancing Equality of Opportunity
for
Historically
Disadvantaged
Groups.......................................................... 15
A. Before and after Congress
enacted Title VI, the Executive
Branch sought to promote
equality of opportunity for
historically disadvantaged
groups, including through “raceconscious” means................................... 16
B. Congress intended Title VI to
permit, not prohibit, the
Executive Branch’s efforts to
achieve equality of opportunity
for disadvantaged groups,
including through “raceconscious” means................................... 19
III. Overruling Grutter Is
Not Warranted. ........................................ 25
A. Strict scrutiny is the standard
for race-conscious policies across
all fields................................................ 25
B. Overruling Grutter would
represent an unjustified
departure from principles of
stare decisis.......................................... 28
CONCLUSION ................................................. 31
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Adarand Constructors, Inc. v. Peña,
515 U.S. 200 (1995).................................................26
Alexander v. Sandoval,
532 U.S. 275 (2001).................................... 19, 20, 21
Assoc. Gen. Contractors of Mass. v.
Altshuler,
490 F.2d 9 (1st Cir. 1973).......................................17
Brown v. Bd. of Educ.,
347 U.S. 483 (1954).................................................27
Columbia Broad. Sys., Inc. v.
Democratic Nat’l Comm.,
412 U.S. 94 (1973)...................................................14
Contractors’ Ass’n of E. Pa. v. Sec’y of
Labor,
442 F.2d 159 (3d Cir. 1971) ............................ 17, 25
Dickerson v. United States,
530 U.S. 428 (2000).................................................29
Dunn v. Blumstein,
405 U.S. 330 (1972).................................................15
Emp. Div. v. Smith,
494 U.S. 872 (1990)...................................................8
Fisher v. Univ. of Tex. at Austin,
570 U.S. 297 (2013)...................................................7
iv
Fisher v. Univ. of Tex. at Austin,
579 U.S. 365 (2016).................................... 2, 6, 7, 29
Gamble v. United States,
139 S. Ct. 1960 (2019) ............................................28
Gratz v. Bollinger,
539 U.S. 244 (2003).................................................29
Grutter v. Bollinger,
539 U.S. 306 (2003)........................................ passim
Guardians Ass’n v. Civ. Serv. Comm’n of
City of New York,
463 U.S. 582 (1983).................................................20
Hilton v. S.C. Pub. Rvs. Comm’n,
502 U.S. 197 (1991).................................................29
Johnson v. California,
543 U.S. 499 (2005).................................................26
Landfraf v. USI Film Prods.,
511 U.S. 244 (1994)...................................................8
Ledbetter v. Goodyear Tire & Rubber
Co.,
550 U.S. 618 (2007)...................................................8
Oregon v. Mitchell,
400 U.S. 112 (1970).................................................15
Payne v. Tennessee,
501 U.S. 808 (1991).................................................29
Plyler v. Doe,
457 U.S. 202 (1982).................................................27
v
Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ............................................28
Regents of Univ. of Cal. v. Bakke,
438 U.S. 265 (1978)........................................ passim
Rostker v. Goldberg,
453 U.S. 57 (1981)............................................ 13, 14
Sweatt v. Painter,
339 U.S. 629 (1950).................................................27
Turner Broad. Sys., Inc. v. F.C.C.,
512 U.S. 622 (1994).................................................14
Turner Broad. Sys., Inc. v. F.C.C.,
520 U.S. 180 (1997).................................................14
Constitutional, Statutory, and Regulatory
Provisions
U.S. Const. amend. XIV, § 5, cl. 1 .................................1
15 U.S.C. § 7404............................................................10
29 U.S.C. § 626................................................................8
42 U.S.C. § 1862i ..........................................................10
42 U.S.C. § 1862s-5.......................................................10
42 U.S.C. § 2000e-5 ........................................................8
50 U.S.C. § 1902............................................................10
45 C.F.R. § 80.3 .............................................................25
vi
45 C.F.R. § 80.5 .............................................................25
Exec. Order No. 10925 (Mar. 6, 1961) ............... passim
Exec. Order No. 11114 (June 22, 1963) ......................16
Civil Rights Act of 1964, Pub. L. No. 88–
352, 78 Stat. 241 ............................................ passim
Civil Rights Act of 1991, Pub. L. No.
102–166, 105 Stat. 1071 ...........................................8
College Cost Reduction and Access Act,
Pub. L. No. 110–84, 121 Stat. 784
(2007) ..........................................................................9
Higher Education Opportunity Act,
Pub. L. No. 110–315, 122 Stat. 3078
(2008) ..........................................................................9
Lilly Ledbetter Fair Pay Act of 2009,
Pub. L. No. 111–2, 123 Stat. 5.................................8
Rehabilitation Act Amendments of
1986, Pub. L. No. 99–506, 100 Stat.
1807 ............................................................................8
Religious Freedom Restoration Act,
Pub. L. No. 103–141, 107 Stat. 1488
(1993) ..........................................................................8
William M. (Mac) Thornberry National
Defense Authorization Act for Fiscal
Year 2021, Pub. L. No. 116–283, 134
Stat. 3388 ................................................................13
vii
Legislative and Regulatory History Materials
110 Cong. Rec. 2467 (1964)..........................................15
110 Cong. Rec. 2499 (1964)..........................................21
110 Cong. Rec. 2773 (1964)..........................................22
110 Cong. Rec. 6324 (1964)..........................................21
110 Cong. Rec. 6871 (1964)..........................................19
110 Cong. Rec. 13695 (1964) .......................................22
28 Fed. Reg. 11,313 (Oct. 22, 1963) ............................18
28 Fed. Reg. 13,775 (Dec. 18, 1963)............................18
29 Fed. Reg. 16,280 (Dec. 4, 1964) ..............................22
29 Fed. Reg. 16,284 (Dec. 4, 1964) ..............................23
29 Fed. Reg. 16,293 (Dec. 4, 1964) ..............................22
30 Fed. Reg. 301 (Jan. 9, 1965) ...................................23
30 Fed. Reg. 314 (Jan. 9, 1965) ............................ 22, 23
30 Fed. Reg. 325 (Jan. 9, 1965) ...................................23
36 Fed. Reg. 23,494 (Dec. 9, 1971) ..............................25
38 Fed. Reg. 17,978 (July 5, 1973)..............................25
Hearings on H.R. 7152 Before the
House Comm. on the Judiciary, 88th
Cong., 1st Sess. (1963)................................... passim
viii
H.R. Rep. 88–914 (1963) ..............................................19
Other Authorities
Charles F. Abernathy, Title VI and the
Constitution: A Regulatory Model for
Defining ‘Discrimination’, 70 Geo. L.
