Petition for Writ of Certiorari — Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al.

No. ______

In the Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

v.

UNIVERSITY OF NORTH CAROLINA, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI BEFORE

JUDGMENT TO THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT

Alan Ruley

BELL, DAVIS & PITT, P.A.

P.O Box 21029

Winston-Salem, NC

27120

(336) 714-4147

Patrick Strawbridge

CONSOVOY MCCARTHY

PLLC

Ten Post Office Square

8th Floor South

PMB #706

Boston, MA 02109

(617) 227-0548

November 11, 2021

Thomas R. McCarthy

Counsel of Record

William S. Consovoy

J. Michael Connolly

Bryan Weir

Cameron T. Norris

James F. Hasson

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

Attorneys for Petitioner

i

QUESTIONS PRESENTED

1. Should this Court overrule Grutter v. Bollinger,

539 U.S. 306 (2003), and hold that institutions of

higher education cannot use race as a factor in admissions?

2. Can a university reject a race-neutral alternative because it would change the composition of the

student body, without proving that the alternative

would cause a dramatic sacrifice in academic quality

or the educational benefits of overall student-body diversity?

ii

PARTIES TO THE PROCEEDING

Petitioner is Students for Fair Admissions

(SFFA). Petitioner was the plaintiff below.

Respondents are the University of North Carolina; the University of North Carolina at Chapel Hill;

the University of North Carolina Board of Governors;

John C. Fennebresque; W. Louis Bissette, Jr.; Joan

Templeton Perry; Roger Aiken; Hannah D. Gage; Ann

B. Goodnight; H Frank Frainger; Peter D. Hans;

Thomas J. Harrelson; Henry W. Hinton; James L.

Holmes, Jr.; Rodney E. Hood; W. Marty Kotis, III; G.

Leroy Lail; Scott Lampe; Steven B. Long; Joan G.

Macneill; Mary Ann Maxwell; W. Edwin McMahan;

W.G. Champion Mitchell; Hari H. Math; Anna Spangler Nelson; Alex Parker; R. Doyle Parrish; Therence

O. Pickett; David M. Powers; Robert S. Rippy; Harry

Leo Smith, Jr.; J. Craig Souza; George A. Sywassink;

Richard F. Taylor; Raiford Trask, III; Phillip D.

Walker; Laura I. Wiley; Thomas W. Ross; Carol L.

Folt; James W. Dean, Jr.; and Stephen M. Farmer.

These parties were defendants below.

Respondents also are Cecilia Polance; Luis

Acosta; Star Wingate-Bey; Laura Ornelas; Kevin

Mills, on behalf of Q.M.; Angie Mills, on behalf of

Q.M.; Christopher Jackson; Julia Nieves, on behalf of

I.M.; Tamika Williams, on behalf of A.J.; Romonia

Jones; and Andrew Brennan. These parties were defendant-intervenors below.

iii

RULE 29.6 STATEMENT

SFFA has no parent company or publicly held

company with a 10% or greater ownership interest in

it.

iv

RELATED PROCEEDINGS

United States District Court (M.D.N.C.):

Students for Fair Admissions, Inc. v. University of

North Carolina, et al., No. 14-cv-954-LCB (Jan.

13, 2017) (order granting motion to intervene)

Students for Fair Admissions, Inc. v. University of

North Carolina, et al., No. 14-cv-954-LCB

(Sept. 29, 2018) (order denying motion to dismiss)

Students for Fair Admissions, Inc. v. University of

North Carolina, et al., No. 14-cv-954-LCB

(Sept. 30, 2019) (order denying motions for

summary judgment)

Students for Fair Admissions, Inc. v. University of

North Carolina, et al., No. 14-cv-954-LCB (May

28, 2020) (order granting partial judgment on

the pleadings)

Students for Fair Admissions, Inc. v. University of

North Carolina, et al., No. 14-cv-954-LCB (Oct.

18, 2021) (trial findings of fact and conclusions

of law)

v

TABLE OF CONTENTS

Questions Presented ................................................... i

Parties to the Proceeding ........................................... ii

Rule 29.6 Statement .................................................. iii

Related Proceedings .................................................. iv

Table of Authorities................................................. viii

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Constitutional and Statutory Provisions

Involved .......................................................................1

Introduction .................................................................2

Statement of the Case .................................................4

A. UNC’s Use of Race in Its Admissions

Process ............................................................4

B. Proceedings Below ..........................................7

Reasons for Granting the Petition ............................10

I.

