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

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

PRESIDENT & FELLOWS OF HARVARD COLLEGE,

Respondent.

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

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 AMERICAN FEDERATION OF

TEACHERS AS AMICUS CURIAE IN SUPPORT

OF RESPONDENTS

Rhonda Weingarten

David J. Strom

AMERICAN FEDERATION

OF TEACHERS

555 New Jersey Ave. N.W.

Washington, DC 20001

(202) 393-7472

Kevin K. Russell

Counsel of Record

Kathleen Foley

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

kr@goldsteinrussell.com

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICUS ............................................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 1

ARGUMENT ................................................................ 3

Ensuring Equal Access To Educational

Opportunities Is A Compelling State Interest ...... 3

A. Diverse Educational Experiences

Benefit All Students ....................................... 4

B. Access To Quality Higher Education

Is Particularly Important For

Students Of Color ........................................... 5

C. Society Benefits When Educational

Opportunities Are Widely Accessible ............. 7

1. Improving Access To Higher

Education Decreases Racial

Stratification Of The Professions............. 7

2. Diversity In Education Promotes

Racial Harmony ...................................... 11

II. The Compelling Interest In Achieving

Educational Diversity Has Not Faded Away

With The Passage Of Time ................................. 12

III. Race-Conscious Admissions Programs Remain

Necessary To Ensure An Even Playing Field .... 15

IV. Race-Neutral Alternatives Don’t Provide The

Same Benefits ...................................................... 18

CONCLUSION .......................................................... 22

TABLE OF AUTHORITIES

Cases

Grutter v. Bollinger,

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

Constitutional Provisions

Cal. Const. art. I, § 31................................................ 19

Rules

Sup. Ct. R. 37.6 ............................................................ 1

Other Authorities

Jaison R. Abel & Richard Deitz, Do the

Benefits of College Still Outweigh the

Costs?, 20 Current Issues Econ. & Fin.,

no. 3, 2014, https://papers.ssrn.com/sol3/

papers.cfm? abstract_id=2477864 ........................... 6

Marcella Alsan et al., Does Diversity Matter

for Health? Experimental Evidence from

Oakland, 109 Am. Econ. Rev. 4071 (2019),

https://www.aeaweb.org/articles?id=

10.1257/aer.20181446 ...................................... 10, 11

Anthony Lising Antonio et al., Research

Report: Effects of Racial Diversity on

Complex Thinking in College Students,

15 Psych. Sci. 507 (2003),

https://pubmed.ncbi.nlm.nih.gov/

15270993/ ................................................................. 5

iii

Jessica Bartlett, Nursing Shortage at

Hospitals Leads to Multimillion-Dollar

Costs, Bos. Globe (Jul. 12, 2022),

https://www.bostonglobe.com/2022/07/12/

metro/nursing-shortage-hospitals-leadsmultimillion-dollar-costs/ ......................................... 9

Zachary Bleemer, Affirmative Action,

Mismatch, and Economic Mobility After

California’s Proposition 209 (Univ. of Cal.

Berkely Ctr. for Stud. in Higher Educ.,

Research & Occasional Paper Series

CSHE.10.2020, 2020),

https://cshe.berkeley.edu/publications/

affirmative-action-mismatch-andeconomic-mobility-after-california’sproposition-209 ................................................. 20, 21

Ulrich Boser et al., Ctr. for Am. Progress,

The Power of the Pygmalion Effect (Oct. 6,

2014), https://files.eric.ed.gov/fulltext/

ED564606.pdf ......................................................... 16

Mitchell J. Chang et al., The Educational

Benefits of Sustaining Cross-Racial

Interaction Among Undergraduates,

77 J. Higher Educ. 430 (2006) ........................... 4, 12

Melissa Clinedinst & Anna-Maria

Koranteng, Nat’l Ass’n for Coll. Admission

Counseling, 2017 State of College

Admission, https://www.nacacnet.org/

globalassets/documents/publications/

research/soca17final.pdf .................................. 15, 17

John Creamer, Poverty Rates for Blacks and

Hispanics Reached Historic Lows in 2019,

U.S. Census Bureau (Sept. 15, 2020),

https://www.census.gov/library/stories/

2020/09/poverty-rates-for-blacks-andhispanics-reached-historic-lows-in2019.html................................................................ 18

Stacy Dale & Alan B. Krueger, Estimating

the Return to College Selectivity over the

Career Using Administrative Earnings

Data (Nat’l Bureau of Econ. Rsch.,

Working Paper No. 17159, 2011),

https://www.nber.org/system/files/working

_papers/w17159/w17159.pdf .................................... 7

Linda Darling-Hammond, Inequality in

Teaching and Schooling: How Opportunity

is Rationed to Students of Color in

America, in The Right Thing to Do, the

Smart Thing to Do: Enhancing Diversity

in the Health Professions: Summary of the

Symposium on Diversity in Health

Professions in Honor of Herbert W.

Nickens, M.D. (2001),

https://www.ncbi.nlm.nih.gov/books/

NBK223640/ ........................................................... 17

Sean Darling-Hammond et al., Interracial

Contact at Work: Does Workplace Diversity

Reduce Bias, 24 Grp. Processes &

Intergroup Rels. 1114 (2021),

https://rascl.berkeley.edu/assets/files/

Hammond%20et%20al. _2020_GIPR.pdf .............. 12

Ezekiel J. Dixon-Román et al., Race, Poverty

and SAT Scores: Modeling the Influences

of Family Income on Black and White

High School Students’ SAT Performance,

115 Tchrs. Coll. Rec., Apr. 2013,

https://www.researchgate.net/publication/

280232788_Race_Poverty_and_SAT_

Scores_Modeling_the_Influences_of_

Family_Income_on_Black_and_White

_High_School_Students'_SAT

_Performance.......................................................... 18

Lorelle L. Espinosa et al., Am. Council on

Educ., Race and Ethnicity in Higher

Education: A Status Report (2019),

https://vtechworks.lib.vt.edu/bitstream/

handle/10919/89187/

RaceEthnicityHighEducation.pdf?

sequence=1&isAllowed=y ........................................ 9

Sarah Gentrup et al., Self-Fulfilling

Prophecies in the Classroom: Teacher

Expectations, Teacher Feedback and

Student Achievement, 66 Learning &

Instruction, 2020,

https://www.sciencedirect.com/science/

article/pii/S095947521930177X ............................. 16

Patricia Gurin et al., Diversity and Higher

Education: Theory and Impact on

Educational Outcomes, 72 Harv. Educ.