J. 1 (1981) ................................................................20
GAO Report 03-1017, Military
Education (2003) .....................................................12
Robert M. O’Neil, Preferential
Admissions: Equalizing the Access of
Minority Groups to Higher
Education, 80 Yale L.J. 699 (1971) .......................23
U.S. Air Force Academy, Office of
Diversity and Inclusion,
https://www.usafa.edu/about/cultureclimate-diversity/ ....................................................12
U.S. Coast Guard Academy, Inclusion
and Diversity,
https://www.uscga.edu/inclusionand-diversity/...........................................................12
U.S. Merchant Marine Academy,
Diversity,
https://www.usmma.edu/diversity ........................12
U.S. Military Academy West Point,
Multi-Cultural by Design,
https://www.westpoint.edu/admissio
ns/prospective-cadets/diversity .............................12
ix
U.S. Naval Academy, Office of
Diversity, Equity, and Inclusion,
https://www.usna.edu/Diversity/inde
x.php .........................................................................12
U.S. Naval Academy, Strategic Plan,
https://www.usna.edu/StrategicPlan/
archives/20112020/strategic_imperatives.php ............................12
INTEREST OF AMICI CURIAE1
Amici, current and former United States Senators,
submit this brief to urge the Court to adhere to the
settled principle that diversity in higher education is
a compelling governmental interest. As current and
former members of the branch of government charged
with responsibility for “enforc[ing], by appropriate
legislation” the Fourteenth Amendment, U.S. Const.
amend. XIV, § 5, cl. 1, amici have a distinctive
perspective to offer on the questions presented in
these cases.
Congress has taken numerous actions, over a
period of many years, confirming its view that
diversity in higher education is a compelling
governmental interest, and demonstrating its
commitment to achieving that vital goal.
As
legislators, amici have devoted substantial attention
to a range of complex policy issues related to diversity
in American colleges and universities, and have
worked to forge consensus on measures by higher
education institutions aimed at broadening
educational opportunity and promoting inclusion.
No party or counsel for any party authored any part of this
brief, and no person other than amici or its counsel made a
monetary contribution intended to fund the preparation or
submission of this brief. All parties have provided blanket
consent to the filing of amicus briefs.
1
2
Amici are:
Senator Richard Blumenthal of Connecticut
Senator Cory A. Booker of New Jersey
Former Senator Lincoln Chafee of Rhode Island
Senator Christopher A. Coons of Delaware
Senator Richard J. Durbin of Illinois
Senator Dianne Feinstein of California
Senator Mazie K. Hirono of Hawaii
Senator Alex Padilla of California
Senator Edward J. Markey of Massachusetts
Senator Jeffrey A. Merkley of Oregon
Senator Christopher S. Murphy of Connecticut
Senator Patty Murray of Washington
Senator Jack Reed of Rhode Island
Senator Elizabeth Warren of Massachusetts
Senator Sheldon Whitehouse of Rhode Island
SUMMARY OF ARGUMENT
In the nearly six decades since Congress enacted
the Civil Rights Act of 1964, this Court consistently
has recognized that achieving diversity in higher
education is a compelling governmental interest, and
that some consideration of the racial and ethnic
background of individuals applying to colleges and
universities can be given when necessary to achieve
that compelling end. See Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 272–76, 311–17 (1978) (opinion
of Powell, J.); Grutter v. Bollinger, 539 U.S. 306, 325–
33 (2003); Fisher v. Univ. of Tex. at Austin, 579 U.S.
365, 373–74 (2016).
Congress has been equally consistent in upholding
these principles. Congress repeatedly has endorsed
the importance of diversity in higher education, as
3
well as the importance and propriety of race-conscious
programs in other aspects of American life.
Congress’s efforts include its enactment of Title VI of
the Civil Rights Act of 1964.
Departing from consistent precedent and
established legislative practice would be unwarranted
in this case. In the many decades since Congress
enacted Title VI and this Court decided Bakke,
hundreds of public and private institutions of higher
education in the United States have, like Respondents
here, relied on the principle that diversity in higher
education is a compelling governmental interest.
There is no valid reason to overrule precedent in these
cases. Petitioner’s assertions that Respondents are
engaged in racial balancing or intentional
discrimination against Asian Americans are
unfounded on this record, and, in any event, provide
no basis for overruling Bakke, Grutter, and its
progeny.
ARGUMENT
I. Both This Court And Congress Have
Consistently Recognized That Diversity In
Higher
Education
Is
A
Compelling
Governmental Interest.
Both this Court and Congress have long recognized
that there is a compelling governmental interest in
achieving diversity in American colleges and
universities. The considered views of these branches
of the federal government should be maintained in
this case.
4
A. This Court has long recognized that
diversity in higher education is a
compelling governmental interest.
For more than four decades, this Court has
recognized that colleges and universities have a
compelling interest in the educational benefits that
result from enrolling students from a diverse range of
backgrounds.
In Regents of the University of California v. Bakke,
Justice Powell, who provided the critical fifth vote for
the Court’s judgment, explained that “attainment of a
diverse student body . . . clearly is a constitutionally
permissible goal for an institution of higher
education,” particularly given that the “academic
freedom” of such institutions “long has been viewed as
a special concern of the First Amendment.” 438 U.S.
265, 311–12 (1978) (opinion of Powell, J.). Drawing
students from across a range of backgrounds is
“widely believed to . . . promote[]” the “atmosphere of
speculation, experiment and creation [] so essential to
the quality of higher education.” Id. at 312 (quotation
marks omitted). By maintaining a student body that
is diverse in numerous ways—including not only race,
but also sex, background, geography, and interests—
colleges and universities create opportunities for
students “to learn from their differences and to
stimulate one another to reexamine their most deeply
held assumptions about themselves and their world,”
from “unplanned, casual encounters” as in the
classroom. Id. at 312 n.48 (quoting William G. Bowen,
Pres., Princeton Univ., Admissions and the Relevance
of Race, Princeton Alumni Weekly 7, 9 (1977)).
Justice Powell explained that “wide exposure to the
5
ideas and mores of students as diverse as this Nation
of many peoples” is essential to training future leaders
and professionals to “serve a heterogeneous
population.” Id. at 313–14 (quotation marks omitted).
Justice Powell singled out Respondent Harvard
University’s undergraduate admissions program as a
model of a constitutionally permissible system
“flexible enough to consider all pertinent elements of
diversity in light of the particular qualifications of
each applicant.” Id. at 317.
In Grutter v. Bollinger, the Court expressly
“endors[ed] [Justice Powell’s] view that student body
diversity is a compelling state interest that can justify
the use of race in university admissions.” 539 U.S.
306, 325 (2003). The Court explained that there is “a
constitutional dimension, grounded in the First
Amendment, of educational autonomy,” and that
“attaining a diverse student body [can lie] at the heart
of [a university or graduate school’s] proper
institutional mission.” Id. at 329. Diversity in higher
education can produce “substantial” “educational
benefits” for the campus community as a whole. Id. at
330.
