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,

PRESIDENT AND 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 Circuit and

Fourth Circuits

______________________________________________________________________

BRIEF OF THE NATIONAL EDUCATION

ASSOCIATION AND SERVICE EMPLOYEES

INTERNATIONAL UNION AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

______________________________________________________________________

ALICE O’BRIEN

Counsel of Record

NICOLE G. BERNER

JASON WALTA

JOHN M. D’ELIA

REBECCA YATES

Service Employees

BETHEL HABTE

International Union

National Education

1800 Massachusetts

Association

Ave., N.W.

1201 Sixteenth Street, N.W.

Washington, D.C. 20036 Washington, D.C. 20036

(202) 730-7466

(202) 822-7035

aobrien@nea.org

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

TABLE OF CONTENTS

Page

Table of authorities .................................................. ii

Interest of Amici Curiae .......................................... 1

Introduction and summary of argument ................ 3

Argument ................................................................. 4

I. Race continues to influence our ability to

obtain a just and prosperous society ............... 5

A. The inequitable apportionment of

educational opportunities by race .............. 5

B. Recent events demonstrate that racism

and discrimination are not artifacts of

American history, but persist in every

aspect of our society, including our

schools........................................................ 15

II. Racially diverse schools provide

educational and social benefits to all ............ 18

Conclusion .............................................................. 33

Cases

TABLE OF AUTHORITIES

Pages

Ambach v. Norwick, 441 U.S. 68 (1979) .............. 3–4

City of Richmond v. J.A. Croson Co., 488

U.S. 469 (1989) ................................................. 32

Fisher v. Univ. of Tex., 570 U.S. 297 (2013) ............ 5

Fisher v. Univ. of Tex., 579 U.S. 365 (2016) ............ 5

Grutter v. Bollinger, 539 U.S. 306 (2003) ....... 4–5,24

Regents of Univ. of Cal. v. Bakke, 438 U.S.

265 (1978) ........................................................... 5

Wisconsin v. Yoder, 406 U.S. 205 (1972) ................. 4

Statutes and regulations

Fla. Admin. Code R. 6A-1.094124.......................... 16

Tex. Educ. Code § 28.0022 ..................................... 16

Other authorities

Kiara Alfonseca, Anti-Critical Race Theory

Bill Signed Into Law by Mississippi

Governor, ABC NEWS (Mar. 15, 2022) ............. 16

Gordon W. Allport, THE NATURE OF

PREJUDICE (1954) ....................................... 22–23

Derrick P. Alridge, The Limits of Master

Narratives in History Textbooks: An

Analysis of Representations of Martin

Luther King, Jr., 108 TEACHERS COLL.

REC. 662 (2006) ................................................ 17

Am. Univ. Sch. of Edu., Identifying Gifted

Students: Addressing the Lack of

Diversity in Gifted Education (Feb. 11,

2021) ................................................................. 10

iii

Other authorities (cont’d)

Kalyn Belsha et al., Not Getting Into It: How

Critical Race Theory Laws Are Cutting

Short Classroom Conversations,

CHALKBEAT (Dec. 17, 2021) .............................. 17

James Benson & Geoffrey Borman, Family,

Neighborhood, and School Settings

Across Seasons: When Do Socioeconomic

Context and Racial Composition Matter

for the Reading Achievement Growth of

Young Children?, 112 TEACHERS COLL.

REC. 1338 (2010) .............................................. 20

Mark Berends & Roberto V. Peñaloza,

Increasing Racial Isolation and Test

Score Gaps in Mathematics: A 30-Year

Perspective, 112 TEACHERS COLL. REC.

978 (2010) ......................................................... 19

Marianne Bertrand & Sendhil Mullainathan,

Are Emily and Greg More Employable

than Lakisha and Jamal? A Field

Experiment on Labor Market

Discrimination, 94 AM. ECON. REV. 991

(2004) ................................................................ 14

Zachary Bleemer, Affirmative Action,

Mismatch, and Economic Mobility After

California’s Proposition 209, 137 Q. J.

ECON. 115 (2022) ........................................ 29–30

Geoffrey Borman & Maritza Dowling,

Schools and Inequality: A Multilevel

Analysis of Coleman’s Equality of

Educational Opportunity Data, 112

TEACHERS COLL. REC. 1201 (2010) .................. 20

Other authorities (cont’d)

Nicholas A. Bowman, How Much Diversity Is

Enough? The Curvilinear Relationship

Between College Diversity Interactions

and First-Year Student Outcomes, 54

RES. HIGHER EDUC. 874 (2013) ........................ 27

Jomills Henry Braddock II & Amaryllis Del

Carmen Gonzalez, Social Isolation and

Social Cohesion: The Effects of K–12

Neighborhood and School Segregation on

Intergroup Orientations, 112 TEACHERS

COLL. REC. 1631 (2010) .................................... 28

Jomills Henry Braddock II & James M.

McPartland, Social-Psychological

Processes that Perpetuate Racial

Segregation, 19 J. BLACK STUDIES 267

(1989) .......................................................... 27–28

Brookings Inst., The Polarization of Job

Opportunities in the U.S. Labor Market

(April 2010)....................................................... 12

Audra D.S. Burch & Luke Vander Ploeg,

Buffalo Shooting Highlights Rise of Hate

Crimes Against Black Americans, N.Y.

TIMES (May 16, 2022) ....................................... 15

Bureau of Labor Statistics, Education Pays

2020 (June 2021) .............................................. 12

Bureau of Labor Statistics, Labor Force

Characteristics by Race and Ethnicity,

2019 (Dec. 2020) ............................................... 12

Elise Cappella et al., The Hidden Role of

Teachers: Child and Classroom

Predictors of Change in Interracial

Friendships, 37 J. EARLY ADOLESCENCE

1093 (2017) ....................................................... 25

Other authorities (cont’d)

Desiree Carver-Thomas & Linda DarlingHammond, The Trouble with Teacher

Turnover: How Teacher Attrition Affects

Students and Schools, 27 EDUC. POL’Y

ANALYSIS ARCHIVES 1 (2019) ............................. 8

Century Found., The Benefits of

Socioeconomically and Racially

Integrated Schools and Classrooms (Apr.

29, 2019) .......................................................... 21

Mark J. Chin, Bias in the Air: A Nationwide

Exploration of Teachers’ Implicit Racial

Attitudes, Aggregate Bias, and Student

Outcomes, 49 EDUC. RESEARCHER 566

(2020) ................................................................ 14

Civil Rights Project, E Pluribus . . .

Separation: Deepening Double

Segregation for More Students (2012) ............... 7

David S. Crystal et al., It Is Who You Know

That Counts: Intergroup Contact and

Judgments About Race-Based Exclusion,

26 BRIT. J. DEV. PSYCH. 51 (2008) ................... 23

Stacy B. Dale & Alan B. Krueger, Estimating

the Effects of College Characteristics over

the Career Using Administrative

Earnings Data, 49 J. HUMAN RES. 323

(2014) ................................................................ 21

Linda Darling-Hammond, Teacher Quality

and Student Achievement: A Review of

State Policy Evidence, 8 EDUC. POL’Y

ANALYSIS ARCHIVES 1 (2000) ............................. 7

Econ. Pol’y Inst., Schools Are Still

Segregated, and Black Children Are

Paying a Price (Feb. 12, 2020) ........................... 7

Other authorities (cont’d)

Cynthia Estlund, Working Together: The

Workplace, Civil Society, and the Law, 89

GEO. L. J. 1 (2000) ............................................ 23

Michael Ewens et al., Statistical

Discrimination or Prejudice? A Large

Sample Field Experiment, 96 REV. ECON.

& STAT. 119 (2014) ........................................... 13

Erin M. Fahle et al., Racial Segregation

and School Poverty in the United States,

1999–2016, 12 RACE & SOC. PROB. 42

(2020) .................................................................. 7

Fed. Reserve Bank of N.Y., The Labor

Market for Recent College Graduates

(May 11, 2022) ................................................. 12

Mary J. Fischer & Douglas S. Massey, The

Effects of Affirmative Action in Higher

Education, 36 SOC. SCI. RESEARCH 531

(2007) ................................................................ 21

Adrian Florido, Teachers Say Laws Banning

Critical Race Theory Are Putting a Chill

on Their Lessons, NPR (May 28, 2021) ........... 17

Samuel L. Gaertner et al., How Does

Cooperation Reduce Intergroup Bias?, 59

J. PERSONALITY & SOC. PSYCHOL. 692

(1990) ................................................................ 26

Liliana M. Garces, Racial Diversity,

Legitimacy, and the Citizenry: The

Impact of Affirmative Action Bans on

Graduate School Enrollment, 36 REV.