Rev. 330 (2002),

https://www.iwu.edu/diversity/diversityhigher.pdf ............................................................. 4, 5

Lisa M. Haddad et al., Nursing Shortage,

Nat’l Libr. Med. (Feb. 22, 2022),

https://www.ncbi.nlm.nih.gov/books/

NBK493175/ ........................................................... 10

Peter Hinrichs, The Effects of Affirmative

Action Bans on College Enrollment,

Educational Attainment, and the

Demographic Composition of Universities,

94 Rev. Econ. & Stat. 712 (Aug. 2012),

https://direct.mit.edu/rest/article-abstract/

94/3/712/58001/The-Effects-of-AffirmativeAction-Bans-on-College .................................... 19, 20

Juliana Menasce Horowitz et al., Race in

America 2019: How Americans See the

State of Race Relations, Pew Rsch. Ctr.

(Apr. 9, 2019),

https://www.pewresearch.org/socialtrends/2019/04/09/how-americans-see-thestate-of-race-relations/ ............................................ 12

Michael Hout, Social and Economic Returns

to College Education in the United States,

38 Ann. Rev. Socio. 379 (2012),

http://www.collegetransitions.com/wpcontent/uploads/2014/05/hout-returns-tocollege-education.pdf ................................................ 6

Jessica S. Howell, Assessing the Impact of

Eliminating Affirmative Action in Higher

Education, 28 J. Lab. Econ. 113 (2010) ................. 21

Mark Huelsman, Dēmos, Social Exclusion:

The State of State U for Black Students

(Dec. 2018), https://www.demos.org/sites/

default/files/publications/SocialExclusion_

StateOf.pdf ....................................................... 13, 14

vii

Sylvia Hurtado, Linking Diversity and

Educational Purpose: How Diversity

Affects the Classroom Environment and

Student Development, in Diversity

Challenged: Evidence on the Impact of

Affirmative Action (Gary Orfield ed., 2001) ............ 4

Scott Jaschik, Expectations, Race and

College Success, Inside Higher Ed (Oct.

24, 2017),

https://www.insidehighered.com/news/

2017/10/24/study-finds-high-schoolteachers-have-differing-expectationsblack-and-white ................................................ 16, 17

Scott Jaschik, Recommendation Letters and

Bias in Admissions, Inside Higher Ed

(Oct. 22, 2018),

https://www.insidehighered.com/

admissions/article/2018/10/22/dorecommendation-letters-insert-biascollege-admissions-decisions.................................. 17

Lee Jussim & Jacquelynne S. Eccles,

Teacher Expectations II: Construction and

Reflection of Student Achievement, 63

J. Personality & Soc. Psych. 947 (1992),

https://sites.rutgers.edu/lee-jussim/wpcontent/uploads/sites/135/2019/05/JussimEccles-1992-JPSP.pdf ............................................ 16

viii

Raynard Kington et al., Increasing Racial

and Ethnic Diversity Among Physicians:

An Intervention to Address Health

Disparities?, in The Right Thing to Do, the

Smart Thing to Do: Enhancing Diversity

in the Health Professions: Summary of the

Symposium on Diversity in Health

Professions in Honor of Herbert W.

Nickens, M.D. (2001),

https://www.ncbi.nlm.nih.gov/books/

NBK223632/ ........................................................... 10

Yan Lau, Does Classroom Diversity Improve

Academic Outcomes? (Dec. 2016)

(unpublished), https://www.aeaweb.org/

conference/2017/preliminary/paper/

4kZNaAFy ................................................................ 4

Jasmín D. Llamas et al., The Case for

Greater Faculty Diversity: Examining the

Educational Impacts of Student-Faculty

Racial/Ethnic Match, 24 Race Ethnicity

& Educ. 375 (2021) ................................................... 8

Lauren Lumpkin et al., Flagship

Universities Say Diversity Is a Priority.

But Black Enrollment in Many States

Continues to Lag., Wash. Post (Apr. 18,

2021), https://www.washingtonpost.com/

education/2021/04/18/flagshipuniversities-black-enrollment/............................... 14

Dan P. Ly et al., Affirmative Action Bans

and Enrollment of Students from

Underrepresented Racial and Ethnic

Groups in U.S. Public Medical Schools,

175 Annals Internal Med. 873 (June 2022) .......... 20

Yingyi Ma & Gokhan Savas, Which Is More

Consequential: Fields of Study or

Institutional Selectivity?, 37 Rev. Higher

Educ. 221 (2014) ....................................................... 6

Tatiana Melguizo, Quality Matters:

Assessing the Impact of Attending More

Selective Institutions on College

Completion Rates of Minorities, 49 Rsch.