Interaction with people from different
backgrounds “promotes cross-racial understanding,
helps to break down racial stereotypes, and enables
students to better understand persons of different
races.”
Ibid. (quotation marks and alteration
omitted). It facilitates “livelier, more spirited, and
simply more enlightening and interesting” classroom
discussions, with appreciably positive results on
learning outcomes. Ibid.
The Court also recognized that diversity in higher
education broadly benefits society.
American
6
businesses competing in world markets require
employees with skills that “can only be developed
through exposure to widely diverse people, cultures,
ideas, and viewpoints.” Ibid. Echoing Justice Powell,
the Court observed that the legitimacy of tomorrow’s
leaders depends in part on their reflecting the rich
diversity of the populations they serve. See id. at 331–
33.
Nowhere is this more obvious than in the Nation’s
armed forces, where diversity is “essential to the
military’s ability to fulfill its principal mission to
provide national security.” Id. at 331 (quoting Br. of
Lt. Gen. Julius W. Becton, Jr., et al. as Amici Curiae,
Grutter v. Bollinger, 2003 WL 1787554, at *5 (U.S.
filed Jan. 21, 2003)). Because the military recruits its
officers from colleges and universities—namely the
service academies and Reserve Officer Training Corps
programs at civilian institutions—higher education
diversity is critical to military effectiveness. Ibid.
Six years ago, the Court reiterated that the
Constitution permits state colleges and universities to
consider race among other factors in constituting a
diverse student body. See Fisher v. Univ. of Tex. at
Austin, 579 U.S. 365 (2016) (Fisher II). Fisher upheld
the constitutionality of the University of Texas at
Austin’s hybrid admissions scheme, under which most
students were admitted based on their class rank at
in-state schools, while a quarter or less of the class
was admitted based on a holistic assessment that
considered, but did not depend on, students’ race. Id.
at 373–74. After first remanding for the Fifth Circuit
to reconsider whether the University had
demonstrated that consideration of race was
7
necessary to achieving the educational benefits
resulting from diversity, Fisher v. Univ. of Tex. at
Austin, 570 U.S. 297, 313–14 (2013) (Fisher I), the
Court concluded that the University’s program
satisfied strict scrutiny, Fisher II, 579 U.S. at 385. In
reaching that conclusion, the Court noted the
University’s “reasoned, principled explanation” of
why consideration of race in admissions was
necessary to achieve the many benefits of a diverse
student body, which, in the University’s view,
included “the destruction of stereotypes, the
promotion of cross-racial understanding, the
preparation of a student body for an increasingly
diverse workforce and society, and the cultivation of a
set of leaders with legitimacy in the eyes of the
citizenry.” Fisher II, 579 U.S. at 381–82 (quotation
marks omitted and alterations adopted).
In short, the Court has long recognized that
diversity in higher education is a compelling interest
that colleges and universities may pursue as an aspect
of “[t]he freedom of a university to make its own
judgments as to education.” Grutter, 539 U.S. at 329
(quoting Bakke, 438 U.S. at 312 (opinion of Powell,
J.)). Further, in pursuing that interest, the Court has
determined that colleges and universities properly
may consider race as one factor in holistic,
individualized admissions processes. See id. This
Court’s longstanding approach is sound and should be
applied in these cases.
8
B. Congress has also recognized the benefits
achieved by diversity in higher education.
The Court’s recognition that diversity in higher
education is a compelling governmental interest is
confirmed by decades of legislation by Congress
recognizing and furthering this compelling goal.
1. Congress has acted to promote
diversity in higher education.
Congress could have responded to this Court’s
decisions by amending Title VI to forbid all raceconscious federally-funded action, but it consistently
has declined to do so, even when amending Title VI in
other significant respects. See Rehabilitation Act
Amendments of 1986, Pub. L. No. 99–506, § 1003, 100
Stat. 1807, 1845 (codified at 42 U.S.C. § 2000d-7)
(abrogating States’ Eleventh Amendment immunity
in suits under Title VI).2 Indeed, Congress has done
much more than simply remain silent in response to
this Court’s decisions. It repeatedly has enacted
legislation aimed at increasing diversity, including
racial diversity, in higher education. For example, the
For examples of legislation responding to this Court’s decisions,
see, e.g., Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111–2,
123 Stat. 5 (codified at, inter alia, 29 U.S.C. § 626(d) and 42
U.S.C. § 2000e-5(e)(3)) (responding to Ledbetter v. Goodyear Tire
& Rubber Co., 550 U.S. 618 (2007)); Religious Freedom
Restoration Act, Pub. L. No. 103–141, 107 Stat. 1488 (1993)
(codified at 42 U.S.C. § 2000bb et seq.) (responding to, inter alia,
Emp. Div. v. Smith, 494 U.S. 872 (1990)); Civil Rights Act of
1991, Pub. L. No. 102–166, 105 Stat. 1071 (“in large part a
response to a series of decisions of this Court interpreting the
Civil Rights Acts of 1866 and 1964,” Landfraf v. USI Film Prods.,
511 U.S. 244, 250 (1994)).
2
9
College Cost Reduction and Access Act, Pub. L. No.
110–84, 121 Stat. 784 (2007), allocated $100 million to
(among other things) “increase the number of
Hispanic and other low income students attaining
degrees in the fields of science, technology,
engineering, or mathematics.” Id. § 771, 121 Stat. 818
(codified at 20 U.S.C. § 1067q(b)(2)(B)(i)). The Act
also appropriated $750 million to fund grants to
States
for
students
“underrepresented
in
postsecondary education,” including need-based grant
aid and counseling aimed at increasing student
applications and retention. Id. § 802, 121 Stat. 813
(codified at 20 U.S.C. § 1141(d)(2)(B)(i)).
Similarly, in 2008, Congress enacted the Higher
Education Opportunity Act, Pub. L. No. 110–315, 122
Stat. 3078, which created numerous programs for
promoting greater participation in higher education
by members of racial minority groups. While some of
these programs aimed to support institutions that
serve a high percentage of minority students and
students from low-income backgrounds, e.g., id. § 502,
122 Stat. 3331 (codified at 20 U.S.C. § 1102 et seq.),
others were aimed at fostering diversity in colleges
and universities more broadly, e.g., id. § 801, 122 Stat.
3392–96 (codified at 20 U.S.C. § 1161g) (Patsy T.
Mink Fellowship Program “to provide . . . awards to
assist highly qualified minorities and women to
acquire the doctoral degree, or highest possible degree
available, in academic areas in which such individuals
are underrepresented”). The Act also required
colleges and universities to provide prospective and
enrolled students with greater transparency about
“student body diversity,” including the percentage of
students who “are a self-identified member of a major
10
racial or ethnic group.” Id. § 488, 122 Stat. 3294
(codified at 20 U.S.C. § 1092(a)(1)(Q)).