The Court should grant certiorari to

consider overruling Grutter. ...............................13

A. Grutter is grievously wrong. ........................14

B. Grutter has spawned significant

negative consequences..................................20

vi

C. Grutter has generated no legitimate

reliance interests. .........................................24

II. The Court should also grant certiorari to

consider whether UNC’s admissions

program satisfies strict scrutiny. .......................28

Conclusion .................................................................32

Appendix

Appendix A

Trial Findings of Fact and Conclusions of

Law in the United States District Court for

the Middle District of North Carolina

(Oct. 18, 2021) .............................................. App. 1

Appendix B

Order in the United States District Court

for the Middle District of North Carolina

(May 28, 2020).......................................... App. 187

Appendix C

Memorandum Opinion and Order in the

United States District Court for the

Middle District of North Carolina

(Sept. 30, 2019) ........................................ App. 191

Appendix D

Memorandum Opinion and Order in the

United States District Court for the

Middle District of North Carolina

(Sept. 29, 2018) ........................................ App. 230

vii

Appendix E

Judgment in the United States District

Court for the Middle District of North

Carolina (Nov. 4, 2021) ............................ App. 252

viii

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Peña,

515 U.S. 200 (1995) ................................. 17, 24, 25

Allen v. Cty. Sch. Bd. of Prince Edward Cty.,

249 F.2d 462 (4th Cir. 1957) ............................... 30

Batson v. Kentucky,

476 U.S. 79 (1986) ............................................... 25

Brown v. Board of Education,

347 U.S. 483 (1954) ......................... 3, 4, 15, 17, 25

Bush v. Vera,

517 U.S. 952 (1996) ............................................. 16

Citizens United v. FEC,

558 U.S. 310 (2010) ....................................... 19, 21

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

488 U.S. 469 (1989) ................................... 2, 21, 26

Dred Scott v. Sandford,

60 U.S. 393 (1857) ............................................... 14

Fisher v. Univ. of Tex. at Austin (Fisher I),

570 U.S. 297 (2013) ..................................... passim

Fisher v. Univ. of Tex. at Austin (Fisher II),

136 S.Ct. 2198 (2016) .................................. passim

ix

Franchise Tax Bd. of Calif. v. Hyatt,

139 S.Ct. 1485 (2019) .......................................... 13

Gratz v. Bollinger,

122 F. Supp. 2d 811 (E.D. Mich. 2000) .............. 11

Gratz v. Bollinger,

539 U.S. 244 (2003) ............................. 2, 11, 12, 21

Grutter v. Bollinger,

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

Hopwood v. Texas,

78 F.3d 932 (5th Cir. 1996) ................................. 16

Janus v. AFSCME,

138 S.Ct. 2448 (2018) .............................. 17, 20, 27

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) .............................. 13, 15, 21

Lawrence v. Texas,

539 U.S. 558 (2003) ............................................. 18

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ...............................................2

Metro Broad., Inc. v. FCC,

497 U.S. 547 (1990) ....................................... 16, 17

Miller v. Johnson,

515 U.S. 900 (1995) ............................................. 16

x

Montejo v. Louisiana,

556 U.S. 778 (2009) ............................................. 25

Palmore v. Sidoti,

466 U.S. 429 (1984) ............................................. 15

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

Dist. No. 1, 551 U.S. 701 (2007) ................. passim

Plessy v. Ferguson,

163 U.S. 537 (1896) ................................... 3, 14, 17

Price v. Civil Serv. Comm'n,

604 P.2d 1365 (Cal. 1980) .....................................3

Ramos v. Louisiana,

140 S.Ct. 1390 (2020) .................................. passim

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ............................................. 19

Schuette v. BAMN,

572 U.S. 291 (2014) ..................................... passim

Shaw v. Hunt,

517 U.S. 899 (1996) ............................................. 15

Shaw v. Reno,

509 U.S. 630 (1993) ............................................. 24

Smith v. Allwright,

321 U.S. 649 (1944) ....................................... 24, 25

xi

Trump v. Hawaii,

138 S.Ct. 2392 (2018) .......................................... 25

Washington v. Lee,

263 F. Supp. 327, 331 (M.D. Ala. 1966) ............. 30

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) ............................................. 15

Constitution and Statutes

U.S. Const. amend XIV ...............................................1

Decl. of Independence, 1 Stat. 1 (July 4, 1776) ........ 14

28 U.S.C. §1254(1) .......................................................1

28 U.S.C. §2101(e) .......................................................1

42 U.S.C. § 2000d ........................................................1

Rules

S.Ct. R. 10(c) ..............................................................12

S.Ct. R. 11 ..................................................................10

Other Authorities

2 Cong. Rec. 4083 (1874) ........................................... 14

Blumstein, Grutter and Fisher: A Reassessment

and a Preview, 65 Vand. L. Rev. En Banc 57

(2012) .................................................................... 16

xii

Bollinger, A Comment on Grutter and Gratz v.

Bollinger, 103 Colum. L. Rev. 1589 (2003) ........ 20

Dodge, Largest Ever Student Body at University

of Michigan This Fall, Officials Say,

MLive.com (Oct. 22, 2021) .................................. 27

Graf, Most Americans Say Colleges Should Not

Consider Race or Ethnicity in Admissions,

Pew (Feb. 25, 2019) ............................................. 25

Haidt, Viewpoint Diversity in the Academy.............. 24

Pierre, Demands for Segregated Housing at

Williams College Are Not News, NAS

(May 8, 2019).......................................................24

Rubenfeld, Affirmative Action, 107 Yale L.J.

427 (1997) ............................................................ 20

Schuck, Affirmative Action: Past, Present, and

Future, 20 Yale L. & Pol’y Rev. 1 (2002) ............20

Stiksma, Understanding the Campus

Expression Climate: Fall 2019............................ 24

Supreme Court Practice (11th ed. 2019) ................... 11

Ting, ‘They Lost Partly Because of That Ad’:

How No on Prop. 16 Organizers Knew the

Measure Would Fail, SF Gate (Dec. 2, 2020) ..... 26

xiii

University of California Will No Longer

Consider SAT and ACT Scores, N.Y. Times

(May 15, 2021)..................................................... 32

Watanabe, UC Admits Largest, Most Diverse

Class Ever, But It Was Harder to Get

Accepted, L.A. Times (July 19, 2021) ................. 27

Weybright, Study Finds Increasing

Discrimination Against Asians and Asian

Americans, WSU Insider (Nov. 4, 2020) ............ 23

1

OPINIONS BELOW

The district court’s order granting partial judgment on the pleadings is unreported and reproduced

at App.187-90. The district court’s post-trial findings

of fact and conclusions of law are not yet reported but

are reproduced at App.1-186.

JURISDICTION

The district court’s final judgment was entered on

November 4, 2021. App.252. This petition is filed under Supreme Court Rule 11. The Court has jurisdiction under 28 U.S.C. §1254(1) and §2101(e).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section 1, clause 2 of the Fourteenth Amendment

to the United States Constitution states:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

Section 601 of Title VI of the Civil Rights Act of

1964 (42 U.S.C. §2000d) states:

No person in the United States shall, on the

ground of race, color, or national origin, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial assistance.

2

INTRODUCTION

This case is a companion to Students for Fair Admissions, Inc. v. President and Fellows of Harvard

University, No. 20-1199. Both cases were filed on the

same day. The Harvard case challenges racial preferences at the nation’s oldest private college, and this

case challenges racial preferences at the nation’s oldest public college. The Harvard case asks this Court

to overrule Grutter and hold that Title VI forbids funding recipients from using race in admissions. This case

asks the Court to recognize that, for public schools, the

Fourteenth Amendment’s guarantee of racial neutrality compels the same conclusion. Certiorari before

judgment is appropriate here for the same reasons it

was in Gratz v. Bollinger, the companion case to Grutter that was argued and decided on the same day.