HIGHER EDUC. 93 (2012) .................................. 30

vii

Other authorities (cont’d)

Liliana M. Garces & Courtney D. Cogburn,

Beyond Declines in Student Body

Diversity: How Campus-Level

Administrators Understand a Prohibition

on Race-Conscious Postsecondary

Admissions Policies, 52 AM. EDUC. RES. J.

828 (2015) ......................................................... 31

Liliana M. Garces & David Mickey-Pabello,

Racial Diversity in the Medical

Profession: The Impact of Affirmative

Action Bans on Underrepresented

Student of Color Matriculation in

Medical Schools, 86 J. HIGHER EDUC. 264

(2015) ................................................................ 30

Pat Rubio Goldsmith, Learning Apart, Living

Apart: How the Racial and Ethnic

Segregation of Schools and Colleges

Perpetuates Residential Segregation, 112

TEACHERS COLL. REC. 1602 (2010) .................. 28

Dana Goldstein, Two States. Eight

Textbooks. Two American Stories, N.Y.

TIMES (Jan. 12, 2020) ....................................... 18

Bernadette Gray-Little & Robert A. Carels,

The Effect of Racial Dissonance on

Academic Self-Esteem and Achievement

in Elementary, Junior High, and High

School Students, 7 J. RES. ON

ADOLESCENCE 109 (1997) ................................. 19

Anne Gregory et al., The Achievement Gap

and the Discipline Gap: Two Sides of the

Same Coin?, 39 EDUC. RES. 59 (2010) ............... 9

Patricia Gurin et al., The Benefits of

Diversity in Education for Democratic

Citizenship, 60 J. SOC. ISSUES 17 (2004) ......... 27

viii

Other authorities (cont’d)

Nicole Hannah-Jones, THE 1619 PROJECT: A

NEW ORIGIN STORY (2021) ................................ 16

Shaun R. Harper & Andrew H. Nichols, Are

They Not All the Same? Racial

Heterogeneity Among Black Male

Undergraduates, 49 J. COLL. STUDENT

DEV. 204 (May/June 2008) ............................... 24

C. Kirabo Jackson, Student Demographics,

Teacher Sorting and Teacher Quality:

Evidence from the End of School

Desegregation, 27 J. LAB. ECON. 213

(2009) .................................................................. 7

Omari Jackson & David M. Merolla,

Structural Racism as the Fundamental

Cause of the Academic Achievement Gap,

13 SOCIOLOGY COMPASS 8 (2019) ..................... 10

Drew S. Jacoby-Senghor et al., A Lesson in

Bias: The Relationship Between Implicit

Racial Bias and Performance in

Pedagogical Contexts, 63 J. EXPER. SOC.

PSYCH. 50 (2016) .............................................. 15

Jaana Juvonen et al., When and How Do

Students Benefit From Ethnic Diversity

in Middle School?, 89 CHILD DEV. 1268

(2018) ................................................................ 27

William C. Kidder, Misshaping the River:

Proposition 209 and Lessons for the

Fisher Case, 39 J.C. & U.L. 53 (2013) ............. 31

William C. Kidder & Patricia Gándara, Two

Decades After the Affirmative Action Ban:

Evaluating the University of California’s

Race-Neutral Efforts, ETS WHITE PAPER

(2016) ................................................................ 32

Other authorities (cont’d)

David S. Knight, Are School Districts

Allocating Resources Equitably? The

Every Student Succeeds Act, Teacher

Experience Gaps, and Equitable Resource

Allocation, 33 EDUC. POL’Y 615 (2019) .............. 9

Michal Kurlaender & John T. Yun, Is

Diversity a Compelling Educational

Interest?, in DIVERSITY CHALLENGED:

EVIDENCE ON THE IMPACT OF AFFIRMATIVE

ACTION (Gary Orfield ed., 2001) ................. 26,28

Justin D. Levinson et al., Guilty by Implicit

Racial Bias: The Guilty/Not Guilty

Implicit Association Test, 8 OHIO ST. J.

CRIM. L. 187 (2010) .......................................... 13

Chad Loes et al., Effects of Diversity

Experiences on Critical Thinking Skills:

Who Benefits?, 83 J. HIGHER EDUC. 1

(2012) ................................................................ 27

Mark C. Long, Affirmative Action and Its

Alternatives in Public Universities: What

Do We Know?, 67 PUB. ADMIN. REV. 315

(2007) ................................................................ 32

Kent McIntosh et al., Education Not

Incarceration: A Conceptual Model for

Reducing Racial and Ethnic

Disproportionality in School Discipline, 5

J. APPLIED RES. CHILD. 1 (2014) ........................ 9

Roslyn Arlin Mickelson & Martha Bottia,

Integrated Education and Mathematics

Outcomes: A Synthesis of Social Science

Research, 88 N.C. L. REV. 993 (2010) ........ 19–20

Other authorities (cont’d)

Jeffrey F. Milem, The Educational Benefits of

Diversity: Evidence from Multiple

Sectors, in COMPELLING INTEREST

(Mitchell J. Chang et al. eds., 2003) ............... 25

Toni Morrison, THE BLUEST EYE (1970) ................ 16

Nat’l Ass’n for Gifted Children, Gifted and

Talented: Finding and Calculating

Representation Rates, (Feb. 25, 2019) ............. 25

Nat’l Bureau of Econ. Res., Long-Run

Impacts of School Desegregation &

School Quality on Adult Attainments,

(Sept. 2015)....................................................... 22

Elavie Ndura, ESL and Cultural Bias: An

Analysis of Elementary Through High

School Textbooks in the Western United

States of America, 17 J. LANGUAGE

CULTURE & CURRICULUM 143 (2004) ............... 17

Xiaoxia A. Newton, End-of-High-School

Mathematics Attainment: How Did

Students Get There?, 112 TEACHERS

COLL. REC. 1064 (2010) .................................... 20

Tuan D. Nguyen & Christopher Redding,

Changes in the Demographics,

Qualifications, and Turnover of

American STEM Teachers, 1988–2012, 4

AERA OPEN 1 (2018) .......................................... 8

Brian A. Nosek et al., Harvesting Implicit

Group Attitudes and Beliefs from a

Demonstration Web Site, 6 GROUP

DYNAMICS: THEORY, RESEARCH & PRAC.

101 (2002) ......................................................... 13

Other authorities (cont’d)

Ann Owens & Jennifer Candipan, Social and

Spatial Inequalities of Educational

Opportunity: A Portrait of Schools

Serving High- and Low-Income

Neighbourhoods in US Metropolitan

Areas, 56 URBAN STUDIES 3178 (2019) ............ 10

Thomas Peele & Daniel J. Willis, Dropping

Affirmative Action Had Huge Impact on

California’s Public Universities,

EDSOURCE (Oct. 29, 2020) ............................... 29

Pell Inst., Indicators of Higher Education

Equity in the United States: 2021

Historical Trend Report (2021) ....................... 14

Thomas F. Pettigrew, Future Directions for

Intergroup Contact Theory and Research,

32 INT’L J. INTERCULTURAL REL. 187

(2008) ................................................................ 24

Katherine W. Phillips, How Diversity Works,

311 SCI. AM. 42 (Oct. 2014) .............................. 26

Kristie J.R. Phillips al., Integrated Schools,

Integrated Futures? A Case Study of

School Desegregation in Jefferson

County, Kentucky, in FROM THE

COURTROOM TO THE CLASSROOM: THE

SHIFTING LANDSCAPE OF SCHOOL

DESEGREGATION (Claire E. Smrekar &

Ellen B. Goldring, eds., 2009).......................... 28

Sean F. Reardon et al., Is Separate Still

Unequal? New Evidence on School

Segregation and Racial Academic

Achievement Gaps, CEPA WORKING

PAPER NO. 19.06 (2021) .................................... 12

xii

Other authorities (cont’d)

Jason Reynolds & Ibram X. Kendi, STAMPED

(FOR KIDS): RACISM, ANTIRACISM, AND

YOU (2021) ....................................................... 16

Argun Saatcioglu, Disentangling School- and

Student-Level Effects of Desegregation

and Resegregation on the Dropout

Problem in Urban High Schools:

Evidence From the Cleveland Municipal

School District, 1977–1998, 112

TEACHERS COLL. REC. 1391 (2010) .................. 21

Sarah Schwartz, Map: Where Critical Race

Theory is Under Attack, EDUC. WEEK

(June 28, 2022) ................................................. 16

Lee Sigelman et al., Making Contact? BlackWhite Social Interaction in an Urban

Setting, 101 AM. J. SOC. 1306 (Mar. 1996) ...... 28

Allison L. Skinner & Andrew N. Meltzoff,

Childhood Experiences and Intergroup

Biases among Children, 13 SOC. ISSUES &

POL’Y REV. 211 (2019) ...................................... 25

Robert E. Slavin, Cooperative Learning:

Applying Contact Theory in Desegregated

Schools, 41 J. SOC. ISSUES 45 (1985) ...................