In addition, Congress repeatedly has enacted
legislation aimed at increasing the diversity of
students studying science, technology, engineering,
and mathematics (“STEM”) and other fields
important to U.S. economic growth and national
security. For example, Congress has directed the
National Science Foundation, in awarding grants to
colleges to promote “advanced-technology fields,” to
prioritize applications that include plans for
recruiting and enrolling “women and other
underrepresented populations in STEM fields.” 42
U.S.C. § 1862i(d)(2)(D). More recently, Congress,
recognizing a shortage in qualified STEM workers
and reflecting its determination that “historically[]
underrepresented populations are the largest
untapped STEM talent pools in the United States,”
directed the National Science Foundation to “continue
to support programs designed to broaden
participation of underrepresented populations”—
including women and members of minority racial
groups—“in STEM fields.” 42 U.S.C. § 1862s-5(a)(1),
(b)(3), (c)–(d); see also 15 U.S.C. § 7404(a)(1)
(establishing grants to institutions of higher
education to improve recruitment of members of
underrepresented groups for computer and networksecurity study programs); 50 U.S.C. § 1902
(authorizing the Department of Defense to consider
whether the distribution of fellowships to enable
college students to work in national security fields or
study languages of particular importance to U.S.
national security “reflects the cultural, racial, and
11
ethnic diversity of the population of the United
States”).
As these examples demonstrate, Congress has
determined that increasing the participation of
members of underrepresented racial and ethnic
groups in key fields will promote economic
competitiveness and national defense.
2. Congress has fostered diversity at
military service academies.
Congress’s recognition of the value and need for
diversity in higher education is reflected with special
clarity in its treatment of military service
academies—i.e., colleges operated directly by the
Federal Government in which diversity is critical to
national interests.
Across presidential administrations, the Armed
Forces have viewed the diversity of the officer corps,
as well as of enlisted personnel, as essential to the
effective and efficient fulfillment of their mission to
safeguard the Nation and protect its interests abroad.
Each service academy has prioritized creating diverse
communities of cadets and midshipmen, who, along
with ROTC graduates, form the core of the Armed
Forces’ officer corps. West Point, for example, “admits
a racially, ethnically, and geographically diverse
Corps of Cadets so as to reflect the racial and ethnic
composition of [its] enlisted force and our country” and
“believe[s] a diverse student body results in a superior
education for [its] cadets and in phenomenal leaders
12
for our nation’s enlisted soldiers.” 3 The Naval
Academy has identified as its “Strategic Imperative
One” the recruitment, admission, and graduation of a
“diverse and talented Brigade of Midshipmen.” 4 And
each service academy has established an office of (or
committee on) diversity and inclusion.5
Congress has long supported these efforts.
Through appropriations, Congress funds not only
these diversity and inclusion initiatives, but also the
service academies’ affiliated one-year preparatory
schools, which the academies have long used as a
pipeline to increase the enrollment of racial and
ethnic minorities. 6 In addition, Congress recently
U.S. Military Academy West Point, Multi-Cultural by Design,
https://www.westpoint.edu/admissions/prospectivecadets/diversity (last visited July 31, 2022).
3
U.S.
Naval
Academy,
Strategic
Plan,
https://www.usna.edu/StrategicPlan/archives/20112020/strategic_imperatives.php (last visited July 31, 2022).
4
See U.S. Military Academy West Point, Office of Diversity,
Inclusion,
and
Equal
Opportunity
(ODIEO),
https://www.westpoint.edu/about/west-point-staff/office-ofdiversity (last visited July 31, 2022); U.S. Naval Academy, Office
of
Diversity,
Equity,
and
Inclusion,
https://www.usna.edu/Diversity/index.php (last visited July 31,
2022); U.S. Air Force Academy, Office of Diversity and Inclusion,
https://www.usafa.edu/about/culture-climate-diversity/
(last
visited July 31, 2022); U.S. Coast Guard Academy, Inclusion and
Diversity, https://www.uscga.edu/inclusion-and-diversity/ (last
visited July 31, 2022); U.S. Merchant Marine Academy,
Diversity, https://www.usmma.edu/diversity (last visited July
31, 2022).
5
See, e.g., GAO Report 03-1017, Military Education: DOD Needs
to Align Academy Preparatory Schools’ Mission Statements with
Overall Guidance and Establish Performance Goals at i (2003)
(“In accordance with DOD guidance and the service academies’
6
13
enacted legislation requiring greater transparency
concerning the racial, ethnic, and gender makeup of
the applicants, nominees, appointees, and enrolled
students at the service academies. See William M.
(Mac) Thornberry National Defense Authorization Act
for Fiscal Year 2021 (“NDAA FY21”), § 575, Pub. L.
No. 116–283, 134 Stat. 3388, 3645 (2021); see also
Coast Guard Academy Improvement Act, NDAA
FY21, div. G, title LVXXXII, subtitle E, §§ 8271–78.
In short, Congress has acted repeatedly to foster
diversity in institutions of higher education, including
military service academies, confirming this Court’s
recognition that there is a compelling national
interest in achieving this goal.
C. This Court Should Give Weight To The
Views
Of
The Political
Branches
Concerning The Compelling Need For
Diversity In Higher Education.
Congress’s repeated recognition that diversity in
higher education is vitally important is entitled to
significant weight. The Legislative Branch is, of
course, “a coequal branch of government whose
Members take the same oath [as Members of the
Court] to uphold the Constitution of the United
States.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981).
As the Court has explained, “[t]he judgment of the
Legislative Branch cannot be ignored or undervalued
simply because” a question is cast under the
expectations, the preparatory schools give primary consideration
for enrollment to enlisted personnel, minorities, women, and
recruited
athletes.”),
available
at
https://www.gao.gov/assets/gao-03-1017.pdf.
14
Constitution.
Columbia Broad. Sys., Inc. v.
Democratic Nat’l Comm., 412 U.S. 94, 103 (1973). In
particular, “courts must accord substantial deference
to the predictive judgments of Congress” in
determining the constitutionality of congressionally
approved acts. Turner Broad. Sys., Inc. v. F.C.C., 520
U.S. 180, 195 (1997). That is so because “[s]ound
policymaking often requires legislators,” rather than
judges, “to forecast future events and to anticipate the
likely impact of these events based on deductions and
inferences for which complete empirical support may
be unavailable.” Turner Broad. Sys., Inc. v. F.C.C.,
512
U.S.
622,
665
(1994).