“It is a sordid business, this divvying us up by

race.” League of United Latin Am. Citizens v. Perry,

548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in

part, concurring in the judgment in part, and dissenting in part). “‘[D]iscrimination on the basis of race is

illegal, immoral, unconstitutional, inherently wrong,

and destructive of democratic society.’” City of Richmond v. J.A. Croson Co., 488 U.S. 469, 521 (1989)

(Scalia, J., concurring in the judgment). “‘[E]very time

the government places citizens on racial registers and

makes race relevant to the provision of burdens or

benefits, it demeans us all.’” Fisher v. Univ. of Tex. at

Austin (Fisher I), 570 U.S. 297, 316 (2013) (Thomas,

J., concurring).

“Our nation gave its word over and over again: it

promised in every document of more than two

3

centuries of history that all persons shall be treated

Equally.” Price v. Civil Serv. Comm’n, 604 P.2d 1365,

1390 (Cal. 1980) (Mosk, J., dissenting). “Our constitution,” as Justice Harlan recognized, “is color-blind and

neither knows nor tolerates classes among citizens.”

Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (dissent).

The Court vindicated the promise of equality in Brown

v. Board of Education, 347 U.S. 483 (1954), rejecting

“‘any authority … to use race as a factor in affording

educational opportunities.’” Parents Involved in Cmty.

Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 747

(2007).

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

abandoned the principle of racial neutrality that

Brown vindicated. Grutter did so by improperly affording broad deference to university administrators to

pursue a diversity interest that is far from compelling.

To this end, Grutter endorsed racial objectives that

are amorphous and unmeasurable and thus incapable

of narrow tailoring. Unsurprisingly then, universities

have used Grutter as a license to engage in outright

racial balancing. This case shows that judicial scrutiny under Grutter is anything but strict. A decision

that was written to create no reliance interests, Grutter satisfies every factor that this Court considers

when deciding to overrule precedent.

If this Court revisits Grutter, it should also review

whether universities like UNC are even complying

with existing precedent. They are not. Like Harvard,

UNC rejects any race-neutral alternative that would

change the composition of its student body, even if

those alternatives would improve overall student-

4

body diversity. But public schools have no legitimate

interest in maintaining a precise racial balance, and

they have no compelling interest in preventing minor

dips in average SAT scores. The same Fourteenth

Amendment that required public schools to dismantle

segregation after Brown cannot be cowed by the diktats of university administrators. If California and

Michigan can maintain elite public universities without sorting applicants by race, then North Carolina

can, too. This Court should grant certiorari and reverse the district court.

STATEMENT OF THE CASE

SFFA filed this case against UNC the same day

that it filed its companion case against Harvard. Like

Harvard, UNC is devoted to using race indefinitely

and at every stage of its admissions process. The district court—after seven years of litigation and an

eight-day trial—upheld UNC’s system under a version

of strict scrutiny that was anything but.

A.

UNC’s Use of Race in Its Admissions

Process

As Harvard is the nation’s oldest private college,

UNC is the nation’s oldest public college. App.3.

UNC’s admissions process is highly competitive.

App.23. It receives more than 43,000 applications

each year for a class of about 4,200 students. App.23.

State law requires that no more than 18% of each class

can be from out of state (or UNC suffers major financial penalties); but about twice as many out-of-staters

apply each year as in-staters. App.23 & n.8. Out-of-

5

state applicants thus are admitted at a far lower rate

(12-14%) than in-state applicants (47-50%). App.23.

UNC uses a student’s race as a factor in its admissions process. UNC awards racial preferences to African Americans, Hispanics, and Native Americans;

UNC identifies these students as “underrepresented

minorities.” App.15, n.7, 37. Asian Americans and

whites don’t receive a racial preference; UNC doesn’t

consider these groups “underrepresented” because

their percentage enrollment at UNC is higher “‘than

their percentage within the general population in

North Carolina.’” App.15, n.7, 37; see App.21 (Asian

Americans are not “underrepresented” because they

are 3% of the North Carolina population but 12% of

the UNC student body). Although college admissions

are zero-sum, Fisher v. Univ. of Tex. at Austin (Fisher

II), 136 S.Ct. 2198, 2227 n.4 (2016) (Alito, J. dissenting), UNC insists that being Asian American or white

is never a “negative[]” in its process, D.C.Dkt.244 at

549:12-14.

UNC considers an applicant’s race at “‘every

stage’” of the review process. App.51. In reviewing applications, admissions officers focus intently (and

sometimes crudely) on an applicant’s race, as revealed

by online chats among admissions officers.

•

“I just opened a brown girl who’s an 810

[SAT].”

•

“If its brown and above a 1300 [SAT] put them

in for [the] merit/Excel [scholarship].”

•

“Still yes, give these brown babies a shot at

these merit $$.”

6

•

“I am reading an Am. Ind.”

•

“[W]ith these [URM] kids, I’m trying to at least

give them the chance to compete even if the

[extracurriculars] and essays are just average.”

•

“I don’t think I can admit or defer this brown

girl.”

•

“perfect 2400 SAT All 5 on AP one B in 11th”

“Brown?!”

“Heck no. Asian.”

“Of course. Still impressive.”

•

“I just read a blk girl who is an MC and Park

nominee.”

Pl’s Ex. 84 (D.C.Dkt.163-16); see also Pl’s Ex. 74

(D.C.Dkt.166-6) (“Stellar academics for a Native

Amer/African Amer kid.”); Pl’s Ex. 75 (D.C.Dkt.16327) (“I’m going through this trouble because this is a

bi-racial (black/white) male.”). In the ultimate decision, a student’s race is often the “determinative” factor in whether the student is admitted or denied.