Elizabeth Stearns, Long-Term Correlates of

High School Racial Composition:

Perpetuation Theory Reexamined, 112

TEACHERS COLL. REC. 1654 (2010) .................. 29

Angie Thomas, THE HATE U GIVE (2017) .............. 16

U.S. Census Bureau, Demographic Turning

Points for the United States: Population

Projections for 2020 to 2060 (Feb. 2020) ........... 6

U.S. Census Bureau, School Enrollment in

the United States: 2011 (Sept. 2013) ................. 6

xiii

Other authorities (cont’d)

U.S. Dep’t of Educ., Data Snapshot: College

and Career Readiness (March 2014) ................. 9

U.S. Dep’t of Educ., Data Snapshot: Teacher

Equity (March 2014) .......................................... 7

U.S. Dep’t of Educ., Dear Colleague Letter

(Oct. 1, 2014) .................................................. 8–9

U.S. Dep’t of Educ., Key Data Highlights on

Equity and Opportunity Gaps in Our

Nation’s Public Schools (Oct. 28, 2016) ............ 9

U.S. Dep’t of Educ., Racial/Ethnic

Enrollment in Public Schools (2022) ................. 6

U.S. Dep’t of Educ., Report on the Condition

of Education 2021 (May 2021)......................... 11

U.S. Dep’t of Educ. & U.S. Dep’t of Treas.,

The Economic Case for Higher Education

(June 21, 2012) ................................................. 12

U.S. Dep’t of Justice, 2020 Hate Crimes

Statistics (May 5, 2022) ................................... 15

U.S. Gov’t Accountability Office, K-12

Education: Student Population Has

Significantly Diversified, But Many

Schools Remain Divided Along Racial,

Ethnic, and Economic Lines (June 2022) ......... 7

Loris Vezzali, Increasing Outgroup Trust,

Reducing Infrahumanization, and

Enhancing Future Contact Intentions Via

Imagined Intergroup Contact, 48 J.

EXPER. SOC. PSYCH. 437 (2012) .................. 23–24

Adam Voight, et al., The Racial School

Climate Gap: Within-School Disparities

in Students’ Experiences of Safety,

Support, and Connectedness, 56 AM. J.

CMTY. PSYCHOL. 252 (2015) ............................ 26

xiv

Other authorities (cont’d)

Peter B. Wood & Nancy Sonleitner, The

Effect of Childhood Interracial Contact

on Adult Antiblack Prejudice, 20 INT’L J.

INTERCULTURAL REL. 1 (1990) ......................... 28

INTEREST OF AMICUS CURIAE

This Amici Curiae brief is submitted, with the

consent of the parties, on behalf of the National Education Association (“NEA”) and Service Employees

International Union (“SEIU).1

NEA is a nationwide employee organization of

nearly three million members, the vast majority of

whom serve as educators and education support professionals in our nation’s public schools, colleges, and

universities. NEA believes that “a diverse society enriches all individuals” and that “[e]ducation should

foster a vibrant, pluralistic society that authentically

reflects diverse populations and cultural perspectives.” NEA Resolution B-12 (2015). Similarly, NEA

recognizes that “a racially diverse student population

is essential for all elementary/secondary schools, colleges, and universities to promote racial equality, improve academic performance, and foster a robust exchange of ideas.” NEA Resolution B-13 (2015).

Such diversity cannot “be achieved or maintained

in all cases simply by ending discriminatory practices

and treating all students equally regardless of race.”

Id. Rather, in order to “enhance equity in the education of our students,” NEA recognizes that “it may be

necessary for elementary/secondary schools, colleges,

and universities to take race into account in making

decisions as to student admissions, assignments,

and/or transfers.” Id. That is so because “both histori1 This brief is filed with the written consent of both parties.

Amici state that no party’s counsel authored the brief in whole

or in part; no party’s counsel contributed money that was intended to fund preparing or submitting the brief; and no person—other than Amici—contributed money that was intended to

fund preparing or submitting the brief.

cal and current practices have systematically advantaged and privileged people of White European ancestry while disadvantaging and denying rights, opportunities, and equality for people of color.” NEA Resolution I-53 (2017). Only by actively pursuing “social

and educational strategies fostering the eradication

of institutional racism” can our society achieve

“[r]acial justice in education” and “equitable opportunities and outcomes for people of all races.” NEA Resolution I-52 (2018).

SEIU is a labor union representing approximately two million working people in the United States,

Puerto Rico, and Canada. Our members work in essential jobs across healthcare, building and property

services, and public service. Thousands of our members are educators and thousands more are essential

support workers that keep schools and colleges running. SEIU believes that workers’ struggle for economic justice is intertwined with, and inseparable

from, our struggle for racial justice. Neither can be

won without the other. In June 2020, our International Executive Board adopted a resolution affirming

SEIU’s support for the Movement for Black Lives. At

our 2016 Convention, SEIU adopted Resolution 106A,

in which we committed to becoming an anti-racist organization. The Resolution acknowledges that “race

has historically been one of the most powerful ways

to pit working people against one another” and that

“[r]acism is a key way that the wealthy few regularly

structure and hijack our economy and government to

benefit themselves and disadvantage the vast majority of people, including white people.” The Resolution

specifically identifies racial “education . . . disparities” as a problem. SEIU believes that race-conscious

school admissions policies are an important tool for

reducing such disparities and achieving an inclusive

and equitable society in which all of us may flourish.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Since 2016—when the issue of race-conscious

university admissions was last before the Court—our

national conversation on race has shifted significantly. In 2017, torch-wielding white supremacists descended on Charlottesville, Virginia for a “Unite the

Right” rally resulting in the murder of a peaceful protester and marking another rising tide of organized

white supremacist violence in our country. In the

summer of 2020, the murder of George Floyd by police officers sparked some of the largest racial justice

protests in our nation’s history and spurred a vibrant

debate about racial justice and police practices. And

the continuing COVID pandemic has exacerbated and

laid bare continuing deep racial inequities in access

to healthcare and education and the life and death

consequences of those disparities.

Today, the reality remains that race still carries

great weight in our society and continues to carve out

opportunities and disadvantages based solely on the

color of one’s skin. That remains true across our society, including in our nation’s schools, where race continues divide educational opportunities inequitably

and distort perceptions with stereotypes and prejudice.

One of the most effective tools for curbing these

continuing inequities is to ensure racially integrated

elementary and secondary schools and institutions of

higher education. Such schools and classrooms not

only help to overcome our nation’s deplorable legacy

of slavery, segregation, and discrimination, but also

enable schools to fulfill their dual mission of instilling

in all students “the values on which our society

rests,” Ambach v. Norwick, 441 U.S. 68, 76 (1979),

and providing them with the skills and knowledge

necessary to realize their full potential, Wisconsin v.

Yoder, 406 U.S. 205, 239 (1972). To accomplish those

ends, educational institutions should be permitted to

consider race and ethnicity when making educational

policy judgments (ranging from school attendance

zones to college admissions criteria) that affect the

composition of schools and classrooms.

A robust body of empirical research confirms that

racially diverse schools and classrooms produce tangible and lasting improvements in academic

achievement for all students of both majority and minority races. Classroom contact among students of

different races reduces stereotypes and prejudice and

has been found to be more effective in promoting tolerance and cross-racial understanding than any other

pedagogical method. Classrooms with a “critical

mass” of minority students help to equalize opportunity, break down stereotypes, and offer enduring

benefits to a multiracial, democratic society, and its

citizens.

ARGUMENT

In 2013 and again in 2016, this Court reaffirmed

that attaining a diverse student body with its concomitant educational benefits is a compelling state

interest. Fisher v. Univ. of Tex., 570 U.S. 297, 310–11

(2013); Fisher v. Univ. of Tex., 579 U.S. 365, 381

(2016). Recent events demonstrate that this interest

remains stronger than ever and that the beneficial

effects of diversity in schools is even more crucial to

promote “‘cross-racial understanding,’ help[] to break

down racial stereotypes,” precipitate “more enlightening” classroom discussion, promote better “learning

outcomes,” and “better prepare[] students for an in-

creasingly diverse workforce and society.” Grutter v.

Bollinger, 539 U.S. 306, 330 (2003). Nothing less than

the “nation’s future depends upon leaders trained

through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples.” Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313

(1978) (Powell, J.) (cleaned up).