Higher Educ. 214 (2008) .......................................... 7

Nat’l Ctr. for Educ. Stat., Inst. of Educ. Sci.,

U.S. Dep’t of Educ., Condition of

Education, Racial/Ethnic Enrollment in

Public Schools, https://nces.ed.gov/

programs/coe/indicator/cge (last updated

May 2022) ................................................................. 9

Nat’l Ctr. for Educ. Stat., Inst. of Educ. Sci.,

U.S. Dep’t of Educ., NCES 2020-142,

Characteristics of Public and Private

Elementary and Secondary School

Teachers in the United States: Results

from the 2017-18 National Teacher and

Principal Survey (Apr. 2020),

https://nces.ed.gov/pubs2020/2020142.pdf .............. 8

Nat’l Ctr. for Educ. Stat., Inst. of Educ. Sci.,

U.S. Dep’t of Educ., NCES 2020-144,

The Condition of Education 2020 (2020),

https://nces.ed.gov/pubs2020/2020144.pdf ...... 13, 14

Thomas Peele & Daniel J. Willis, Dropping

Affirmative Action Had Huge Impact on

California’s Public Universities, EdSource

(Oct. 29, 2020), https://edsource.org/2020/

dropping-affirmative-action-had-hugeimpact-on-californias-publicuniversities/642437 ................................................ 19

Alexandra E. Rojek et al., Differences in

Narrative Language in Evaluations of

Medical Students by Gender and Underrepresented Minority Status, 34 J. Gen.

Internal Med. 684 (2019),

https://www.ncbi.nlm.nih.gov/pmc/articles/

PMC6502922/pdf/11606_2019_Article_

4889.pdf .................................................................. 15

Shomon Shamsuddin, Berkeley or Bust?

Estimating the Causal Effect of College

Selectivity on Bachelor’s Degree

Completion, 57 Rsch. Higher Educ. 795

(2016), https://link.springer.com/article/

10.1007/s11162-016-9408-0 ..................................... 6

Richard A. Smiley et al., The 2020 National

Nursing Workforce Survey, 12 J. Nursing

Regul. S14 (Supp. Apr. 2021)................................. 10

Timothy M. Snavely, A Brief Economic

Analysis of the Looming Nursing Shortage

in the United States, 34 Nursing Econ. 98

(2016) ........................................................................ 9

Rebecca Stout et al., The Relationship

Between Faculty Diversity and Graduation

Rates in Higher Education,

29 Intercultural Educ. 399 (2018) ........................... 8

U.S. Census Bureau, Census 2000 Shows

America’s Diversity (Mar. 12, 2001),

https://www.census.gov/newsroom/

releases/archives/census_2000/cb01cn61.

html#:~:text=

White%2075.1%20percent,Asian%203.6%

20percent ................................................................ 11

U.S. Census Bureau, Census Bureau Releases

New Educational Attainment Data (Feb.

24, 2022), https://www.census.gov/

newsroom/press-releases/2022/educationalattainment.html ............................................... 13, 14

U.S. Census Bureau, Educational

Attainment: 2000 (Aug. 2003),

https://www2.census.gov/library/

publications/decennial/2000/briefs/c2kbr24.pdf ...................................................................... 13

U.S. Census Bureau, QuickFacts: United

States (July 1, 2021),

https://www.census.gov/quickfacts/fact/

table/US/PST045221 .............................................. 11

U.S. Census Bureau, School Enrollment in

the United States: October 2017 - Detailed

Tables (Dec. 11, 2018),

https://www.census.gov/data/tables/2017/

demo/school-enrollment/2017-cps.html ................. 14

xii

David R. Williams et al., Race,

Socioeconomic Status, and Health:

Complexities, Ongoing Challenges, and

Research Opportunities, Annals N.Y.

Acad. Scis., 2010,

https://nyaspubs.onlinelibrary.wiley.com/

doi/10.1111/j.1749-6632.2009.05339.x ................... 11

Josh Zumbrun, SAT Scores and Income

Inequality: How Wealthier Kids Rank

Higher, Wall St. J. (Oct. 7, 2014),

https://www.wsj.com/articles/BL-REB28270 ...................................................................... 18

INTEREST OF AMICUS1

The American Federation of Teachers, an affiliate

of the AFL-CIO, is the largest higher-education union

in the United States. AFT represents 1.7 million

members in more than 3,000 local affiliates

nationwide. Its members include pre-K through 12thgrade teachers, paraprofessionals, and other schoolrelated personnel; higher education faculty and

professional staff; and approximately 80,000 early

childhood educators. AFT is committed to highquality education, economic opportunity, fairness, and

justice.

Educators are uniquely positioned to provide

insight on the benefits of student racial diversity.

Because of its keen interest in educational quality and

equality, amicus has a particular interest in providing

the Court with teachers’ evidence-backed perspective

on the value of racial diversity in higher education and

of the race-conscious admissions policies that make

that diversity possible.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Higher-education institutions that employ raceconscious admissions programs consider them vital to

the institutions’ educational missions. Those beliefs

are well founded—not just because they’re made from

Pursuant to Supreme Court Rule 37.6, counsel for amicus

curiae states that no counsel for any party authored this brief in

whole or in part, and no person other than amicus and its counsel

made a monetary contribution intended to fund the preparation

or submission of this brief. All parties in both cases have lodged

letters granting blanket consent to the filing of amicus curiae

briefs.

universities’ unique vantage point and with the benefit

of decades of experience, but because research

demonstrates the broad and numerous benefits of such

programs. Those benefits aren’t confined to students

of color; rather, all students benefit from contact and

intellectual engagement with peers of different races.

American society, too, benefits when higher education

is accessible to all. Education is the pathway to all

manner of professions that are vital to our economy

and society, from medicine to engineering and, indeed,

careers in education itself. There are also other, less

easily measured benefits to ensuring fair access and

robust participation in higher education by people of

all races and backgrounds, including promoting racial

harmony through integration of our college campuses.

Petitioner’s proposed blanket ban on any

consideration of race in admissions undermines these

compelling interests.

Because race-conscious

admission policies are a patchwork, with some States

having banned them outright, it’s possible to examine

the results of such bans and to envision a world in

which universities nationwide were prohibited from

bearing applicants’ race in mind when performing

holistic reviews. The results are unsettling, both for

students of color and for universities as they pursue

their educational missions.

The United States is only a few decades removed

from the era in which racial diversity on college

campuses was verboten, and it has enjoyed the gains

of educational diversity for an even shorter time.