App.112-13.

When awarding racial preferences, UNC’s goal

isn’t to achieve a “critical mass.” UNC does not “discuss the concept of ‘critical mass’ in its Admissions Office, has not determined if it has achieved a critical

mass of underrepresented students, and has not defined the term.” App.54-55; see D.C.Dkt.167 at 144:22145:5 (“[N]o one has directed anybody to achieve a

critical mass, and I’m not even sure we would know

what it is.”). UNC instead uses race to achieve the “educational benefits of diversity.” App.56-58. UNC has

7

never “set forth a proposed time period in which it believes it can end all race-conscious admissions practices.” App.62.

Before SFFA filed this lawsuit, UNC authored an

amicus brief in Fisher I. See UNC-Amicus-Br., Fisher

v. Univ. of Tex. at Austin, No. 11-345 (S. Ct. Aug. 9,

2012). There, UNC told the Court that its use of race

as a factor in admissions was “indispensable in fulfilling its mission.” Id. at 4-5. UNC also noted that it

had rejected a race-neutral alternative that would increase the percentage of underrepresented minorities

admitted to UNC (from 15% to 16%) because average

SAT scores could decline by 56 points (from 1317 to

1262) and first-year GPAs could drop by 0.1 points

(from 3.26 to 3.16). Id. at 33-34.

B.

Proceedings Below

On November 17, 2014—the same day that SFFA

sued Harvard—SFFA sued UNC in the Middle District of North Carolina for violating the Fourteenth

Amendment and Title VI. A 501(c)(3) voluntary membership organization, SFFA is dedicated to defending

the right to equality in college admissions. App.3.

SFFA sued on behalf of its members, including students who were denied admission to UNC and who

stand ready and able to apply to transfer if UNC stops

racially discriminating. App.234-35, 243-44.

In Count III of its complaint, SFFA alleged that

UNC’s admissions process is illegal because it “uses

race as a factor in admissions.” App.188. Although

there was “‘no dispute that [UNC] considers race as a

factor within its admissions process,’” SFFA’s claim

8

was foreclosed by Supreme Court precedent. App.189.

In May 2020, the district court granted UNC partial

judgment on the pleadings on Count III. App.187-90.

In November 2020, the district court held an

eight-day bench trial on SFFA’s remaining claims,

which challenged whether UNC was complying with

existing precedent. The court heard testimony from

UNC employees, UNC students, and experts from

both parties. App.7. SFFA’s expert, a highly respected

economist from Duke University, presented evidence

showing that UNC awards substantial preferences for

African Americans and Hispanics. App.63-64; see

D.C.Dkt.228 at 114:14-224:20; D.C.Dkt.229 at 229:22298:1; D.C.Dkt.247-1 at 12, 15, 33-34, 37-40, 43, 4648. SFFA’s other expert, a leading authority on raceneutral alternatives, presented evidence that UNC

had a number of workable race-neutral alternatives

available, including alternatives that would provide

socioeconomic preferences instead of racial ones.

App.120 & n.39; D.C.Dkt.244 at 424:1-460:11; D.C.

Dkt.247-2 at 13-23.

On October 18, 2021, nearly seven years after

SFFA’s complaint was filed, the district court ruled for

UNC, holding that UNC’s use of race satisfies strict

scrutiny and was consistent with this Court’s precedents. First, the court held that UNC’s use of race was

narrowly tailored because the university uses race

“flexibly as a ‘plus’ factor” and only as “one among

many factors.” App.165-75. The court found that the

non-statistical evidence, including the admissions officers’ chatroom discussions, supra 5-6, was consistent

with “the type of holistic process UNC describes” and

9

didn’t show that race is “a defining feature of [any] application.” App.40-41, 169. Examining the statistical

evidence, the court found that both parties’ experts

were “highly qualified,” App.63-65, but that UNC’s expert’s analysis was “more probative on the issue of

whether race is a dominant factor,” App.171-75. The

court concluded that UNC’s use of race was constitutional because it is the decisive factor in only 5.1% of

out-of-state decisions and 1.2% of in-state decisions.

App.112-13.

Second, the court held that UNC had no viable

race-neutral alternatives that would allow it to

“achieve the educational benefits of diversity about as

well as its current race-conscious policies and practices.” App.176-83. Giving admissions preferences

based on socioeconomic status instead of race, the

court believed, would always fail because “the majority of low-income students are white,” and so universities would just “‘be choosing more white students.’”

App.136-37. In addition, the court rejected as unworkable race-neutral alternatives that would cause small

changes in the admitted class. App.134-35, 139-40.

For example, the court found that one race-neutral alternative was unworkable because underrepresented

minority admissions would decline from 16.5% to

16.0%, average SAT scores would be in the 90th percentile instead of the 92nd percentile, and UNC would

have to admit some students based solely on academic

criteria. App.134 n.43; Dkt.247-2 at 23.

In the end, the district court emphasized, UNC’s

use of race should continue indefinitely. Because race

is “interwoven in every aspect of the lived experience

10

of minority students,” race could never be “ignore[d]”

or “reduce[d] [in] importance.” App.185. Until the nation ended its “struggle with racial inequality,” minority students would continue to be “less likely to be admitted in meaningful numbers on [race-neutral] criteria.” App.186. Thus, despite UNC’s long use of racial

preferences, the university was “far from creating [a]

diverse environment” and still had “much work to do.”

App.184-86.

The district court entered its final judgment on

November 4, 2021. App.252. SFFA immediately appealed to the U.S. Court of Appeals for the Fourth Circuit. See Students for Fair Admissions, Inc. v. Univ. of

N.C., No. 21-2263 (4th. Cir.).

REASONS FOR GRANTING THE PETITION

This Court should grant immediate review because this case presents a question of “imperative

public importance” that is already before the Court in

SFFA v. Harvard. S.Ct. R. 11. This Court regularly

grants certiorari before judgment “in situations where

similar or identical issues of importance [are] already

pending before the Court and where it [is] considered

desirable to review simultaneously the questions

posed in the case still pending in the court of appeals.”