Race Continues to Influence Our Ability to

Obtain a Just and Prosperous Society

In 2003, this Court optimistically predicted that

within 25 years, schools would be able to achieve racial diversity without using any racial preferences in

admissions. Grutter, 539 U.S. at 343. Justice Ginsburg similarly hoped that “progress toward nondiscrimination and genuinely equal opportunity [would]

make it safe to sunset affirmative action.” Id. at 346

(concurring opinion). But she recognized “the current

reality that many minority students encounter markedly inadequate and unequal educational opportunities.” Id. Unfortunately, that hoped-for progress has

not materialized. Our schools, from K-12 to higher

education, still struggle to provide equitable opportunities for students of color. And racial injustice continues to plague our society.

A. The inequitable apportionment of educational opportunities by race

Race continues to carry great weight, dividing

educational opportunities inequitably, denying large

swaths of our populace the opportunity to succeed,

and distorting perceptions with stereotypes and prejudice.

1. Even now, a student’s race is still, by itself,

largely predictive of the racial composition of the elementary and secondary schools they will attend. The

U.S. Census Bureau projects that, by 2045, Whites

will no longer represent a majority of the U.S. population.2 Yet, despite this increasing diversity, our

public elementary and secondary schools remain

heavily segregated.

In the 2019–2020 school year, the average White

student attended a majority White school.3 By contrast, students of color are far more likely to attend

schools where the majority of students are also students of color.4 Overall, while more than half of all

Black (59%) and Hispanic (60%) public elementary

and secondary students attended public schools in

which minority enrollment was at least 75%, only 6%

of White students attended such schools.5 Conversely,

only 4% of Black students and 5% of Hispanic students attended public schools in which the enrollment

was at least 75% White, while 46% of White students

attended such schools.6

This extreme segregation of Black and Hispanic

students is increasing. From the 1990–1991 school

year to the 2019–2020 school year, the enrollment for

Black students in schools with a student body comprised of at least 75% Black and other racial minority

students increased by nearly 15 percentage points

(from 44.8% to 59%); over the same time period, the

figure for Hispanic students increased by roughly 10

percentage points (from 50.9% to 60%).7

2 U.S. Census Bureau, Demographic Turning Points for the

United States: Population Projections for 2020 to 2060 at 7 (Feb.

2020).

3 U.S. Dep’t of Educ., Racial/Ethnic Enrollment in Public

Schools (2022).

4 Id.

5 Id.

6 Id.

7 Id.

2. The trend toward higher levels of concentrated

segregation for Black and Hispanic students has ramifications beyond just racial isolation. Racial differences in exposure to poverty continue to be large and

have remained stable for the past 18 years.8 At present, “almost all intensely segregated minority

schools, but very few all-white schools, are associated

with concentrated poverty.”9 For example, “80% of

predominately Hispanic, Black, and American Indian/Alaska Native schools have at least 75% of their

students eligible for free or reduced-price lunch—a

proxy for poverty.”10 Black children are more than

twice as likely as White children to attend highpoverty schools.11

Although educational research has shown the

critical importance of a stable, high-quality teaching

force,12 high-poverty, majority-minority schools are

more likely to be associated with high rates of teacher

turnover and fewer experienced teachers.13 For ex8 Erin M. Fahle et al., Racial Segregation and School Pov-

erty in the United States, 1999–2016, 12 RACE & SOC. PROB. 42,

51 (2020).

9 Civil Rights Project, E Pluribus…Separation: Deepening

Double Segregation for More Students at 27 (2012).

10 U.S. Gov’t Accountability Office, K-12 Education: Student

Population Has Significantly Diversified, But Many Schools

Remain Divided Along Racial, Ethnic, and Economic Lines at 14

(June 2022).

11 Econ. Pol’y Inst., Schools Are Still Segregated, and Black

Children Are Paying a Price (Feb. 12, 2020).

12 Linda Darling-Hammond, Teacher Quality and Student

Achievement: A Review of State Policy Evidence, 8 EDUC. POL’Y

ANALYSIS ARCHIVES 1, 31–33 (2000).

13 C. Kirabo Jackson, Student Demographics, Teacher Sorting and Teacher Quality: Evidence from the End of School Desegregation, 27 J. LAB. ECON. 213, 247–49 (2009); U.S. Dep’t of

Educ., Data Snapshot: Teacher Equity (March 2014)

ample, STEM teachers in these schools are more likely to be new, to lack graduate degrees, and to leave

the schools within a short time.14 And more generally,

schools with the largest numbers of low-income and

minority students are much more likely than other

schools to fill vacancies with substitutes or teachers

who are not certified in the subject, to expand class

sizes, or to cancel course offerings.15 In addition,

teachers in these schools receive less funding per student for teacher salaries.16

Schools with high proportions of Hispanic and

Black students also invest less in school facilities

compared to those attended mainly by White students. As a result, many Black and Hispanic students

attend overcrowded and dilapidated schools with inadequate heating and cooling, in temporary, portable

buildings or poorly maintained buildings.17 There is a

similar lack of investment in high-quality instructional materials and technology: schools serving primarily Black and Hispanic students have less access

to these resources compared to predominantly White

schools.18

14 Tuan D. Nguyen & Christopher Redding, Changes in the

Demographics, Qualifications, and Turnover of American STEM

Teachers, 1988–2012, 4 AERA OPEN 1, 6–10 (2018).

15 Desiree Carver-Thomas & Linda Darling-Hammond, The

Trouble with Teacher Turnover: How Teacher Attrition Affects

Students and Schools, 27 EDUC. POL’Y ANALYSIS ARCHIVES 1, 17

(2019).

16 David S. Knight, Are School Districts Allocating Resources Equitably? The Every Student Succeeds Act, Teacher Experience Gaps, and Equitable Resource Allocation, 33 EDUC.

POL’Y 615, 639 (2019).

17 U.S. Dep’t of Educ., Dear Colleague Letter at 4 (Oct. 1,

2014).

18 Id.

Likewise, students in these high-poverty, majority-minority schools often lack adequate access to the

necessary components of a high-quality education,

with less access to Advanced Placement (AP) courses,

gifted and talented programs, and classes in calculus,

physics, algebra II, and chemistry compared to

schools with fewer Hispanic and Black students.19

Nor is the problem limited to racial isolation or

lack of funding in schools. Students of color continue

to experience outright discrimination in access to educational opportunities. Disparities in school discipline are a prime example. Black K-12 students are

3.8 times more likely to receive one or more out-ofschool suspensions as White students, and are almost

twice as likely to be expelled from school without educational services.20 Black students are also more

than twice as likely as White classmates to be referred to law enforcement.21 These disparities in

school arrests—especially for minor infractions like

“disruption”—are consistent with research suggesting

that bias plays a significant role in discipline,22 and

cannot be attributed to differences in rates or types of

misbehavior between Black and White students.23

19 Id.; U.S. Dep’t of Educ., Data Snapshot: College and Ca-

reer Readiness at 1 (March 21, 2014).

20 U.S. Dep’t of Educ., Key Data Highlights on Equity and

Opportunity Gaps In Our Nation’s Public Schools (Oct. 28,

2016).

21 Id.

22 Kent McIntosh et al., Education Not Incarceration: A

Conceptual Model for Reducing Racial and Ethnic Disproportionality in School Discipline, 5 J. APPLIED RES. CHILD. 1, 14–16

(2014).

23 Anne Gregory et al., The Achievement Gap and the Discipline Gap: Two Sides of the Same Coin?, 39 EDUC. RES. 59

(2010).

And while schools tend to over-identify students

of color for discipline, they are also likely to underidentify them for gifted or honors programs. Black

and Hispanic students are underrepresented in gifted

programs by 43% and 30%, respectively.24 Although

some of the disparity stems from a lack of gifted programs in high-poverty schools, many students of color

are “simply overlooked.”25

All told, these disparities in socioeconomic status,

school and residential segregation, and bias and discrimination within schools contribute significantly to

disparities in educational outcomes.26 Overall, lowincome neighborhood schools, which have the smallest proportion of White and Asian students and the

largest proportions of Hispanic and Black students,

enroll more disadvantaged students, experience

greater absences and disciplinary measures, have

fewer experienced or certified teachers, pay teachers

lower salaries, and have lower achievement and

achievement growth.27 Therefore, it is unsurprising

that places with “more racial and racial economic

school segregation . . . tend to [also] be places with

24 Nat’l Ass’n for Gifted Children, Gifted and Talented:

Finding and Calculating Representation Rates (Feb. 25, 2019).

25 Am. Univ. Sch. of Educ., Identifying Gifted Students: Addressing the Lack of Diversity in Gifted Education (Feb. 11,

2021).