Universities, students, and society still need the

benefits of the race-conscious admissions programs

this Court sanctioned in Grutter v. Bollinger, 539 U.S.

306 (2003). The judgments below should be affirmed,

and universities like Harvard and UNC that choose to

employ such programs should be permitted to continue

to do so.

ARGUMENT

For the bulk of this Nation’s history, vast portions

of our citizens were denied access to higher education

because of their race or sex. The result was a profound

stratification that extended beyond education to

nearly every aspect of our collective economic and

social lives. Even today, unequal access to education

persists, with ripple effects that stand in the way of

the kind of fair, diverse, and harmonious society the

Constitution was designed to foster. As this Court has

recognized, institutions of higher learning have a

compelling interest in promoting diversity in the ranks

of their students, not only to improve the opportunities

for students of color but also to enhance the

educational experience for all students. Doing so

furthermore produces broader benefits for a stillstratified economy and society. And it helps some of

the most important institutions in our society avoid

unwittingly perpetuating the racial segregation that

stains our history.

Ensuring Equal Access To Educational

Opportunities Is A Compelling State Interest.

Petitioners ask this Court to overrule Grutter v.

Bollinger, 539 U.S. 306 (2003), and impose a blanket

prohibition on any consideration of race in admissions

to institutions of higher education. The Court should

reject that invitation. Consideration of race in a

limited and constrained manner is vital to ensuring

equal access to education, promoting quality

educational experiences, and securing for the Nation

the vital benefits that flow from producing a body of

college graduates who truly represent America.

A. Diverse

Educational

Benefit All Students.

Experiences

As this Court noted in Grutter, a diverse student

body brings “substantial” educational benefits. 539

U.S. at 327-33. For example, studying with peers of

different races/ethnicities is positively correlated with

growth in critical thinking and problem-solving in

students of all races.2 Students with more frequent

cross-racial interaction show more gains in general

knowledge, critical thinking, and problem-solving

than those with less interaction.3 And a greater degree

of classroom racial diversity is associated with a

higher GPA at graduation.4

White students, as well as students of color,

benefit measurably from classroom and campus racial

diversity. Classroom racial diversity has been shown

in a national study to improve learning outcomes for

white college students.5 And white students’ critical

Sylvia Hurtado, Linking Diversity and Educational Purpose:

How Diversity Affects the Classroom Environment and Student

Development, in Diversity Challenged: Evidence on the Impact of

Affirmative Action 187, 192, 196-98 (Gary Orfield ed., 2001).

Mitchell J. Chang et al., The Educational Benefits of

Sustaining Cross-Racial Interaction Among Undergraduates,

77 J. Higher Educ. 430, 449 (2006).

Yan Lau, Does Classroom Diversity Improve Academic

Outcomes? 22 (Dec. 2016) (unpublished), https://www.aeaweb.org/

conference/2017/preliminary/paper/4kZNaAFy.

Patricia Gurin et al., Diversity and Higher Education:

Theory and Impact on Educational Outcomes, 72 Harv. Educ.

Rev. 330, 351-52 (2002), https://www.iwu.edu/diversity/diversityhigher.pdf.

thinking is improved by the presence of Black students

in discussion groups, as well as the presence of other

white members who reported having sustained contact

with racially diverse peers.6

Notably, the benefits of student racial diversity

aren’t confined to the classroom environment. In fact,

informal interactions among students of different

races is even more beneficial for college students than

classroom diversity, “accounting for higher levels of

intellectual engagement and self-assessed academic

skills” and consistently influencing “all educational

outcomes” for all four racial groups studied: Black,

Latinx, white, and Asian American7 students.8 There’s

also a strong correlation between white students’

critical thinking and their level of sustained contact

with peers from different racial groups.9

B. Access To Quality Higher Education Is

Particularly Important For Students Of

Color.

Access to higher education is particularly

important for young people of color. Higher education

remains a gateway to many of the most rewarding and

important professions. Any young person who dreams

of being a K-12 teacher, a member of the academe, an

architect or an engineer, a doctor or a nurse, an

See generally Anthony Lising Antonio et al., Research

Report: Effects of Racial Diversity on Complex Thinking in College

Students, 15 Psych. Sci. 507 (2003), https://pubmed.ncbi.nlm.nih.gov/

15270993/.

This study did not differentiate between Asian American

subgroups.

Gurin, supra note 5, at 351-52, 359.

See Antonio et al., supra note 6, at 509.

attorney or a judge or a Supreme Court police officer,

must first pursue and succeed in higher education.

So it’s no surprise that post-high-school education

is strongly correlated with economic success. More

education is correlated with more desirable jobs and

more earnings.10 Despite rising costs, undergraduate

education remains a good economic investment, with

every dollar spent on a college degree yielding about a

15% return in the form of higher wages.11 College

graduates are less likely to be unemployed than

others, and their periods of unemployment, when they

occur, are shorter.12

Access to highly selective schools is particularly

valuable for students of color. Institutional selectivity

increases earnings13 and graduation rates.14 For Black

and Latinx students, graduating from a prestigious

university increases earnings even after controlling for

Michael Hout, Social and Economic Returns to College

Education in the United States, 38 Ann. Rev. Socio. 379, 381-82

(2012),

http://www.collegetransitions.com/wp-content/uploads/

2014/05/hout-returns-to-college-education.pdf.

Jaison R. Abel & Richard Deitz, Do the Benefits of College

Still Outweigh the Costs?, 20 Current Issues Econ. & Fin., no. 3,

2014, at 1, 7, https://papers.ssrn.com/sol3/papers.cfm? abstract_

id=2477864.

Hout, supra note 10, at 381.

Yingyi Ma & Gokhan Savas, Which Is More Consequential:

Fields of Study or Institutional Selectivity?, 37 Rev. Higher Educ.

221, 235 (2014).