Supreme Court Practice §2.4 (11th ed. 2019) (listing

cases).

This case and Harvard should be heard together.

The first question presented in both cases is the same:

whether this Court should overrule Grutter and hold

that institutions of higher education cannot use race

as a factor in admissions. This Court can resolve that

11

momentous question in either case. But if it decides to

revisit Grutter, its analysis would be more complete if

it considered both a private university (Harvard) and

a public university (UNC) and both the Constitution

(UNC) and Title VI (Harvard and UNC).

This Court acted similarly in Grutter itself. After

the en banc Sixth Circuit ruled for Michigan Law

School, Barbara Grutter asked this Court to review

“[w]hether diversity is a compelling interest that can

justify the narrowly tailored use of race” in admissions. Grutter, 539 U.S. at 322. This Court granted

certiorari. Id. Meanwhile, a district court had upheld

Michigan’s process for using race in undergraduate

admissions. Gratz v. Bollinger, 122 F. Supp. 2d 811,

831 (E.D. Mich. 2000). Jennifer Gratz thus petitioned

for certiorari before judgment so this Court “could address the constitutionality of the consideration of race

in university admissions in a wider range of circumstances.” Gratz v. Bollinger, 539 U.S. 244, 259-60

(2003). This Court agreed, allowing it to consider the

constitutionality of race-based admissions in two key

contexts. The Court should do the same here.

Grutter’s core holding—that universities can use

race in admissions to pursue student-body diversity—

is plainly wrong. It satisfies all the criteria that this

Court considers when overruling precedents. Only

this Court can overrule its own precedent, and

whether to overrule Grutter is “an important question

of federal law that has not been, but should be, settled

by this Court.” S.Ct. R. 10(c). That question was not

raised in the Fisher litigation—the only other time

this Court evaluated a university’s race-based

12

admissions under Grutter. Fisher I, 570 U.S. at 311,

313. This case, especially when paired with Harvard,

presents an ideal opportunity to reexamine Grutter.

If the Court grants certiorari to reconsider Grutter, then it should also grant certiorari on the second

question presented here: whether UNC fails strict

scrutiny because it refuses to use workable race-neutral alternatives. Again, this Court did something

similar in Grutter and Gratz. After concluding that

universities could use race in admissions to pursue

student-body diversity, this Court went on to consider

whether the two admissions programs there satisfied

strict scrutiny—affirming the Sixth Circuit in Grutter

and reversing the district court in Gratz.

As in Gratz, Fisher I, and Harvard, the court below “did not hold the University to the demanding

burden of strict scrutiny.” Fisher I, 570 U.S. at 303.

The district court was presented with multiple workable race-neutral alternatives, including ones that

would improve overall diversity at UNC. The district

court rejected them, however, because they would

change the racial or socioeconomic composition of

UNC’s student body or lead to slightly lower average

SAT scores. But UNC could not show that these

changes would prevent it from achieving the educational benefits of overall student-body diversity—an

interest distinct from racial diversity and the only

compelling interest that this Court has recognized.

And the fact that the government finds a race-neutral

alternative painful or unpleasant has never been a

reason to let it keep classifying its citizens by race.

13

I.

The Court should grant certiorari to consider overruling Grutter.

Overruling precedent is always serious, “[b]ut

stare decisis is not an inexorable command.” Franchise Tax Bd. of Calif. v. Hyatt, 139 S.Ct. 1485, 1499

(2019) (cleaned up). This Court considers overruling a

precedent virtually every Term, many of this Court’s

“most notable and consequential decisions” overruled

precedent, and almost “every current Member of this

Court” voted to overrule “multiple constitutional precedents” in “just the last few Terms.” Ramos v. Louisiana, 140 S.Ct. 1390, 1411 (2020) (Kavanaugh, J., concurring in part) (collecting cases). That’s because stare

decisis “‘is at its weakest when [this Court] interpret[s] the Constitution,’” as it did in Grutter. Knick v.

Twp. of Scott, 139 S.Ct. 2162, 2177 (2019).

When deciding whether to overrule a precedent,

this Court considers “a number of factors.” Hyatt, 139

S.Ct. at 1499. Those factors can be organized into

“three broad considerations”:

1. Is the prior decision “not just wrong, but

grievously or egregiously wrong”?

2. Has the prior decision “caused significant

negative jurisprudential or real-world

consequences”?

3. Would overruling the prior decision “unduly upset reliance interests”?

Ramos, 140 S.Ct. at 1414-15 (Kavanaugh, J., concurring in part). These considerations all point in the

same direction here: Grutter should be overruled.

14

A. Grutter is grievously wrong.

Grutter was wrong the day it was decided. Despite

reaffirming that “all” racial classifications must satisfy strict scrutiny, Grutter held that “student body diversity” can “justify the use of race in university admissions.” 539 U.S. at 325-26. That holding departs

from the Constitution’s original meaning, contradicts

other precedents, has eroded over time, and has no

true defenders.

Grutter has no support in the Fourteenth Amendment’s “historical meaning.” Ramos, 140 S.Ct. at

1405. As written, the Fourteenth Amendment contains no exceptions. The Amendment, according to its

framers, enshrines the principle that “free government demands the abolition of all distinctions founded

on color and race.” 2 Cong. Rec. 4083 (1874). That

principle was not new: the self-evident truth that “all

men are created equal” was a cornerstone of the American founding. Decl. of Independence, 1 Stat. 1 (July

4, 1776). While the country long violated that principle in practice, e.g., Dred Scott v. Sandford, 60 U.S.

393 (1857); Plessy, 163 U.S. 537, those violations did

not alter or diminish the principle itself. As Justice

Harlan immediately recognized in Plessy, “Our constitution is color-blind, and neither knows nor tolerates

classes among citizens.” 163 U.S. at 559 (dissent). His

dissent was ultimately vindicated in Brown, where

this Court denied “‘any authority … to use race as a

factor in affording educational opportunities.’” Parents Involved, 551 U.S. at 747. Because Brown is right,

Grutter is wrong.