“As
an
institution, . . . Congress is far better equipped than
the judiciary to ‘amass and evaluate the vast amounts
of data’ bearing upon . . . complex and dynamic”
issues that implicate the Constitution. Id. at 665–66
(quoting Walters v. Nat’l Ass’n of Radiation Survivors,
473 U.S. 305, 331, n.12 (1985)).
Those principles apply here. Higher education is a
complex subject that raises many issues that are best
addressed by Congress. Congress has addressed these
issues over many years, and repeatedly determined
that race-conscious programs are both appropriate
and necessary to further diversity in higher
education. The Court should not “substitute [its]
judgment of what is desirable for that of Congress, or
[its] own evaluation of evidence for a reasonable
evaluation by the Legislative Branch.” Rostker, 453
U.S. at 67–68.
That is particularly true where, as here, Congress
after careful study has determined that certain laws
further a compelling governmental interest. See, e.g.,
15
Oregon v. Mitchell, 400 U.S. 112, 230 (1970)
(acknowledging congressional determination that law
was not “reasonably related to any compelling state
interests”); Dunn v. Blumstein, 405 U.S. 330, 344
(1972) (same). The Court should reject the invitation
to second-guess its prior decisions especially when, as
here, they have been affirmed and reinforced by
Congress.
II. In Enacting Title VI Congress Sought to
Further, Not Prohibit, Race-Conscious
Measures Aimed at Advancing Equality of
Opportunity for Historically Disadvantaged
Groups.
Congress’s consistent and longstanding efforts to
foster diversity include its enactment of Title VI of the
Civil Rights Act of 1964.
As Representative Emanuel Celler, then
Chairman of the House Judiciary Committee and the
floor manager of the legislation in the House,
explained, Title VI was first and foremost designed “to
override . . . Federal assistance to racially segregated
institutions.” 110 Cong. Rec. 2467 (1964). Senator
Hubert Humphrey, the Senate floor manager,
similarly observed: “The practices of segregation or
discrimination, which Title VI seeks to end, are
unconstitutional” and “Title VI is simply designed to
insure that Federal funds are spent in accordance
with the Constitution and the moral sense of the
Nation.” Id. at 6544.
It is also important to recognize that Congress
enacted Title VI against a backdrop of Executive
16
Branch action seeking to promote equality of
opportunity for historically disadvantaged racial
groups, and that Congress intended Title VI to permit,
not prohibit, the Executive Branch’s efforts to root out
segregation and promote diversity throughout the
American economy by all means necessary.
A. Before and after Congress enacted Title
VI, the Executive Branch sought to
promote equality of opportunity for
historically
disadvantaged
groups,
including
through
“race-conscious”
means.
Shortly after his inauguration in January 1961,
President Kennedy announced “the policy of the
executive branch of the Government to encourage by
positive measures equal opportunity for all qualified
persons” contracting with it, Exec. Order No. 10925
(preface) (Mar. 6, 1961) (“EO 10925”), and included in
the same order a requirement that certain federal
“contractor[s] . . . take affirmative action to ensure
that applicants are employed . . . without regard to
their race, creed, color, or national origin,” id. § 301.7
Subsequent executive action made clear that “[t]he
only meaning which can be attributed to [EO 10925’s]
‘affirmative action’ language” is one that would
permit—as one necessary tool in the fight against
discrimination—“color-conscious” efforts intended to
secure equality of opportunity for disadvantaged
This “affirmative action” requirement initially applied to
federal procurement contracts; in June 1963, it was extended to
all federally assisted construction contracts. See Exec. Order No.
11114 (June 22, 1963).
7
17
groups. Contractors’ Ass’n of E. Pa. v. Sec’y of Labor,
442 F.2d 159, 173–74 (3d Cir. 1971); see also Assoc.
Gen. Contractors of Mass. v. Altshuler, 490 F.2d 9, 17
(1st Cir. 1973) (describing “federal affirmative action
programs” in which “race [could be used] as a criterion
of selection where the goal is equal opportunity”).
Notably, in June 1963, President Kennedy directed
Labor Secretary Willard Wirtz to promulgate
regulations under EO 10925 “requir[ing] that the
admission of young workers to apprenticeship
programs be on a completely nondiscriminatory
basis.”8 The envisioned rules were meant to address
the pressing problem whereby contractors looking for
highly-skilled laborers would frequently encounter a
lack of “qualified [Black] applicants,” because
numerous Black laborers “have never had
apprenticeship training because they have been
barred from the apprenticeship list[s].”9
At about the same time, civil rights-minded unions
running apprenticeship programs were attempting to
proactively address this shortage by commencing
affirmative action programs that focused on selecting
and training Black apprentices in particular. 10 The
President John F. Kennedy, Message on Civil Rights and Job
Opportunities (June 19, 1963), in Civil Rights: Hearings on H.R.
7152 Before the House Comm. on the Judiciary, 88th Cong., 1st
Sess., at 1452 (1963) (hereinafter “Hearings on H.R. 7152”).
8
Hearings on H.R. 7152, supra note 8, at 1797 (testimony of
George Meany, President of the AFL-CIO).
9
Hearings on H.R. 7152, supra note 8, at 1754 (testimony of
Joseph M. Bar, Mayor of Pittsburgh) (discussing agreement
among unions running apprenticeship programs to “take an
10
18
Department of Labor, in promulgating the
apprenticeship rules requested by President Kennedy
under EO 10925, took specific account of the need for
these affirmative action programs.
While the
promulgated rules generally mandated that the
selection of “apprentices [be] on the basis of
qualifications alone,” they also created an exception
whereby less-qualified apprentices could be selected if
“the selections otherwise made would themselves
demonstrate that there is equality of opportunity” in
view of the “racial and ethnic composition of the
[apprenticeship] program.” 28 Fed. Reg. 11,313,
11,313–14 (Oct. 22, 1963) (proposed rule) (emphasis
added); see 28 Fed. Reg. 13,775, 13,775–76 (Dec. 18,
1963) (final rule) (same). In so doing, the Department
of Labor’s rules recognized that generally mandating
merit-only
apprenticeship
selections—while
specifically permitting additional selections meant to
secure “equality of opportunity” for members of
disadvantaged racial groups—was consistent with
President Kennedy’s directive to eliminate the
discrimination against Black laborers that pervaded
these apprenticeship programs.
appropriate number of . . . qualified nonwhite applicants.); see
also id. at 1797–98 (testimony of George Meany, President of the
AFL-CIO) (describing affirmative “campaign[s] put on by the
people who run apprentice training programs” “to bring Negros
into [such] apprentice training”).
19
B. Congress intended Title VI to permit, not
prohibit, the Executive Branch’s efforts to
achieve equality of opportunity for
disadvantaged groups, including through
“race-conscious” means.
In debating the Civil Rights Act of 1964, Congress
was well aware of President Kennedy’s and Labor
Secretary Wirtz’s actions. Testimony about the
private sector’s efforts to promote affirmative action
in apprenticeship programs was presented to the
House Judiciary Committee during the hearings on
H.R. 7152 (the bill that became the Civil Rights Act).11
In addition, members of both the House and Senate
took note of the “apprenticeship standards”
promulgated by Secretary Wirtz. See H.R. Rep. 88–
914, at 38 (1963); 110 Cong. Rec. 6871 (1964) (Sen.