Shomon Shamsuddin, Berkeley or Bust? Estimating the

Causal Effect of College Selectivity on Bachelor’s Degree

Completion, 57 Rsch. Higher Educ. 795, 813 (2016),

https://link.springer.com/article/10.1007/s11162-016-9408-0.

other factors such as SAT scores.15 Such students are

also 31% more likely to complete their degrees if they

attend highly selective universities than if they attend

non-selective institutions (compared with 14% for

white students).16

C. Society Benefits When Educational

Opportunities Are Widely Accessible.

Students are not the only ones who benefit from

diversity in higher education. Society as a whole also

enjoys substantial rewards when our institutions of

higher learning produce graduates from every part of

our diverse population.

Improving

Access

Higher

Education

Decreases

Racial

Stratification Of The Professions.

America’s status as a cultural and racial melting

pot is one of its greatest strengths. In order to realize

the potential benefits of America’s inherent diversity,

it’s essential that those professions that enable people

to make a broad impact—professions that almost

Stacy Dale & Alan B. Krueger, Estimating the Return to

College Selectivity over the Career Using Administrative Earnings

Data 24 (Nat’l Bureau of Econ. Rsch., Working Paper No. 17159,

2011), https://www.nber.org/system/files/working_papers/w17159/

w17159.pdf. The same is not true for white students. See ibid.

Tatiana Melguizo, Quality Matters: Assessing the Impact of

Attending More Selective Institutions on College Completion Rates

of Minorities, 49 Rsch. Higher Educ. 214, 229 (2008); see also id.

at 225 (finding that Black and Latinx students attending the most

selective institutions have a 92% chance of graduating, whereas

those attending non-selective institutions have only a 45%

chance).

inevitably require higher education—are accessible to

people of color.

For example, there are few professions with

broader social impact than teaching itself, which also

demonstrably benefits when its members reflect the

broad racial diversity of this Nation. For example, it

has been shown that all students (white and of-color)

benefit from being taught by teachers of all races. 17

And it is particularly beneficial for students of color to

have the experience of being taught by teachers who

look like them.18 At the college level, a less racially

diverse faculty is associated with lower graduation

rates for almost all students.19 Meanwhile, having a

faculty member of the same race/ethnicity predicts

higher GPAs20 and higher graduation rates.21 But

many students still aren’t reaping the benefits of

teacher racial diversity: Over 79% of public K-12

teachers are white,22 as compared with 46% of their

Rebecca Stout et al., The Relationship Between Faculty

Diversity and Graduation Rates in Higher Education, 29

Intercultural Educ. 399, 411 (2018).

Ibid.

Jasmín D. Llamas et al., The Case for Greater Faculty

Diversity: Examining the Educational Impacts of Student-Faculty

Racial/Ethnic Match, 24 Race Ethnicity & Educ. 375, 384 (2021).

Ibid.; Stout et al., supra note 17, at 411.

Nat’l Ctr. for Educ. Stat., Inst. of Educ. Sci., U.S. Dep’t of

Educ., NCES 2020-142, Characteristics of Public and Private

Elementary and Secondary School Teachers in the United States:

Results from the 2017-18 National Teacher and Principal Survey

7 tbl.1 (Apr. 2020), https://nces.ed.gov/pubs2020/2020142.pdf.

students,23 and while nearly half of undergraduate

students are of color,24 higher-education faculty is 73%

white.25

To give but one more example, improving access

to higher education can also improve the diversity of

the medical profession, significantly benefiting all

Americans, particularly people of color. Part of the

cause of America’s historically high healthcare costs is

a persistent shortage of healthcare professionals.26

Increasing the number of students of color with college

degrees providing entrances to these professions

would help alleviate the shortages, improving access

to health care for everyone while helping constrain the

Nat’l Ctr. for Educ. Stat., Inst. of Educ. Sci., U.S. Dep’t of

Educ., Condition of Education, Racial/Ethnic Enrollment in

Public Schools, https://nces.ed.gov/programs/coe/indicator/cge

(last updated May 2022).

Lorelle L. Espinosa et al., Am. Council on Educ., Race and

Ethnicity in Higher Education: A Status Report 45 (2019),

https://vtechworks.lib.vt.edu/bitstream/handle/10919/89187/

RaceEthnicityHighEducation.pdf?sequence=1&isAllowed=y.

Id. at 249.

See, e.g., Timothy M. Snavely, A Brief Economic Analysis of

the Looming Nursing Shortage in the United States, 34 Nursing

Econ. 98, 99 (2016) (“[N]ursing shortages directly contribute to

increased health care costs.”); Jessica Bartlett, Nursing Shortage

at Hospitals Leads to Multimillion-Dollar Costs, Bos. Globe (Jul.

12, 2022), https://www.bostonglobe.com/2022/07/12/metro/nursingshortage-hospitals-leads-multimillion-dollar-costs/.

cost.27 In addition, just as students of color benefit

from seeing teachers who look like them, patients of

color experience tangible benefits from a more racially

diverse healthcare profession. For example, Black and

Latinx Americans report receiving better health care

from physicians of the same race.28 Indeed, patients of

color treated by doctors of the same race have been

shown more likely to receive preventative services and

needed medical care.29 Black men, in particular, are

more likely to use preventative services after meeting

with a doctor of the same race—and those doctors are

more likely to write additional notes,30 indicating more

attentiveness and the potential for better care. These

findings are important because of persistent

The demographics of registered nurses, for example, skew

heavily white: Nearly 81% of RNs are white. Richard A. Smiley

et al., The 2020 National Nursing Workforce Survey, 12

J. Nursing Regul. S14 (Supp. Apr. 2021). As the population of the

United States ages, demand for nurses is growing. Lisa M.

Haddad et al., Nursing Shortage, Nat’l Libr. Med. (Feb. 22, 2022),

https://www.ncbi.nlm.nih.gov/books/NBK493175/.

But the

median age of RNs is 52 years old, and one-fifth of respondent

nurses in a 2020 national survey planned to retire from nursing

within the next five years. Smiley et al., supra, at S12, S27.