15

Grutter also “conflicted with” this Court’s broader

equal-protection jurisprudence. Knick, 139 S.Ct. at

2178. Despite the absolutism of the constitutional

text, this Court has held that racial classifications are

legal if they satisfy strict scrutiny. But this Court often rejects interests as not compelling enough to justify racial classifications. Protecting a child’s best interests isn’t enough. Palmore v. Sidoti, 466 U.S. 429,

433-34 (1984). Neither is remedying societal discrimination. Shaw v. Hunt, 517 U.S. 899, 909-10 (1996).

Creating a racially diverse faculty to provide “role

models” for minority students isn’t compelling either.

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274-76

(1986) (plurality). Why these interests are not compelling—but “‘cross-racial understanding’” and “livelier”

“classroom discussion” are, Grutter, 539 U.S. at 330—

is impossible to explain. Grutter should have rejected

these all-too-familiar justifications for sorting students by race. See Fisher I, 570 U.S. at 320-30

(Thomas, J., concurring).

Grutter’s diversity rationale is not only uncompelling; it flouts basic equal-protection principles. Although Grutter praised the “educational benefits” of

student body diversity writ large, its assumption that

a university can predict, based solely on race, an applicant’s “views” or “experience[s]” is little more than

racial stereotyping. 539 U.S. at 333; see Hop-wood v.

Texas, 78 F.3d 932, 946 (5th Cir. 1996). The Fourteenth Amendment normally forbids “the assumption

that race or ethnicity determines how [individuals] act

or think.” Metro Broad., Inc. v. FCC, 497 U.S. 547, 602

(1990) (O’Connor, J., dissenting); see Bush v. Vera, 517

U.S. 952, 985-86 (1996). If a university wants to admit

16

students with certain experiences (say, overcoming

discrimination), then it can evaluate whether individual applicants have that experience. It cannot simply

use “race as a proxy” for certain experiences or views.

Miller v. Johnson, 515 U.S. 900, 914 (1995). Especially

not today, “in a society in which [racial] lines are becoming more blurred.” Schuette v. BAMN, 572 U.S.

291, 308 (2014) (plurality).

The educational benefits that Grutter identified

are similarly suspect. Grutter insisted that race-based

admissions would “break down racial stereotypes” and

“‘prepare[] students for an increasingly diverse workforce and society.’” 539 U.S. at 330. Grutter thus treats

underrepresented minorities not as the beneficiaries

of racial preferences, but as instruments to provide educational benefits for other, mostly white students.

Blumstein, Grutter and Fisher: A Reassessment and a

Preview, 65 Vand. L. Rev. En Banc 57, 65-66 (2012).

“This is affirmative action gone wild.” Fisher II, 136

S.Ct. at 2232 (Alito, J., dissenting).

Even accepting Grutter’s perverse logic, the Court

required no proof that “a ‘critical mass’ of underrepresented minorities [wa]s necessary” to secure any educational benefits. 539 U.S. at 333; see 288 F.3d 732,

804-05 (6th Cir. 2002) (en banc) (Boggs, J., dissenting). The Court simply deferred to the law school’s “experience and expertise.” 539 U.S. at 333. But that logic

“exhumes Plessy’s deferential approach to racial classifications.” Metro Broad., 497 U.S. at 632 (Kennedy,

J., dissenting). The schools defending segregation, after all, also wanted courts to defer to their experience

and expertise. Fisher I, 570 U.S. at 320-30 (Thomas,

17

J., concurring). But the Brown Court rightly refused

because, contrary to Grutter, the law presumes that

racial classifications “exacerbate rather than reduce

racial prejudice.” Adarand Constructors, Inc. v. Peña,

515 U.S. 200, 229 (1995).

Grutter’s narrow-tailoring reasoning cannot

“‘withstand careful analysis’” either. Janus v. AFSCME, 138 S.Ct. 2448, 2481 n.25 (2018). Narrow tailoring normally demands proof that racial classifications are “necessary” to achieve the compelling interest—that race was a “‘last resort.’” Parents Involved,

551 U.S. at 734-35. But Grutter demands much less.

Race need only have a “minor” impact on diversity.

Fisher II, 136 S.Ct. at 2212. Universities can reject

race-neutral alternatives that, quite circularly, “may

well compromise [their] own definition of … diversity.” Id. at 2214. Universities can also reject alternatives that would compromise their “reputation for academic excellence.” Id. at 2213. And universities can

reject “facially neutral” alternatives, like percentage

plans, that would knowingly “boost minority enrollment.” Id.

This last holding is particularly indefensible. Facially neutral policies are, at the very least, more narrowly tailored than “individual racial classifications.”

Parents Involved, 551 U.S. at 789 (Kennedy, J., concurring in part and concurring in the judgment). They

“are race conscious but do not lead to different treatment based on a classification that tells each student

he or she is to be defined by race.” Id. Strict scrutiny

requires universities to try them “before turning to racial classifications.” Fisher I, 570 U.S. at 312.

18

Grutter’s “foundations” have also “sustained serious erosion.” Lawrence v. Texas, 539 U.S. 558, 576

(2003). Legally speaking, Grutter has no foundations,

“[g]iven how unmoored it was from the start.” Ramos,

140 S.Ct. at 1405. But to the extent “later developments could have done more to undermine” Grutter,

“they have.” Id.

Every time the lower courts have extended Grutter, this Court has reversed. Grutter cannot be applied

to K-12 students. Parents Involved, 551 U.S. at 72225. Grutter creates no right to race-based admissions.

Schuette, 572 U.S. at 300-14. And this Court “clarified” that Grutter does not weaken the narrow-tailoring standard that applies to other racial classifications. Fisher II, 136 S.Ct. at 2209; see Fisher I, 570

U.S. at 312-14. Even in the one case that upheld an

admissions policy under Grutter, this Court stressed

that its decision was “sui generis” and had “limit[ed]

value for prospective guidance.” Fisher II, 136 S.Ct. at

2208-09.