Stennis).
With awareness of these ongoing efforts, Congress
did not expressly define the “discrimination”
prohibited by § 601 of Title VI, but instead (as this
Court has held) made clear that Congress intended
§ 601 to “proscribe[] only those racial classifications
that would violate the Equal Protection Clause or the
Fifth Amendment.” Alexander v. Sandoval, 532 U.S.
275, 280–81 (2001) (quoting Bakke, 438 U.S. at 287
(opinion of Powell, J.); and citing Bakke, 438 U.S. at
325, 328, 352 (opinion of Brennan, J.)). Thus, with
respect to Title VI, Congress “specifically eschewed
any static definition of discrimination in favor of
broad language that could be shaped by experience,
administrative necessity, and evolving judicial
11
See Hearings on H.R. 7152, supra note 8, at 1754, 1797–98.
20
doctrine.” Bakke, 438 U.S. at 337 (opinion of Brennan,
J.).
Significantly, Congress in the text of § 602 of Title
VI then empowered “[e]ach Federal department and
agency” to “effectuate the provisions of section
601 . . . by issuing rules, regulations, or orders of
general applicability.” Civil Rights Act of 1964, Pub.
L. No. 88–352, § 602, 78 Stat. 241, 252–53. In so
doing, Congress “invest[ed] federal departments and
agencies with the power to define the discrimination
forbidden by” § 601.12 Charles F. Abernathy, Title VI
and the Constitution: A Regulatory Model for Defining
‘Discrimination’, 70 Geo. L. J. 1, 3, 9, 29–32 (1981); see
also Bakke, 438 U.S. at 381–82 (White, J., concurring
in part and dissenting in part) (observing that it is
“evident from the face of § 602 that Congress intended
the departments and agencies to define and to refine,
by rule or regulation, the general proscription of
§ 601” (internal citation omitted)). 13 As Attorney
This understanding of § 602 can be reconciled with the notion
that § 601 prohibits only forms of discrimination that are
proscribed by the Equal Protection Clause. See Alexander, 532
U.S. at 286 (majority opinion) (“[A]ssum[ing] for purposes of this
decision that § 602 confers the authority to promulgate”
regulations that do not track precisely the contours of the Equal
Protection Clause); Bakke, 438 U.S. at 338–39 (Brennan, J.,
concurring) (advancing the
constitutional-incorporation
understanding of § 601, while simultaneously advocating that
Title VI “provid[ed] the Executive Branch with considerable
flexibility in interpreting and applying [§ 601’s] prohibition on
racial discrimination”).
12
See also Guardians Ass’n v. Civ. Serv. Comm’n of City of New
York, 463 U.S. 582, 622–23 (1983) (Marshall, J., dissenting);
Alexander v. Sandoval, 532 U.S. 275, 294 n.19 (2001) (Stevens,
13
21
General Kennedy explained during the hearings that
preceded the passage of the statute, federal agencies
in charge of a “particular program” will look to § 601’s
nondiscrimination principle “as a general criterion to
follow, [and] will establish the rules that will be
followed in the administration of the program—so
that the recipients of the program will understand
what they can or cannot do.” 14
Congress affirmatively contemplated that agencies
would use their delegated flexibility under § 602 in a
manner that would not require prohibiting any
consideration of race in all circumstances. For
example, when Senator Johnston offered an
amendment that would expressly authorize federal
grantees to take race into account when placing
children in adoptive and foster homes, Senator
J. dissenting).
Hearings on H.R. 7152, supra note 8, at 2740. Senator
Humphrey similarly observed that the “large number of
programs, each with its own special problems and patterns of
administration” made “it wise to leave the agencies a good deal
of discretion as to how they will act.” 110 Cong. Rec. 6324 (1964);
see also id. at 5612 (Sen. Ervin) (“What constitutes unequal or
unfair treatment? Section 601 and section 602 of Title VI do not
say. They leave the determination of that question to the
executive department or agencies administering each
program[.]”).
Congress’s “concern for this broad
delegation inspired Congress to amend the pending bill to ensure
that all regulations issued pursuant to Title VI would have to be
approved by the President.” Alexander, 532 U.S. at 294 n.19
(Stevens, J. dissenting); see 110 Cong. Rec. 2499 (1964)
(amendment of Rep. Lindsay); ibid. (advocating that the
“latitude” of regulatory power vested by § 602 of Title VI
necessitated Lindsay’s amendment requiring Presidential
approval).
14
22
Pastore successfully opposed the amendment, which
was defeated by a 56–29 vote, on the ground that
there was no danger that federal administrators
would prohibit the use of racial criteria in such
circumstances. 15 110 Cong. Rec. 13695 (1964).
Legislators also observed that the use of raceconscious measures to further diversity in elementary
schools where there had been no segregation by law
would not be dictated by Title VI directly but instead
would be left to the judgment of state and local
communities. See, e.g., id. at 10920 (Sen. Javits); id.
at 5807, 5266 (Sen. Keating); id. at 13821 (Sens.
Humphrey and Saltonstall); id. at 6562 (Sen. Kuchel);
id. at 13695 (Sen. Pastore).
Notably in light of § 602’s express delegation of a
measure of interpretive authority to federal agencies
in enforcing § 601, numerous agencies within the
Executive Branch swiftly promulgated rules,
approved by the President, prohibiting discrimination
in
covered
programs
and
activities—but
simultaneously providing that “[a]n individual shall
not be deemed subjected to discrimination by reason
of his exclusion from the benefits of a program limited
by Federal law to individuals of a particular race,
color, or national origin different from his.” E.g., 29
Fed. Reg. 16,298, 16,299 (Dec. 4, 1964) (Department
of Health, Education, and Welfare). 16 Numerous
Senator Pastore repeatedly made clear that Title VI did not
outlaw the use of racial criteria in all circumstances. See 110
Cong. Rec. 2773–74, 6562 (1964).
15
See also, e.g., Housing and Home Finance Agency, 29 Fed. Reg.
16,280 (Dec. 4, 1964); Department of the Interior, 29 Fed. Reg.
16
23
federal programs were thereafter instituted which
were race-conscious in precisely this sense. 17 For its
part, the Department of Labor’s regulations
implementing Title VI and extending § 601’s
nondiscrimination requirement were careful not to
“supersede”
the
apprenticeship
standards
promulgated by Secretary Wirtz that permitted
affirmative action efforts by civil rights-minded
unions.18
In the wake of the Civil Rights Act of 1964, many
American colleges and universities instituted, for the
first time, affirmative-action programs focused on
admitting minority applicants.