26 Omari Jackson & David M. Merolla, Structural Racism

as the Fundamental Cause of the Academic Achievement Gap, 13

SOCIOLOGY COMPASS 8 (2019).

27 Ann Owens & Jennifer Candipan, Social and Spatial Inequalities of Educational Opportunity: A Portrait of Schools

Serving High- and Low-Income Neighbourhoods in US Metropolitan Areas, 56 URBAN STUDIES 3178, 3184–92 (2019).

larger racial achievement gaps and somewhat larger

growth in racial achievement gaps.”28

3. The result of this pervasive segregation and

denial of educational opportunities is all too predictable. Students who are denied these opportunities

have poorer educational outcomes with life-long consequences for their subsequent educational and career trajectories.

For example, Hispanic and Black students are far

less likely to pursue higher education. Immediate college enrollment rates remain lower for Black and

Hispanic children, with the Black enrollment rate decreasing between 2010 and 2019.29 Also, Black and

Hispanic students who do pursue higher education

are far less likely to enroll in a four-year college program: in 2011, 44.6% of Hispanic college students and

34.5% of Black college students were enrolled in 2year colleges, compared to just 29.6% of White college

students.30

4. The fact that Black and Hispanic students are

more likely to attend high-poverty, racially-isolated

schools, and more likely to encounter racial prejudice

and discrimination that shrinks their educational opportunities, has dire consequences for their prospects

for success in the workforce. Black and Hispanic

adults face persistently higher rates of unemployment than their White counterparts, with much of

28 Sean F. Reardon et al., Is Separate Still Unequal? New

Evidence on School Segregation and Racial Academic Achievement Gaps, CEPA WORKING PAPER NO. 19.06, at 28 (2021).

29 U.S. Dep’t of Educ., Report on the Condition of Education

2021 at 22 (May 2021).

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

States: 2011 at 8 (Sept. 2013).

that unemployment concentrated among those with a

high school diploma or less.31

The wage gap between college and high school

graduates is at a historical peak.32 The median weekly earnings of a bachelor’s degree holder in 2020 were

more than 67% higher than those of a high school

graduate.33 College graduates are more consistently

employed than high school graduates; they also receive more generous nonwage fringe benefits, including sick and vacation pay, employer-paid health insurance, pension contributions, and safe and pleasant

working conditions.34 The rising relative earnings of

college graduates are not just due to rising real earnings for college-educated workers, but also to falling

real earnings for non-college-educated workers.35 To

put the point plainly, inequitable opportunities for

education at the elementary and secondary level have

profound and lasting negative implications for students for the rest of their lives.

5. Black, Hispanic, Native American, and other

students from racial minorities who have the same

formal educational opportunities as White students

may, due to their race, still have negative educational

and workforce experiences. People—even children—

have been found to react to individuals differently

31 Bureau of Labor Statistics, Labor Force Characteristics

by Race and Ethnicity, 2019 (Dec. 2020).

32 Fed. Reserve Bank of N.Y., The Labor Market for Recent

College Graduates (May 11, 2022).

33 Bureau of Labor Statistics, Education Pays 2020 (June

2021); U.S. Dep’t of Educ. & U.S. Dep’t of Treas., The Economic

Case for Higher Education at 1 (June 21, 2012).

34 Brookings Inst., The Polarization of Job Opportunities in

the U.S. Labor Market at 5 (April 2010).

35 Id. at 6.

based on their racial perceptions. For example, a

study in which respondents classified Black and

White faces or names while classifying positive or

negative words revealed responses showing implicit

preference for White over Black individuals.36 Another study analyzing implicit associations in the legal

domain showed that participants held implicit associations between Black and Guilty compared to White

and Guilty, associations which also predicted mockjuror evaluations of ambiguous evidence.37 Yet another study analyzed Craigslist ads for housing and

showed that those with Black sounding names received fewer positive responses than those with

White sounding names.38

Teachers also carry implicit racial biases, which

contribute to greater disparities in students’ test

scores and disciplinary outcomes.39 One study found

that high-biased instructors, with greater implicit

pro-White/anti-Black racial associations, were more

anxious and gave less clear and engaging lessons to

Black students than low-biased instructors—

resulting in lower performance on a test of the mate-

36 Brian A. Nosek et al., Harvesting Implicit Group Attitudes and Beliefs From a Demonstration Web Site, 6 GROUP DYNAMICS: THEORY, RESEARCH & PRAC. 101, 105 (2002).

37 Justin D. Levinson et al., Guilty by Implicit Racial Bias:

The Guilty/Not Guilty Implicit Association Test, 8 OHIO ST. J.

CRIM. L. 187, 190 (2010).

38 Michael Ewens et al., Statistical Discrimination or Prejudice? A Large Sample Field Experiment, 96 REV. ECON. & STAT.

119, 133 (2014).

39 Mark J. Chin, Bias in the Air: A Nationwide Exploration

of Teachers’ Implicit Racial Attitudes, Aggregate Bias, and Student Outcomes, 49 EDUC. RESEARCHER 566, 575 (2020).

rial being taught for Black but not for White students.40

These prejudices and preconceptions carry

through to adulthood and the workplace. In 2004, researchers studied racial discrimination in the labor

market by sending fictitious resumes to employers

with randomly-assigned names statistically associated with Black or White individuals. White-associated

names led to 50% more callbacks for interviews—a

racial gap that was uniform across occupation, industry, and employer size.41

Discrimination in the workforce reinforces persistent income gaps between races. Even with a bachelor’s or higher degree, median earnings of Black and

Hispanic adults remain lower than for Asian and

White peers.42 Black college graduates were also less

likely to own a home and have a retirement account,

and were more likely to have negative net worth and

report difficulty meeting essential living expenses.43

40 Drew S. Jacoby-Senghor et al., A Lesson In Bias: The Relationship Between Implicit Racial Bias and Performance in

Pedagogical Contexts, 63 J. EXPER. SOC. PSYCH. 50, 53 (2016).

41 Marianne Bertrand & Sendhil Mullainathan, Are Emily

and Greg More Employable than Lakisha and Jamal? A Field

Experiment on Labor Market Discrimination, 94 AM. ECON. REV.

991 (2004).

42 Pell Inst., Indicators of Higher Education Equity in the

United States: 2021 Historical Trend Report at 170 (2021).

43 Id. at 172.

B. Recent events demonstrate that racism

and discrimination are not artifacts of

American history, but persist in every

aspect of our society, including our

schools

Racial minorities are disadvantaged in the United States—not only by the persistence of de facto segregation in schools—but by overt racial violence and

coordinated efforts to stifle recognition of the nation’s

shameful history of racial oppression.

1. In 2016, the last time the Court was considering race-conscious admission in higher education, the

nation was reeling from the murder of nine Black

people at a church in Charleston, South Carolina by a

white supremacist. Today, our nation continues to

mourn ten Black people shot at a grocery store in

Buffalo, New York by yet another white supremacist.

In addition to these highly-visible acts of violence, the

FBI reports that anti-Black hate crimes increased

49% between 2019 and 2020.44 The FBI also reports

that “[a]bout a third of the nation’s historically Black

colleges and universities were targeted with bomb

threats this year, along with more than a dozen

houses of worship and other faith-based and academic institutions.”45

2. Recent efforts by state legislatures nationwide

to censor classroom discussions and limit educator

training on issues of systemic racism have exacerbated the problem. Rather than exposing the root causes

44 U.S. Dep’t of Justice, 2020 Hate Crimes Statistics (May 5,

2022).

45 Audra D.S. Burch & Luke Vander Ploeg, Buffalo Shoot-

ing Highlights Rise of Hate Crimes Against Black Americans,

N.Y. TIMES (May 16, 2022).

of racial inequality in schools and equipping our educators and our students to face systemic issues, they

promote a whitewashed version of our history and ignore that history’s lasting impact.

Fifteen states now have laws, executive orders, or

school board rules that limit the ways that educators

can discuss race, force educators to present an idealized version of American history, and/or ban materials considered too divisive.46 Similar restrictions have

been proposed or introduced in another 25 states.47

Many of these laws forbid educators from teaching

about unconscious or implicit bias, or that slavery

and racism are anything other than deviations from

the “authentic founding principles of the United

States.”48 And some take the form of outright bookbanning, such as restrictions in Florida and Texas

prohibit instruction on specific works of scholarship

like THE 1619 PROJECT.49 At the school-district level,

scholarship like STAMPED (FOR KIDS): RACISM, ANTIRACISM, AND YOU; novels like THE BLUEST EYE and

THE HATE U GIVE; and children’s books about Ruby

Bridges have all been targeted by activists and removed from classes and libraries.50 Moreover, in

many states, the statutes are vaguely-worded and

Kiara Alfonseca, Anti-Critical Race Theory Bill Signed

Into Law by Mississippi Governor, ABC News (Mar. 15, 2022).