Raynard Kington et al., Increasing Racial and Ethnic

Diversity Among Physicians: An Intervention to Address Health

Disparities?, in The Right Thing to Do, the Smart Thing to Do:

Enhancing Diversity in the Health Professions: Summary of the

Symposium on Diversity in Health Professions in Honor of Herbert

W. Nickens, M.D. 57, 81 (2001), https://www.ncbi.nlm.nih.gov/

books/NBK223632/.

Ibid.

See Marcella Alsan et al., Does Diversity Matter for Health?

Experimental Evidence from Oakland, 109 Am. Econ. Rev. 4071,

4074-75, 4092-93 (2019), https://www.aeaweb.org/articles?id=

10.1257/aer.20181446.

discrepancies in health outcomes among racial groups.

Mortality risk is consistently higher for Black and

Native Americans than for whites,31 and Black men

have the lowest life expectancy of any major

demographic group in the United States.32 And

childhood obesity is more prevalent among Black,

Latinx, and Native Americans than among whites and

Asian Americans.33

Diversity In Education Promotes

Racial Harmony.

Grutter observed that racial diversity in higher

education “better prepares students for an

increasingly diverse workforce and society.” 539 U.S.

at 330 (citation omitted). That is no less true, or

important, today.

America has become more racially diverse since

2003, not less,34 and racial tensions remain a serious

David R. Williams et al., Race, Socioeconomic Status, and

Health: Complexities, Ongoing Challenges, and Research

Opportunities, Annals N.Y. Acad. Scis., 2010, at 69, 71,

https://nyaspubs.onlinelibrary.wiley.com/doi/10.1111/j.17496632.2009.05339.x.

Alsan et al., supra note 30, at 4071.

Williams et al., supra note 31, at 72.

Compare U.S. Census Bureau, Census 2000 Shows

America’s Diversity (Mar. 12, 2001), https://www.census.gov/

newsroom/releases/archives/census_2000/cb01cn61.html#:~:text

=White%2075.1%20percent,Asian%203.6%20percent, with U.S.

Census Bureau, QuickFacts: United States (July 1, 2021),

https://www.census.gov/quickfacts/fact/table/US/PST045221.

problem.35 Schools are a principal place in which

young people are exposed to people who are different

from themselves, and such exposure reduces

interracial hostility. Much like workplace diversity

reduces bias,36 college students’ frequency of crossracial interaction has a demonstrated, significant

impact on their ability to accept different races and

cultures.37 Even students who themselves have few

interactions with people of other races have been

shown to be more accepting of racial diversity when

attending a racially diverse school.38

Now is hardly the time to diminish the

opportunities of all students to live some of the most

formative years of their lives working and learning

with people of all races.

II. The Compelling Interest In Achieving

Educational Diversity Has Not Faded Away

With The Passage Of Time.

The data show that race-conscious admissions

programs like those sanctioned in Grutter have done

real work. The college enrollment rates for 18- to 24-

E.g., Juliana Menasce Horowitz et al., Race in America 2019:

How Americans See the State of Race Relations, Pew Rsch. Ctr.

(Apr. 9, 2019), https://www.pewresearch.org/social-trends/2019/

04/09/how-americans-see-the-state-of-race-relations/ (“A majority

of Americans say race relations in the United States are bad, and

of those, about seven-in-ten say things are getting even worse.”).

Sean Darling-Hammond et al., Interracial Contact at Work:

Does Workplace Diversity Reduce Bias, 24 Grp. Processes &

Intergroup Rels. 1114, 1114 (2021), https://rascl.berkeley.edu/

assets/files/Hammond%20et%20al. _2020_GIPR.pdf.

Chang et al., supra note 3, at 449.

See id. at 449-50.

year-old Black and Latinx students increased between

2000 and 201839; the share of students of color at public

colleges has grown significantly, going from 1 of every

5 public college students in 1980 to nearly 1 in 2 in

201840; and the proportion of Black Americans over 24

years of age who have attained a bachelor’s degree or

higher has risen significantly since 2000.41 That is not,

however, a reason to abandon the tools that have

helped achieve these successes, for there is still much

work to be done.

The race-conscious admissions policies sanctioned

by Grutter are still necessary to close the educational

gap, because both college enrollment and degreeattainment rates are still racially skewed. The racial

demographics of college students are out of step with

the demographics of college-aged Americans: By share

of the U.S. population, Blacks and non-Hispanic

whites are underrepresented among 18-to-24-year-old

college students, while whites and Asians are

Nat’l Ctr. for Educ. Stat., Inst. of Educ. Sci., U.S. Dep’t of

Educ., NCES 2020-144, The Condition of Education 2020, at 125

(2020), https://nces.ed.gov/pubs2020/2020144.pdf.

Mark Huelsman, Dēmos, Social Exclusion: The State of State

U for Black Students 4 (Dec. 2018), https://www.demos.org/sites/

default/files/publications/SocialExclusion_StateOf.pdf.

See U.S. Census Bureau, Census Bureau Releases New

Educational Attainment Data (Feb. 24, 2022), https://www.census.gov/

newsroom/press-releases/2022/educational-attainment.html; U.S.

Census Bureau, Educational Attainment: 2000, at 5 (Aug. 2003),

https://www2.census.gov/library/publications/decennial/2000/

briefs/c2kbr-24.pdf.

overrepresented.42 Black, Latinx, Pacific Islander, and

Native American 18- to 24-year-olds are still less likely

to be enrolled in two- or four-year institutions than

white and Asian American students,43 and Black

Americans 25 and older are significantly less likely to

have a bachelor’s degree or higher than whites and

Asians.44

The racial gap is also significant at selective

schools in particular. For example, while Black

students make up roughly 16% of the total traditional

college-age population, less than 5% of enrollees at

flagship schools—large, selective public universities—

were Black in the 2015-2016 school year.45 In 2019,

public flagship schools in fifteen states—including

North Carolina—had at least a ten-point gap between

the percentage of Black public high-school graduates

in their States and the Black share of freshman who

enrolled in the fall.46

See U.S. Census Bureau, School Enrollment in the United

States: October 2017 - Detailed Tables tbl.4 (Dec. 11, 2018),

https://www.census.gov/data/tables/2017/demo/schoolenrollment/2017-cps.html.