UNC thinks this Court “twice reaffirmed the holding of Grutter” in Fisher I and Fisher II. Dkt.153 at 25.

But Ms. Fisher did not “ask[]” the Court “to overrule

[Grutter],” so this Court did not “consider how much

weight to give stare decisis in assessing [Grutter’s]

continued validity.” Citizens United v. FEC, 558 U.S.

310, 376-77 (2010) (Roberts, C.J., concurring). “The

Court’s unwillingness to overturn [Grutter]” in

Fisher I or Fisher II thus “cannot be understood as a

reaffirmation of that decision.” Id. at 377.

19

In terms of factual foundations, the Harvard litigation revealed that Grutter rests on a lie. Grutter

used Harvard as its model for how to use race. 539

U.S. at 335-39. But while Harvard insinuated that it

uses race as one small factor to break ties between

qualified candidates, Regents of Univ. of Cal. v. Bakke,

438 U.S. 265, 323-24 (1978) (op. of Powell, J.), it actually obsesses over race throughout its process and

awards massive preferences to certain groups. See

Pet’n for Cert. 8-12, SFFA v. Harvard, No. 20-1199

(S. Ct. Feb. 25, 2021) (Harvard Pet’n). Harvard also

neglected to mention that its policies were designed to

screen out disfavored minorities—first Jews, now

Asian Americans. See id. at 4-19.

For its part, UNC has never tied its admissions

program to this Court’s precedent. UNC does not use

race to enroll “a ‘critical mass’ of underrepresented

minorities.” Grutter, 539 U.S. at 333. Though critical

mass is the only concept this Court has ever approved,

UNC does not pursue that goal, use that metric, or

even understand what “critical mass” means. UNC

also disagrees that race-based admissions are “‘a temporary matter’” that should “terminate … as soon as

practicable.” Id. at 342-43. Since Grutter, UNC has

not decreased its use of race, and its racial preferences

have no end in sight.

UNC’s disregard for Grutter is not unusual; essentially no defenders of race-based admissions “support

the line that it has taken this Court over 40 years to

draw.” Janus, 138 S.Ct. at 2481-82. Several Justices

have maintained, contrary to Grutter, that policies

meant to “benefit” racial minorities should not receive

20

strict scrutiny in the first place. E.g., Fisher I, 570

U.S. at 336-37 (Ginsburg, J., dissenting); Schuette,

572 U.S. at 373-74 (Sotomayor, J., dissenting); Parents Involved, 551 U.S. at 829-37 (Breyer, J., dissenting). Elite universities agree. Shortly after Grutter

was decided, the defendant in that case confessed that

he had pressed “the ‘diversity’ rationale” as a litigation strategy. Bollinger, A Comment on Grutter and

Gratz v. Bollinger, 103 Colum. L. Rev. 1589, 1590-91

(2003). He bemoaned that he could not defend racial

preferences as “a ‘remedy’ for past societal discrimination”—what everyone in higher education “really believed.” Id.; accord Schuck, Affirmative Action: Past,

Present, and Future, 20 Yale L. & Pol’y Rev. 1, 34-36

(2002); Rubenfeld, Affirmative Action, 107 Yale L.J.

427, 471-72 (1997).

That no one believes in Grutter suggests that

Grutter is not worth believing in. Grutter’s “defenders”

are no doubt entitled to “base it on [other] concerns …

rather than the reasoning of the opinion itself.” Knick,

139 S.Ct. at 2178. But they are not entitled to do so

while also claiming the mantle of stare decisis. Citizens United, 558 U.S. at 384-85 (Roberts, C.J., concurring).

B. Grutter has spawned significant negative consequences.

Grutter has also proven “unworkable in practice.”

Knick, 139 S.Ct. at 2178. While the Fourteenth

Amendment contains no exceptions to the rule of “racial neutrality,” this Court has applied a “case-bycase” approach that reviews each racial classification

under “strict scrutiny.” Croson, 488 U.S. at 518-19

21

(Kennedy, J., concurring in part and concurring in the

judgment). But “the assumption” underlying this approach is that, in practice, “the strict scrutiny standard will operate in a manner generally consistent with

the imperative of race neutrality.” Id. at 519. Strict

scrutiny is supposed to approximate an outright ban

“because [the standard] forbids the use even of narrowly drawn racial classifications except as a last resort.” Id.

As it turns out, narrow tailoring does not meaningfully limit universities’ use of race. This Court’s

precedents encourage universities to “resort to camouflage”—to use “winks, nods, and disguises” instead of

explicit racial quotas. Gratz, 539 U.S. at 304-05 (Ginsburg, J., dissenting). Obscurity, after all, is the only

way a university could navigate Grutter’s Delphic instructions. How else could a school seek a “critical

mass” of racial minorities without seeking “‘some

specified percentage’”? 539 U.S. at 329-30. Or make

race “‘outcome determinative’” for minorities without

making it the “defining feature” of their application?

Id. at 337-39.

The only way to test whether universities’ obscure

policies satisfy Grutter’s vague boundaries is through

“prolong[ed]” litigation, id. at 348 (Scalia, J., concurring in part and dissenting in part)—an increasingly

unrealistic option. This case alone has required nearly

seven years of expensive, cumbersome litigation. A

few individual applicants (like Allan Bakke, Jennifer

Gratz, Barbara Grutter, and Abigail Fisher) have

brought these cases in the past. But individuals’

claims for prospective relief expire once they

22

graduate, and their claims for damages greatly “narrow” the scope of judicial review. Fisher II, 136 S.Ct.

at 2210. And nowadays, an individual plaintiff would

risk the unspeakable cruelty that Ms. Fisher faced

when she sued the University of Texas. See Dkt.1504, SFFA v. Harvard, No. 14-cv-14176 (D. Mass. Apr.

29, 2016) (documenting the threats, insults, and harassment). These costs make narrow tailoring an illusory check on universities’ use of race.