Many of these
institutions were spurred to act by dramatic gaps in
minority educational attainment revealed by surveys
conducted by the Department of Health, Education
and Welfare (“HEW”) pursuant to the Civil Rights
Act.19 See Robert M. O’Neil, Preferential Admissions:
Equalizing the Access of Minority Groups to Higher
Education, 80 Yale L.J. 699, 700–01, 719 (1971); see
16,293 (Dec. 4, 1964); Department of State, 30 Fed. Reg. 314
(Jan. 9, 1965); National Aeronautics and Space Administration,
30 Fed. Reg. 301 (Jan. 9, 1965); Office of Economic Opportunity,
30 Fed. Reg. 325 (Jan. 9, 1965); Department of State, 30 Fed.
Reg. 314 (Jan. 9, 1965).
See Br. of United States as Amicus Curiae, Regents of Univ. of
Cal. v. Bakke, 1977 WL 204788, at *1–2, *1A (U.S. filed Sept. 19,
1977) (detailing “numerous minority-sensitive programs”
adopted by Congress and the Executive Branch during this era).
17
See 29 Fed. Reg. 16,284, 16,287 (Dec. 4, 1964) (exempting
“Executive Orders 10925 and 11114, and regulations issued
thereunder”).
18
See Civil Rights Act of 1964, Title IV, § 402, Pub. L. No. 88–
352, 78 Stat. 247 (1964) (requiring biannual surveys on
educational attainment).
19
24
also Br. of Columbia Univ. et al. as Amici Curiae,
Regents of the Univ. of Cal. v. Bakke, 1977 WL 188007,
at *3–4 & n.2 (U.S. filed June 7, 1977) (describing the
“minute minority fraction (no more than 1% in many
fields)” of students in higher education as having
prompted the decision by multiple universities to
“develop admissions programs designed to increase
minority enrollment”). In the judgment of these
American colleges and universities, these new
affirmative action programs were critical to the
achievement of equal opportunity in higher education.
See Br. of Columbia Univ. et al., supra, 1977 WL
188007, at *4 (absent “conscious treatment of an
applicant’s membership in a minority group,”
admissions decisions “would not yield a large enough
number of minority students to achieve substantial
diversity”). And, from that perspective, they had a
swift and remarkably effective impact: “largely from
the application of special or preferential admissions
policies” “the percentage of minority undergraduates
at many institutions doubled in the fall of 1968 and
doubled again the following year.” O’Neil, supra, at
700, 723.
The commencement of these affirmative action
programs by institutions of higher education shortly
after the Civil Rights Act’s passage prompted HEW
and the President to address their permissibility
under Title VI via administrative rulemaking.
Continuing the precedent set by Secretary Wirtz in
1963 of not quashing nascent affirmative action
efforts intended to promote diversity, HEW’s
regulations explained that “recipients are not
prohibited from taking affirmative action to overcome
the effects of conditions, which resulted in limited
25
program participation by persons of a particular race,
color, or national origin.” 20 38 Fed. Reg. 17,978,
17,978 (July 5, 1973) (final rule); see also 36 Fed. Reg.
23,494, 23,494–96 (Dec. 9, 1971) (proposed rule); 45
C.F.R. §§ 80.3(b)(6)(ii), 80.5(j).
In sum, Congress, in enacting Title VI, far from
“limiting Executive authority in defining appropriate
affirmative action” that may be taken by recipients of
federal funds, Contractors’ Ass’n, 442 F.2d at 173
(emphasis added), aimed to facilitate executive
flexibility in a manner solicitous of affirmative action,
see ibid.
III.
Overruling Grutter Is Not Warranted.
A. Strict scrutiny is the standard for raceconscious policies across all fields.
The Court should reject Petitioner’s demand that
it overrule Grutter.
Petr.Br. 49–71.
Grutter
maintained the Court’s longstanding doctrine that “all
racial classifications imposed by the government must
be analyzed by a reviewing court under strict
scrutiny.” 539 U.S. at 326 (quotation omitted). That
is, “such classifications are constitutional only if they
By 1977, twenty-six other federal agencies had adopted similar
Title VI regulations providing that “the consideration of race,
color, or national origin” is not prohibited “if the purpose and
effect [is] to remove the consequences of practices or
impediments which have restricted the availability of, or
participation in, [a] program or activity receiving Federal
financial assistance, on the grounds of race, color, or national
origin.” Supp’l Br. for United States as Amicus Curiae, Regents
of the Univ. of Cal. v. Bakke, 1977 WL 189556, at *16 n.14 (filed
Nov. 16, 1977) (detailing these regulations).
20
26
are narrowly tailored to further compelling
governmental interests.” Ibid. Grutter emphasized
that its analysis was “no less strict” than for any other
context. Id. at 328. Indeed, Grutter’s application of
strict scrutiny was no different from the Court’s
application of strict scrutiny in other cases. See
Johnson v. California, 543 U.S. 499, 515 (2005)
(applying strict scrutiny to racial classifications made
by the California Department of Corrections).
Nor has the Court strayed from its precedents by
“giving a degree of deference to a university’s
academic decisions, within constitutionally prescribed
limits,” in recognition of the fact that there are
“complex educational judgments in [this] area that
lie[] primarily within the expertise of the university.”
Grutter, 539 U.S. at 328. The Court’s approach here
is consistent with its precedents holding elsewhere
that “strict scrutiny does take relevant differences
into account—indeed, that is its fundamental
purpose.” Adarand Constructors, Inc. v. Peña, 515
U.S. 200, 228 (1995) (internal quotation omitted).
“The point of carefully examining the interest
asserted by the government in support of a racial
classification, and the evidence offered to show that
the classification is needed, is precisely to distinguish
legitimate from illegitimate uses of race in
governmental decisionmaking.” Ibid.; see also
Johnson, 543 U.S. at 515 (“Prisons are dangerous
places, and the special circumstances they present
may justify racial classifications in some contexts.
Such circumstances can be considered in applying
strict scrutiny, which is designed to take relevant
differences into account.” (emphasis added)).
27
Such deference, given “within constitutionally
prescribed limits,” Grutter, 539 U.S. at 328, is by no
means absolute. Indeed, in Grutter, the Court
conducted a searching analysis of the University of
Michigan Law School’s admissions policy.
First, the Court recognized the compelling and
permissible nature of the Law School’s goal to “enroll
a critical mass of minority students . . . [a
concept] defined by reference to the educational
benefits that diversity is designed to produce,” while
explaining that a different goal of “assur[ing] within
its student body some specified percentage of a
particular group merely because of its race or ethnic
origin”—what the Court called “racial balancing”—
would be “patently unconstitutional.” Id. at 329–30
(internal quotation omitted).