The Condition of Education 2020, supra note 39, at 125.

Census Bureau Releases New Educational Attainment Data,

supra note 41.

Huelsman, supra note 40, at 3, 7.

Lauren Lumpkin et al., Flagship Universities Say Diversity

Is a Priority. But Black Enrollment in Many States Continues to

Lag., Wash. Post (Apr. 18, 2021), https://www.washingtonpost.com/

education/2021/04/18/flagship-universities-black-enrollment/.

III. Race-Conscious

Admissions

Programs

Remain Necessary To Ensure An Even

Playing Field.

Petitioner argues that any consideration of race in

admissions is unlawful because it provides an unfair

advantage based on race. See Pet. Br. 48-49. As others

have explained, that argument has no merit. But it

also ignores that some consideration of race is

necessary in order to ensure a level playing field by

neutralizing sources of bias that systematically

disadvantage some minority applicants.

Even if invisible on the face of an application,

racial bias and other race-aligned disadvantages can

infect a student’s application in subtle ways. Bias can

manifest, for example, in letters of recommendation.

Colleges consider letters of recommendation to be

more important components of college applications

than extracurricular activities, class rank, and

Advanced Placement (AP) test scores.47 But research

shows that, even when controlling for grades, white

students receive more praise for their substantive

competence in narrative evaluations, whereas

evaluations of students of color focus more on their

personal qualities.48

Melissa Clinedinst & Anna-Maria Koranteng, Nat’l Ass’n for

Coll. Admission Counseling, 2017 State of College Admission 17,

https://www.nacacnet.org/globalassets/documents/publications/

research/soca17final.pdf.

Alexandra E. Rojek et al., Differences in Narrative Language

in Evaluations of Medical Students by Gender and Underrepresented Minority Status, 34 J. Gen. Internal Med. 684, 68490 (2019), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6502922/

pdf/11606_2019_Article_4889.pdf.

Overall academic performance, too, can be

affected by subconscious bias. Teacher expectations of

student success are closely tied to that success: All

else equal, tenth-grade students whose teachers have

high expectations of them are three times more likely

to graduate from college than those with low teacher

expectations.49

And research has shown that—

independent of factors like prior achievement and

motivation—teacher expectations affect both skill

development50 and grades.51 But these influential

expectations are susceptible of unconscious bias. For

example, high-school teachers expect 58% of their

white students to obtain four-year degrees, but their

expectations for their Black students’ collegiate

Ulrich Boser et al., Ctr. for Am. Progress, The Power of the

Pygmalion Effect 2 (Oct. 6, 2014), https://files.eric.ed.gov/fulltext/

ED564606.pdf; see also Scott Jaschik, Expectations, Race and

College Success, Inside Higher Ed (Oct. 24, 2017),

https://www.insidehighered.com/news/2017/10/24/study-findshigh-school-teachers-have-differing-expectations-black-andwhite (both Black and white students with similar preparation

“are more likely to graduate from college if their high school

teachers believe they will”).

Sarah Gentrup et al., Self-Fulfilling Prophecies in the

Classroom: Teacher Expectations, Teacher Feedback and Student

Achievement, 66 Learning & Instruction, 2020, at 9,

https://www.sciencedirect.com/science/article/pii/

S095947521930177X.

Lee Jussim & Jacquelynne S. Eccles, Teacher Expectations

II: Construction and Reflection of Student Achievement, 63

J. Personality

Soc.

Psych.

947,

958

(1992),

https://sites.rutgers.edu/lee-jussim/wp-content/uploads/sites/135/

2019/05/Jussim-Eccles-1992-JPSP.pdf.

success are that just 37% of them will graduate

college.52

Finally, other systemic inequities that have a

disparate impact on students of color can affect the

strength of college applications. Teachers at small,

well-resourced schools are best positioned to write

compelling letters of recommendation,53 but students

of color are more likely than white students to attend

high schools that are crowded and under-resourced.54

And while colleges consider standardized test scores

one of the four most important elements of a college

application,55 research shows that annual family

income is strongly correlated with a student’s SAT

Jaschik, Expectations, Race and College Success, supra note

49.

Scott Jaschik, Recommendation Letters and Bias in

Admissions,

Inside

Higher

(Oct.

22,

2018),

https://www.insidehighered.com/admissions/article/2018/10/22/

do-recommendation-letters-insert-bias-college-admissionsdecisions.

See Linda Darling-Hammond, Inequality in Teaching and

Schooling: How Opportunity is Rationed to Students of Color in

America, in The Right Thing to Do, the Smart Thing to Do:

Enhancing Diversity in the Health Professions: Summary of the

Symposium on Diversity in Health Professions in Honor of

Herbert W. Nickens, M.D. 208, 208-09, 213 (2001),

https://www.ncbi.nlm.nih.gov/books/NBK223640/.

Clinedinst & Koranteng, supra note 47, at 17.

scores.56

Given that students of color are

disproportionately

likely

come

from

socioeconomically disadvantaged backgrounds,57 the

primacy of standardized test scores in colleges’

application-review process provides an additional

reason to permit schools to consider students’ race in

their holistic reviews.

Knowing and accounting for a student’s race is

therefore necessary for schools to avoid unwittingly

perpetuating bias and discrimination in their

admissions systems.

IV. Race-Neutral Alternatives Don’t Provide

The Same Benefits.

Petitioner argues that schools can achieve their

compelling interests without knowing or taking into

account applicants’ race. See Pet. Br. 33-34, 44-45, 5657. That assertion, however, is not borne out in the

experiences of schools that have chosen, or been forced,

See, e.g., Ezekiel J. Dixon-Román et al., Race, Poverty and

SAT Scores: Modeling the Influences of Family Income on Black

and White High School Students’ SAT Performance, 115 Tchrs.