47 Id.

48 Tex. Educ. Code § 28.0022(a)(4)(A)(viii).

49 Id. § 28.0022(a)(4)(C); Fla. Admin. Code R. 6A1.094124(3)(b).

50 Sarah Schwartz, Map: Where Critical Race Theory Is Under Attack, EDUC. WEEK (June 28, 2022).

carry severe penalties, which in turn creates a

chilling effect on teaching and learning.51

Proponents of these laws claim that teaching students about systemic racism will make individual

students feel guilty or uncomfortable, or will lead

them to believe that all White people are racist due to

the history of White racist oppression and their present positions of privilege within American society.

But it is far more common for students to learn from

texts that ignore our country’s history of racism.52

Examining U.S. history textbooks for fifth graders,

one teacher found that none of the books mentioned

that 12 of the first 18 U.S. presidents owned slaves.53

The textbooks described actions of Native tribes as

“violent” without using similar descriptors for the

Spaniards who “conquered them.”54 A New York

Times analysis of the most popular social studies

books in California and Texas revealed significant

differences, including that California textbooks explain the history of redlining and restrictive cove-

51 Kalyn Belsha et al., Not Getting Into It: How Critical

Race Theory Laws Are Cutting Short Classroom Conversations,

CHALKBEAT (Dec. 17, 2021); Adrian Florido, Teachers Say Laws

Banning Critical Race Theory Are Putting a Chill on Their Lessons, NPR (May 28, 2021).

52 Derrick P. Alridge, The Limits of Master Narratives in

History Textbooks: An Analysis of Representations of Martin Luther King, Jr., 108 TEACHERS COLL. REC. 662, 680 (2006); Elavie

Ndura, ESL and Cultural Bias: An Analysis of Elementary

Through High School Textbooks in the Western United States of

America, 17 J. LANGUAGE CULTURE & CURRICULUM 143, 146

(2004).

53 Id.

54 Id.

nants that are absent from the Texas versions of the

same textbooks.55

By limiting students’ engagement with issues of

racial equity and access to different perspectives,

these censorship efforts hinder the development of

cultural competence critical for living in an increasingly diverse society. The impact of censorship is particularly acute due to racial segregation in public

schools.

In sum, when it comes to public elementary and

secondary education, White, Black, Hispanic, Native

American and students of other races do not, in the

aggregate, have equal educational opportunities that

allow them to succeed in higher education and the

workforce. In light of this inescapable fact, the mission of public elementary, secondary, and higher education cannot be fulfilled without deliberate and affirmative efforts to achieve racially diverse classrooms.

II. Racially Diverse Schools Provide Educational and Social Benefits to All

As grim as this portrait of persistent racial disparity and de facto segregation may be, there are solutions that we, as a society, can pursue. An impressive body of empirical research has shown that fostering racially diverse classrooms is a fundamental and

necessary step in closing racial achievement gaps and

promoting productive intergroup relations in society

at large.

55 Dana Goldstein, Two States. Eight Textbooks. Two Amer-

ican Stories, N.Y. TIMES (Jan. 12, 2020).

A. Even when one controls for parental income,

education, and other measures of socioeconomic status, there are persistent racial gaps in achievement

and other educational outcomes.56 These gaps—

particularly in student test scores—have narrowed

during periods coinciding with greater school integration; whereas, the more recent stagnation in narrowing these gaps corresponds with a period when desegregation has effectively stalled or reversed. 57

A great deal of social science research documents

the influence of segregation on disparities in mathematics achievement. As a whole, this body of research

unambiguously finds that racial diversity in classrooms positively affects Black students’ math

achievement,58 and, conversely, that racial segregation negatively affects it.59 This research also provides strong evidence that segregation undermines

mathematics achievement among Hispanics and

moderately strong evidence that attending diverse

schools fosters it.60 Indeed, these studies even provide

56 Roslyn Arlin Mickelson & Martha Bottia, Integrated Ed-

ucation and Mathematics Outcomes: A Synthesis of Social Science Research, 88 N.C. L. REV. 993, 998 (2010).

57 Id. at 1010 (citing Mark Berends & Roberto V. Peñaloza,

Increasing Racial Isolation and Test Score Gaps in Mathematics:

A 30-Year Perspective, 112 TEACHERS COLL. REC. 978, 988–91

(2010)).

58 Id. at 1032 & n.150 (collecting studies). See also Bernadette Gray-Little & Robert A. Carels, The Effect of Racial Dissonance on Academic Self-Esteem and Achievement in Elementary,

Junior High, and High School Students, 7 J. RES. ON ADOLESCENCE 109, 123, 125–26 (1997).

59 Mickelson & Bottia, supra note 56, at 1032 & n.151 (collecting studies); Berends & Peñaloza, supra note 57, at 992–93.

60 Mickelson & Bottia, supra note 56, at 1034 & nn.162–63

(collecting studies).

strong evidence that racial isolation negatively affects

the achievement of Whites and that attending diverse

schools does not harm it.61 Together, these findings

provide consistent and unambiguous evidence that

math learning in a racially diverse classroom is positively related to outcomes for most students—

irrespective of the student’s age, race, or socioeconomic status.62

Studies demonstrate similar results when looking

at students’ reading and verbal achievement. For example, one recent study found that attending a highly

segregated, majority Black school has a “profound”

negative effect on a student’s verbal achievement,

“above and beyond” the effects of a student’s own

poverty level or racial group.63 Another study found

that, as a majority-minority school became more and

more segregated, average monthly reading gains

among first-graders slowed by two-thirds, with the

negative association between classroom composition

and reading growth being strongest for Black students.64

61 Id. at 1033–34 & nn.156–60 (collecting studies); see also

Gray-Little & Carols, supra note 58, at 123, 125–26.

62 Mickelson & Bottia, supra note 56, at 1043; see also

Xiaoxia A. Newton, End-of-High-School Mathematics Attainment: How Did Students Get There?, 112 TEACHERS COLL. REC.

1064, 1087–88 (2010).

63 Geoffrey Borman & Maritza Dowling, Schools and Inequality: A Multilevel Analysis of Coleman’s Equality of Educational Opportunity Data, 112 TEACHERS COLL. REC. 1201, 1236–

39 (2010).

64 James Benson & Geoffrey Borman, Family, Neighborhood, and School Settings Across Seasons: When Do Socioeconomic Context and Racial Composition Matter for the Reading

Achievement Growth of Young Children?, 112 TEACHERS COLL.

REC. 1338, 1371, 1374–75 (2010).

In contrast, integrated schools broadly promote

creativity, motivation, deeper learning, critical thinking, and problem-solving skills.65 These school environments are also more effective than segregated

ones in helping students graduate. For example, a

study of public school students in Cleveland showed

that Black, Hispanic, and White students had lower

drop-out rates when attending diverse high schools—

and that this effect intensified if the students were

exposed to diverse school environments before high

school.66 In other words, a diverse school environment

“turn[s] the average high school into an institution

that cushions more effectively the negative effects of

intensifying non-school problems on graduation

chances.”67

Similar results hold for diverse environments in

higher education. Studies show that admission to selective institutions results in stronger academic performance for students of colors who benefited from

affirmative action.68

The impact of integrated schooling is significant

and long-lasting. A study followed the life trajectories

65 Century Found., The Benefits of Socioeconomically and

Racially Integrated Schools and Classrooms at 1–2 (Apr. 29,

2019).

66 Argun Saatcioglu, Disentangling School- and StudentLevel Effects of Desegregation and Resegregation on the Dropout

Problem in Urban High Schools: Evidence From the Cleveland

Municipal School District, 1977–1998, 112 TEACHERS COLL. REC.

1391, 1419, 1427 (2010).

67 Id. at 1429.

68 Mary J. Fischer & Douglas S. Massey, The Effects of Affirmative Action in Higher Education, 36 SOC. SCI. RESEARCH

531, 544 (2007); Stacy B. Dale & Alan B. Krueger, Estimating

the Effects of College Characteristics over the Career Using Administrative Earnings Data, 49 J. HUMAN RES. 323, 350 (2014).

of children born between 1945 and 1968 until 2013

and found that Black students who attended desegregated schools were more likely to graduate from high

school, go to college, and earn a degree than those

who attended segregated schools.69 They also made

more money: five years of integrated schooling increased earnings by 15%.70 Black students who attended integrated schools were also less likely to be

incarcerated and were healthier as adults.71 Notably,

attending a racially diverse school had no negative

effect on White students.72

Overall, the research on the impact of racial diversity in schools demonstrates that if we are to have

a society in which children of all races are allowed to

realize their academic and intellectual potential, that

goal can only be reached by permitting policies that

foster racial diversity in elementary, secondary, and

higher education.