Second, the Court concluded that the benefits of
diversity advanced by the Law School’s policy were
“substantial,” based on the factual findings of the
district court and the facts presented in the briefs of
various amici. Id. at 330; see also id. at 330-31
(explaining that the benefits of diversity are “not
theoretical, but real,” while referencing amicus briefs
from “major American businesses” and “high-ranking
retired officers and civilian leaders of the United
States military”).
Third, the Court recognized that its findings on
this score were consistent with its own precedents,
including Brown v. Board of Education, 347 U.S. 483
(1954); Sweatt v. Painter, 339 U.S. 629 (1950); and
Plyler v. Doe, 457 U.S. 202 (1982), which recognized
the importance of higher education for “all individuals
28
regardless of race or ethnicity,” and the fact that “[i]n
order to cultivate a set of leaders with legitimacy in
the eyes of the citizenry, it is necessary that the path
to leadership be visibly open to talented and qualified
individuals of every race and ethnicity.” Grutter, 539
U.S. at 331–33.
Fourth, the Court conducted a searching analysis
to conclude that the Law School’s admissions program
“bears the hallmarks of a narrowly tailored plan.” Id.
at 334–43.
Thus, there was nothing “less strict” about the
Court’s application of strict scrutiny in Grutter. That
decision was thorough, well-reasoned, and correct.
B. Overruling Grutter would represent an
unjustified departure from principles
of stare decisis.
Principles of stare decisis weigh against overruling
Grutter. “Stare decisis ‘promotes the evenhanded,
predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and
contributes to the actual and perceived integrity of the
judicial process.’” Gamble v. United States, 139 S. Ct.
1960, 1969 (2019) (quoting Payne v. Tennessee, 501
U.S. 808, 827 (1991)).
In practice, this means the Court “demands a
special justification” to overturn precedent, as “stare
decisis always requires ‘reasons that go beyond mere
demonstration that the overruled opinion was wrong,’
for ‘otherwise the doctrine would be no doctrine at
all.’” Ramos v. Louisiana, 140 S. Ct. 1390, 1414 (2020)
(Kavanaugh, J., opinion concurring in part and
29
concurring in judgment) (quoting Hubbard v. United
States, 514 U.S. 695, 716 (1995) (Scalia, J., concurring
in part and concurring in the judgment)); see also
Dickerson v. United States, 530 U.S. 428, 443 (2000)
(similar).
No such special justification exists here. Contrary
to the suggestions of Petitioner and various amici, the
carefully limited admissions program that the Court
upheld in Grutter has worked not only at Harvard and
UNC but across thousands of college admissions
classes over the course of decades. Tellingly, every
university or college that has filed an amicus brief in
these cases (as well as member organizations that
represent universities and colleges) has done so in
support of Harvard and UNC and not one has
pronounced Grutter unworkable.21
Moreover, “[c]onsiderations in favor of stare decisis
are at their acme” when private institutions and
individuals have “reliance interests” in the
maintenance of precedent, Payne, 501 U.S. at 828, and
also where (as here) Congress “has acted in reliance”
on the Court’s decision, Hilton v. S.C. Pub. Rvs.
Comm’n, 502 U.S. 197, 202 (1991). Grutter, along
with Bakke, Fisher, and Gratz v. Bollinger, 539 U.S.
244 (2003), have not only resulted in repeated
legislation by Congress over the course of decades that
recognizes diversity as a compelling interest, see
See Students for Fair Admissions v. Harvard, No. 20–1199
(U.S.); Students for Fair Admissions v. Univ. of N.C., No. 21–707
(U.S.); Students for Fair Admissions v. Harvard, No. 19–2005
(1st Cir.); Students for Fair Admissions v. Harvard, No. 14-cv14176 (D. Mass.); Students for Fair Admissions v. Univ. of N.C.,
No. 14-cv-954 (M.D.N.C.).
21
30
supra Parts I.B., II, but these precedents have also
“invited colleges and universities to rely on the
permissibility of a holistic, flexible approach like
Harvard’s as a benchmark in structuring their own
admissions policies,” U.S.Br. 19. Countless colleges
and universities throughout the United States have
accepted that invitation—and, in so doing, relied on
the principle, long recognized by Congress, and
reaffirmed in Grutter, that diversity in higher
education is a compelling governmental interest.
Assertions that Respondents are engaged in
“racial balancing,” e.g., Petr.Br. 75–77, or that
Respondent Harvard is intentionally discriminating
against Asian American applicants, e.g., Petr.Br. 72–
75, are unfounded. The district courts below found
that Respondents were not using quotas or engaging
in “racial balancing” (or, in Harvard, intentionally
discriminating against Asian American applicants).22
And in Harvard, the First Circuit identified no clear
error in the district court’s findings. 23 Petitioner
See, e.g., Harv.Pet.App. 208 (“The [district court] finds that the
statistical evidence shows that Harvard has not imposed racial
quotas or otherwise engaged in impermissible racial
balancing.”); Harv.Pet.App. 261 (“[T]here is no evidence of any .
. . intentional discrimination on the part of Harvard . . . nor is
there evidence that any particular admissions decision was
negatively affected by Asian American identity.”); U.N.C.
Pet.App. 168 (“There is no evidence or claim that the University
[of North Carolina] uses a quota system to racially balance its
incoming class[.]”).
22
See, e.g., Harv.Pet.App. 64–65 (“The district court properly
concluded that Harvard does not utilize quotas and does not
engage in racial balancing.”); Harv.Pet.App. 98 (“The district
court did not clearly err in finding that Harvard did not
intentionally discriminate against Asian Americans.”).
23
31
attempts to second-guess those factual findings, but
offers no good reason for overturning them.
In any event, Petitioner’s arguments about the
lower courts’ findings of fact provide no basis for
overruling Grutter, which rejected as “patently
unconstitutional” both “racial balancing” as well as
any “classifications . . . motivated by illegitimate
notions of racial inferiority or simple racial politics.”
539 U.S. at 326, 330 (quotation omitted). Thus, even
if the Court were to disagree with the lower courts’
factual determinations, that disagreement would not
provide a basis for overruling Grutter.
CONCLUSION
For the foregoing reasons, the Court should affirm
the decision of the Court of Appeals in No. 20–1199
and the decision of the District Court in No. 21–707.
32
Respectfully submitted,
Mitchell A. Kamin
Neema Sahni
Alexander L. Schultz
Erin E. Moore
COVINGTON & BURLING LLP
1999 Avenue of the Stars
Los Angeles, CA 90067
Conrad Scott
Robert A. Long, Jr.
Counsel of Record
Eric Chung
COVINGTON & BURLING LLP
850 Tenth Street, NW
Washington, DC 20001
(202) 662-6000
rlong@cov.com
COVINGTON & BURLING LLP
620 8th Avenue
New York, NY 10018
August 1, 2022
Counsel for Amici Curiae
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