Coll. Rec., Apr. 2013, at 1, 21, https://www.researchgate.net/

publication/280232788_Race_Poverty_and_SAT_Scores_Modeling

_the_Influences_of_Family_Income_on_Black_and_White_High

_School_Students'_SAT_Performance; Josh Zumbrun, SAT

Scores and Income Inequality: How Wealthier Kids Rank Higher,

Wall St. J. (Oct. 7, 2014), https://www.wsj.com/articles/BL-REB28270.

Black Americans are most likely to live in poverty, followed

by Hispanics of any race, then by Asians and non-Hispanic

Whites. John Creamer, Poverty Rates for Blacks and Hispanics

Reached Historic Lows in 2019, U.S. Census Bureau (Sept. 15,

2020),

https://www.census.gov/library/stories/2020/09/povertyrates-for-blacks-and-hispanics-reached-historic-lows-in2019.html.

to abandon any consideration of race in admissions.

These results of those real-world experiments are

sobering and should not be replicated nationwide.

California,

which

banned

race-conscious

admissions at California public universities in 1998

via amendment to the state constitution,58 is a case in

point. Following the ban, Black enrollment as a

proportion of the student body has fallen in both the

University of California (UC) system and the

California State University (CSU) system, being cut

nearly in half at the CSUs.59 Latinx and Native

American students are now severely underrepresented

at UCs and CSUs, respectively.60 What’s more,

enrollments in the UC system as a whole mask the

effects at the four most selective campuses, where

Black, Latinx, and Native American enrollment fell

precipitously when race-conscious admissions were

banned.61

These results are indicative of a broader trend.

One study showed that, with respect to highly ranked

public institutions, “changes in representation caused

See Cal. Const. art. I, § 31.

Thomas Peele & Daniel J. Willis, Dropping Affirmative

Action Had Huge Impact on California’s Public Universities,

EdSource (Oct. 29, 2020), https://edsource.org/2020/droppingaffirmative-action-had-huge-impact-on-californias-publicuniversities/642437.

Ibid.

Peter Hinrichs, The Effects of Affirmative Action Bans on

College Enrollment, Educational Attainment, and the

Demographic Composition of Universities, 94 Rev. Econ. & Stat.

712, 719-20 (Aug. 2012), https://direct.mit.edu/rest/articleabstract/94/3/712/58001/The-Effects-of-Affirmative-Action-Banson-College.

by affirmative action bans are very large in relative

terms” and include decreases in Black, Latinx, and

Native American enrollment, and significant increases

in white enrollment, along with increases in Asian

American enrollment (when treating Asian Americans

as a single group).62

Banning race-conscious

admissions affects graduate education as well. For

example, the implementation of race-consciousadmissions bans in eight states caused Black, Latinx,

Native American, and Pacific Islander medical

students’ enrollment in those states’ public medical

schools to fall by 37%.63

Race-conscious-admissions bans have lasting

effects, both on degree attainment and socioeconomic

status. In California, Black, Latinx, and Native

American UC applicants’ undergraduate and graduate

degree attainment declined following the ban.64 The

ban also caused such “applicants to earn five percent

lower average annual wages between ages 24 and 34

than they would have earned had affirmative action

continued.”65 By 2014, California’s race-consciousadmissions ban had decreased the number of high62

Id. at 717.

Dan P. Ly et al., Affirmative Action Bans and Enrollment of

Students from Underrepresented Racial and Ethnic Groups in

U.S. Public Medical Schools, 175 Annals Internal Med. 873, 875

(June 2022).

Zachary Bleemer, Affirmative Action, Mismatch, and

Economic Mobility After California’s Proposition 209, at 3 (Univ.

of Cal. Berkely Ctr. for Stud. in Higher Educ., Research &

Occasional Paper Series CSHE.10.2020, 2020), https://cshe.berkeley.edu/

publications/affirmative-action-mismatch-and-economicmobility-after-california’s-proposition-209.

Id. at 3.

earning Black, Latinx, and Native American

Californians in their early 30s by at least 3%.66 In

other words, the end of race-conscious admissions in

California had a measurable and negative economic

impact on broad swaths of Californians.

Were race-conscious admissions prohibited

nationwide, these negative effects would be felt

everywhere. Research has shown that a nationwide

ban on the consideration of race in college admissions

would cause the representation of Black and Latinx

students at all four-year universities to decline by

2%—but that figure jumps to 10% with respect to the

most selective institutions.67 And these results are not

meaningfully altered by the use of policy changes

intended to counteract the loss of race consideration,

such as admitting all students in the top 10% of their

high-school classes, increased minority recruiting, or

increased minority-student support.68

Given the

significance of university selectivity for students’

graduation rates and post-graduation income, see

supra at 6, this substantial reduction in the

accessibility of the most selective schools is disturbing.

***

As shown above, the race-conscious admissions

policies made possible by Grutter have done

substantial good, but the need for such policies

persists.

The Court should allow universities—

Ibid.

Jessica S. Howell, Assessing the Impact of Eliminating

Affirmative Action in Higher Education, 28 J. Lab. Econ. 113, 151

(2010).

Id. at 151-54.

entities uniquely positioned to assess the benefits of

student racial diversity—to continue to use Gruttercompliant race-conscious admissions policies.

CONCLUSION

For the foregoing reasons, the Court should affirm

the judgments of the First Circuit and the Middle

District of North Carolina below.

Respectfully submitted,

Rhonda Weingarten

David J. Strom

AMERICAN FEDERATION

OF TEACHERS

555 New Jersey Ave. N.W.

Washington, DC 20001

(202) 393-7472

August 1, 2022

Kevin K. Russell

Counsel of Record

Kathleen Foley

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

kr@goldsteinrussell.com

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