2. Beyond the well-documented educational benefits of racially diverse classrooms, there are broad societal benefits to be realized from the interracial contact that comes with diverse classroom environments.

The theory that interracial contact reduces racial stereotypes and prejudice was first articulated by Gordon W. Allport in his seminal work, THE NATURE OF

PREJUDICE. Allport posited that racial isolation

breeds stereotypes and prejudice, and that “equal status contact between majority and minority groups in

the pursuit of common goals” is a critical ingredient

69 Nat’l Inst. of Econ. Res., Long-Run Impacts of School Desegregation & School Quality on Adult Attainments at 2, 18–20

(Sept. 2015).

70 Id. at 20–21.

71 Id. at 2, 22–23.

72 Id. at 2, 18.

in improving relations between members of those

groups, especially if such contact “is of a sort that

leads to the perception of common interests and

common humanity between the members of the two

groups.”73

Subsequent empirical research has repeatedly

and consistently confirmed the common-sense conclusion that interracial contact can combat stereotypes

and prejudice and make individuals more comfortable

relating to members of other racial groups.74 This

body of evidence makes plain, however, that the conditions of contact are critical to its impact. In the first

place, contact that occurs during key periods of personal development—for example, in a student’s formative years—and that frequently recurs, is far more

effective at promoting tolerance and cross-racial understanding than intermittent contact among persons

whose social beliefs and identities are fully formed.75

So too, contact with a broad spectrum of different

people of other races is more effective in breaking

down racist and prejudicial attitudes than contact

with just a few individuals of another race, because it

forces people to “decategorize” those with whom they

are dealing and to treat them as individuals rather

than simply as members of a particular racial

group.76 This finding highlights the importance of

(1954).

Gordon W. Allport, THE NATURE OF PREJUDICE 281

74 Cynthia Estlund, Working Together: The Workplace, Civil

Society, and the Law, 89 GEO. L. J. 1, 19, 23–24 (2000).

75 David S. Crystal et al., It Is Who You Know That Counts:

Intergroup Contact and Judgments About Race-Based Exclusion,

26 BRIT. J. DEV. PSYCH. 51, 63–66 (2008.

76 Loris Vezzali, Increasing Outgroup Trust, Reducing Infrahumanization, and Enhancing Future Contact Intentions Via

(continued . . .)

having a “critical mass” of minority students. A “variety of viewpoints among minority students” helps to

break down racial stereotypes, and “nonminority students learn there is no ‘minority viewpoint’ but rather

a variety of viewpoints among minority students.”

Grutter, 539 U.S. at 319–20 (cleaned up). This requires a sufficiently diverse group of experiences and

perspectives within minority groups in order to counteract racial stereotypes and achieve the educational

benefits of diversity. A recent study of Black male college students noted that the Black students “recognized that members of other racial/ethnic groups

might perceive the Black student population as a

monolithic group” but that they themselves “were

quite cognizant of the characteristics and experiences

that made them unique and distinctive from each

other.”77

Finally, in order for racial stereotypes to be effectively countered, contact must be among individuals

of equal status, lest contact serve simply to reinforce

rather than reduce racist attitudes and prejudices.78

The interactions of diverse students in higher education satisfies this requirement. As this Court recognized in Grutter, the benefits that accrue from student-body diversity in higher education are “not theoretical but real.” 539 U.S. at 330. Such diversity fosters the ability to relate to other people, cultures, and

Imagined Intergroup Contact, 48 J. EXPER. SOC. PSYCH. 437

(2012).

77 Shaun R. Harper & Andrew H. Nichols, Are They Not All

the Same? Racial Heterogeneity Among Black Male Undergraduates, 49 J. COLL. STUDENT DEV. 204 (May/ June 2008).

78 Thomas F. Pettigrew, Future Directions for Intergroup

Contact Theory and Research, 32 INT’L J. INTERCULTURAL REL.

187, 192 (2008).

viewpoints, which in turn holds tremendous value for

our economy, military, and society at large. Id. at

330-33.

Given these findings, it is not surprising that

students’ exposure to greater diversity is associated

with increases in racial understanding, cultural

awareness and appreciation, engagement with social

and political issues, and openness to diversity and

challenge.79 Interracial cooperative contact among

students of different races in our public schools has

repeatedly been linked with increased levels of tolerance for children of other races and increased likelihood that children of different races will become and

remain friends.80 Such one-on-one contact has been

found to be reliably effective in reducing intergroup

bias amongst children.81 Moreover, such contact has

been linked to the formation of “close, reciprocated

[interracial] friendship choices, the kind of friendships that should be [the] most difficult to change,”

and which social scientists have long viewed as one of

most potent agents for promoting racial tolerance.82

In the end, this process—far from resulting in racial

balkanization—leads to precisely the opposite result.

Cooperative interaction between different groups “in79 Jeffrey F. Milem, The Educational Benefits of Diversity:

Evidence from Multiple Sectors, in COMPELLING INTEREST 126,

136 (Mitchell J. Chang et al. eds., 2003).

80 Elise Cappella et al., The Hidden Role of Teachers: Child

and Classroom Predictors of Change in Interracial Friendships,

37 J. EARLY ADOLESCENCE 1093, 1111 (2017).

81 Allison L. Skinner & Andrew N. Meltzoff, Childhood Experiences and Intergroup Biases among Children, 13 SOC. ISSUES

& POL’Y REV. 211, 226 (2019).

82 Robert E. Slavin, Cooperative Learning: Applying Contact

Theory in Desegregated Schools, 41 J. SOC. ISSUES 45, 55, 59

(1985).

duces members [of different groups] to conceive of

themselves as one (superordinate) group rather than

as two separate groups, thereby transforming their

categorized representations from us and them to a

more inclusive we.”83

3. Teaching elementary and secondary school

students to treat people as individuals and to identify

common ground is of great consequence to their intellectual

development.

Heterogeneous

groups—

including groups that differ only with respect to the

race of the participants—are better at creative problem-solving than homogeneous groups, due to the

benefits of interactions between diverse individuals.84

Reflecting that reality, high school students who are

asked whether or not racial and ethnic diversity has

enhanced their educational experience respond in the

affirmative in overwhelming numbers.85 Schools that

create a strong norm of respect for diversity were associated with all students’ positive experiences of the

school climate.86 Students of all races also reported

less social vulnerability, more positive perceptions of

teachers’ fair and equal treatment of all ethnic

83 Samuel L. Gaertner et al., How Does Cooperation Reduce

Intergroup Bias?, 59 J. PERSONALITY & SOC. PSYCHOL. 692, 693

(1990).

84 Katherine W. Phillips, How Diversity Works, 311 SCI. AM.

42, 44–46 (Oct. 2014).

85 Michal Kurlaender & John T. Yun, Is Diversity a Compelling Educational Interest?, in DIVERSITY CHALLENGED: EVIDENCE

ON THE IMPACT OF AFFIRMATIVE ACTION 132 (Gary Orfield ed.,

2001).

86 Adam Voight, et al., The Racial School Climate Gap:

Within-School Disparities in Students’ Experiences of Safety,

Support, and Connectedness, 56 AM. J. CMTY. PSYCHOL. 252, 255

(2015).

groups, and more favorable attitudes toward ethnic

out-groups with increased diversity.87

Interactions with diverse viewpoints has a positive net influence on the development of critical

thinking skills for White students.88 Diverse interactions are positively related to college students’ gains

in leadership skills, psychological well-being, intellectual engagement, and intercultural effectiveness.89

Interactions with diverse viewpoints also prepare

students for citizenship in an increasingly diverse society.90

4. Classroom diversity has broader and more enduring benefits for a multiethnic, democratic society,

and its citizens. Long term, students who learn to interact with individuals of other races in elementary

and secondary school are far “more likely to function

in desegregated environments in later life. As adults,

they more frequently live[] in desegregated neighborhoods, ha[ve] children who attend[] desegregated

schools, and ha[ve] close friends of [an]other race

than d[o] adults . . . [who] attended segregated

schools.”91 They are also more likely as adults to in87 Jaana Juvonen et al., When and How Do Students Benefit

From Ethnic Diversity in Middle School?, 89 CHILD DEV. 1268,

1278 (2018).

88 Chad Loes et al., Effects of Diversity Experiences on Critical Thinking Skills: Who Benefits?, 83 J. HIGHER EDUC. 1, 17

(2012).

89 Nicholas A. Bowman, How Much Diversity is Enough?

The Curvilinear Relationship Between College Diversity Interactions and First-Year Student Outcomes, 54 RES. HIGHER EDUC.

874, 886 (2013).

90 Patricia Gurin et al., The Benefits of Diversity in Education for Democratic Citizenship, 60 J. SOC. ISSUES 17, 28 (2004).

91 Jomills Henry Braddock II & James M. McPartland, Social-Psychological Processes that Perpetuate Racial Segregation,

(continued . . .)

teract with individuals of other races than are students educated in racially homogeneous schools.92 In

addition, racially diverse schools and classrooms produce students who have very high levels of comfort in

dealing and working with individuals of other races

in later life—which they attribute in large part to

their school experiences.93

Conversely, researchers have found that early racial isolation, especially in schools, is significantly associated with a later expressed desire to live around

people of the same race.94 One study found that attending a segregated, predominantly Black school

was influential in choosing to live in a predominantly

Black neighborhood, indicating that more diverse

public schools “may lead in the long run to more integrated neighborhoods over time.”95 Yet another study

shows strong associations between high levels of

19 J. BLACK STUDIES 267, 269 (1989); see also Kristie J.R. Phillips al., Integrated Schools, Integrated Futures? A Case Study of

School Desegregation in Jefferson County, Kentucky, in FROM

THE COURTROOM TO THE CLASSROOM: THE SHIFTING LANDSCAPE

OF SCHOOL DESEGREGATION 239–70 (Claire E. Smrekar & Ellen

B. Goldring, eds. 2009).

92 Lee Sigelman et al., Making Contact? Black-White Social

Interaction in an Urban Setting, 101 AM. J. SOC. 1306, 1322

(Mar. 1996); Peter B. Wood & Nancy Sonleitner, The Effect of

Childhood Interracial Contact on Adult Antiblack Prejudice, 20

INT'L J. INTERCULTURAL REL. 1 (1990).

93 Kurlaender & Yun, supra note 85, at 111, 124–25, 130.

94 Jomills Henry Braddock II & Amaryllis Del Carmen

Gonzalez, Social Isolation and Social Cohesion: The Effects of K–

12 Neighborhood and School Segregation on Intergroup Orientations, 112 TEACHERS COLL. REC. 1631, 1649–51 (2010).

95 Pat Rubio Goldsmith, Learning Apart, Living Apart: How

the Racial and Ethnic Segregation of Schools and Colleges Perpetuates Residential Segregation, 112 TEACHERS COLL. REC.

1602, 1626–27 (2010).

school segregation and later racial isolation in workplaces—a result that held over the long term.96

5. As the foregoing studies explain, racially diverse classrooms produce long-range benefits because

they break the cycle of segregation in neighborhoods,

schools, social networks, and occupations. Equally to

the point, they demonstrate that by closing the door

on racial diversity in schools, we open the door to further racial prejudice and discrimination by perpetuating the racial isolation that breeds such prejudice and

discrimination.

Indeed, those are the effects that have generally

followed bans on race-conscious admissions processes,

which have significantly hurt underrepresented minorities’ access to higher education and long-term

earning potential. California’s Proposition 209, which

banned race-based affirmative action at California

public universities, significantly reduced the enrollment of Black, Latino, and Native American students

in California public universities between 1996 and

2018.97 Longitudinal research shows that the end of

affirmative action caused underrepresented minority

freshman applicants to enter lower-quality colleges,

with the effect of causing their degree attainment to

decline overall and in the STEM field, without any

effect on their performance in challenging courses.98

96 Elizabeth Stearns, Long-Term Correlates of High School

Racial Composition: Perpetuation Theory Reexamined, 112

TEACHERS COLL. REC. 1654, 1670–74 (2010).

97 Thomas Peele & Daniel J. Willis, Dropping Affirmative

Action Had Huge Impact on California’s Public Universities,

EDSOURCE (Oct. 29, 2020).

98 Zachary Bleemer, Affirmative Action, Mismatch, and

Economic Mobility After California’s Proposition 209, 137 Q. J.

ECON. 115 (2022).

Those applicants’ average wages in their twenties

and thirties also declined.99 However, non-minority

applicants—whose more selective university enrollment increased—experienced relatively small longrun educational or wage effects after Proposition

209.100

Bans on race-conscious admissions in various

states also impacted graduate school enrollment,

leading to a decline in the first-time matriculation of

students who are underrepresented students of color

in medical schools101 and other graduate education

programs102 — hindering states’ ability to train a diverse professional workforce to meet the needs of a

multicultural populace.

Bans on the use of race-conscious admissions policies have impacts beyond the admissions process—

influencing colleges’ and universities’ abilities to meet

the needs of a diverse student body. A study on the

effect of Michigan’s Proposal 2, a 2006 ballot initiative creating a state constitutional ban on raceconscious college admissions policies in Michigan,

found “a detrimental influence on the work that is

critical to the success of students of color on campus,

such as campus-level administrators’ ability to meaningfully engage and address the ways in which race

99 Id. at 155.

100 Id. at 156.

101 Liliana M. Garces & David Mickey-Pabello, Racial Diversity in the Medical Profession: The Impact of Affirmative Action Bans on Underrepresented Student of Color Matriculation

in Medical Schools, 86 J. HIGHER EDUC. 264 (2015).

102 Liliana M. Garces, Racial Diversity, Legitimacy, and the

Citizenry: The Impact of Affirmative Action Bans on Graduate

School Enrollment, 36 REV. HIGHER EDUC. 93 (2012).

and racism influence the experience of students.”103

Rather than minimizing difficult conversations on

race, Proposal 2 made it even more difficult to talk

about race and structural factors contributing to education inequities and led to feelings of isolation and

marginalization amongst Black students.104 Lower

levels of diversity and bans on the use of affirmative

action at California public universities were similarly

associated with a more negative racial climate for

Black and Hispanic students.105 Race-conscious admissions bans also create negative perceptions of the

school’s climate, hindering outreach and recruitment

and further impeding diversity efforts.106

Moreover, efforts to bolster minority representation through means other than the use of affirmative

action—such as percentage plans, focus on socioeconomic factors, or increased outreach and recruitment—have been shown to be inadequate alternatives for increasing minority representation in higher

education. Minority enrollment at public universities

in California, Texas, and Washington declined following state bans on race-conscious admissions processes, despite the use of alternative strategies, including

top percent programs, class-based affirmative action,

103 Liliana M. Garces & Courtney D. Cogburn, Beyond Declines in Student Body Diversity: How Campus-Level Administrators Understand a Prohibition on Race-Conscious Postsecondary Admissions Policies, 52 AM. EDUC. RES. J. 828, 849

(2015).

104 Id. at 850–51.

105 William C. Kidder, Misshaping the River: Proposition

209 and Lessons for the Fisher Case, 39 J.C. & U.L. 53, 123

(2013).

106 Id.

and targeted recruitment.107 In California, the state

and University of California system also implemented a significant needs-based financial aid program

which failed to yield adequate diversity, illustrating

how costly and inefficient race-neutral alternatives

are as substitutes for affirmative action.108

The sum of the matter is this: if we are to “hasten

the day when ‘we are just one race,’” Adarand Constructors, 515 U.S. at 275 (Ginsburg, J., dissenting),

we must ensure that our children are educated in the

racially diverse settings that equalize opportunity

and produce significant societal and educational benefits. Accordingly, educational institutions—at the

elementary, secondary, and higher education levels—

should be allowed to give some consideration to race

in order to achieve such diversity. This is not an “illegitimate use[] of race,” City of Richmond v. J.A.

Croson Co., 488 U.S. 469, 493 (1989), but rather is

fully justified under the standard of strict scrutiny by

society’s compelling interest in the education of all of

its children.

107 Mark C. Long, Affirmative Action and Its Alternatives in

Public Universities: What Do We Know?, 67 PUB. ADMIN. REV.

315, 326 (2007).

108 William C. Kidder & Patricia Gándara, Two Decades After the Affirmative Action Ban: Evaluating the University of California’s Race-Neutral Efforts, ETS WHITE PAPER at 33 (2016).

CONCLUSION

The judgments of the courts of appeals—which

uphold Respondents’ limited consideration of race as

one of many factors in making admissions decisions—

should be affirmed.

Respectfully submitted,

ALICE O’BRIEN

Counsel of Record

NICOLE G. BERNER

JASON WALTA

JOHN M. D’ELIA

REBECCA YATES

Service Employees InBETHEL HABTE

ternational Union

National Education

1800 Massachusetts

Association

Ave., N.W.

1201 Sixteenth Street, N.W.

Washington, D.C. 20036 Washington, D.C. 20036

(202) 730-7466

(202) 822-7035

aobrien@nea.org

Counsel for Amici Curiae

August 8, 2022

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.