In addition to these “jurisprudential consequences,” Grutter has had significant “real-world consequences.” Ramos, 140 S.Ct. at 1415 (Kavanaugh, J.,

concurring in part). Most acutely, Grutter sustains admissions programs that intentionally discriminate

against historically oppressed minorities. Jewish students were the first victims of holistic admissions, and

Asian Americans are the main victims today. Asians

have faced enormous racial discrimination in this

country, from the Chinese Exclusion Act, to the internment of Japanese Americans, to modern scapegoating over COVID-19. Weybright, Study Finds Increasing Discrimination Against Asians and Asian

Americans,

WSU

Insider

(Nov.

4,

2020),

bit.ly/39rc9YI. Every day, Asian Americans are stereotyped as shy, passive, perpetual foreigners, and

model minorities who are interested only in math and

science. Harvard Pet’n 30-31.

By considering race alongside subjective criteria,

universities invite admissions officers to rely on antiAsian stereotypes. These subjective criteria also conceal unspoken ceilings on Asian-American admissions. The disparities that Asian Americans face

23

compared to their white peers are so stark that, when

SFFA showed the data to a high-school counselor in

Harvard, she started crying in her deposition. See

Dkt.414-3 at 150-55, Harvard, No. 14-cv-14176

(D. Mass. June 15, 2018) (explaining that she was crying “[b]ecause these numbers make it seem like

there’s discrimination, and I love these kids and I

know how hard they work”).

This discrimination is not news to Asian-American high-schoolers: An entire industry exists to help

them appear “less Asian” on their college applications;

and the unlevel playing field contributes to their unusually high levels of anxiety, depression, and suicide.

Harvard Pet’n 31. These ongoing “effects,” combined

with the “racist origins” of holistic admissions,

“strongly support overruling” Grutter. Ramos, 140

S.Ct. at 1417 (Kavanaugh, J., concurring in part); see

Harvard Pet’n 4-5.

More broadly, Grutter tells universities that it’s

okay to treat students differently based on race—a legal imprimatur with well-known repercussions. Racial preferences, this Court has explained, are poisonous. They “stimulate our society’s latent race consciousness,” “delay the time when race will become …

truly irrelevant,” and “perpetuat[e] the very racial divisions the polity seeks to transcend.” Shaw v. Reno,

509 U.S. 630, 643 (1993); Adarand, 515 U.S. at 22729; Schuette, 572 U.S. at 308 (plurality).

These repercussions are precisely what has reverberated in Grutter’s wake. Far from pursuing “‘integration of [their] classrooms and residence halls,’”

24

Grutter Resp’ts’ Br. 5, universities are now openly embracing segregation—encouraging race-specific graduations, housing, orientations, networking, and more.

Pierre, Demands for Segregated Housing at Williams

College Are Not News, NAS (May 8, 2019),

bit.ly/2KasdoS. And their obsession with race has impeded their progress toward Grutter’s true aim: obtaining a diversity of viewpoints. 539 U.S. at 330; see

Haidt, Viewpoint Diversity in the Academy,

bit.ly/2LOGnfM; Stiksma, Understanding the Campus Expression Climate: Fall 2019, bit.ly/2XJN45v.

One of the biggest obstacles to achieving Grutter’s

aims, it seems, is Grutter itself.

C. Grutter has generated no legitimate reliance interests.

Grutter cannot be sustained in the name of reliance interests. This Court puts little stock in reliance

interests when it overrules precedents, like Grutter,

that authorize racial classifications. E.g., Smith v. Allwright, 321 U.S. 649, 665 (1944) (overruling Grovey v.

Townsend); Batson v. Kentucky, 476 U.S. 79, 95-96

(1986) (overruling Swain v. Alabama); Trump v. Hawaii, 138 S.Ct. 2392, 2423 (2018) (overruling Korematsu). Reliance interests did not deter the Court

from dismantling segregation, even though it recognized Brown’s “wide applicability” and the “considerable complexity” of enforcement. 347 U.S. at 495.

That’s because no one has a legitimate interest in

treating people differently based on their skin color—

and certainly not an interest that could “outweigh the

interest we all share in the preservation of our constitutionally promised liberties.” Ramos, 140 S.Ct. at

25

1408. When a decision of this Court “undermines the

fundamental principle of equal protection as a personal right,” it is “the principle,” not the decision, that

“must prevail.” Adarand, 515 U.S. at 235 (opinion of

O’Connor, J.).

Because Grutter departs so far from our basic ideals, the decision has not “‘become part of our national

culture.’” Ramos, 140 S.Ct. at 1406. Grutter “is only

two decades old”—a lack of “antiquity” that “cut[s] in

favor of abandoning [it].” Montejo v. Louisiana, 556

U.S. 778, 793 (2009). And most Americans believe that

colleges and universities should not consider race at

all when making admissions decisions (73%), including strong majorities of African-Americans (62%) and

Hispanics (65%). Graf, Most Americans Say Colleges

Should Not Consider Race or Ethnicity in Admissions,

Pew (Feb. 25, 2019), pewrsr.ch/2Xq43K0. Several

States have expressly banned their universities from

considering race—including the State that prevailed

in Grutter. Schuette, 572 U.S. at 298-99. California,

too, has long prohibited racial preferences. In 2020,

despite an expensive and visible campaign to reinstate racial preferences, Californians voted by double

digits to retain their ban. Ting, ‘They Lost Partly Because of That Ad’: How No on Prop. 16 Organizers

Knew the Measure Would Fail, SF Gate (Dec. 2, 2020),

bit.ly/2XBrmAZ.

Among this Court’s precedents, Grutter has a

uniquely weak claim to reliance interests because “the

opinion contains its own self-destruct mechanism.”

539 U.S. at 394 (Kennedy, J., dissenting). Grutter concludes with a warning that the Court expects “racial

26

preferences will no longer be necessary” in “25 years.”

Id. at 343 (majority); accord id. at 350-51 (Thomas, J.,

concurring in part and dissenting in part). While this

2028 end date was somewhat arbitrary, the principle

underlying it was not. “[A]ll race-conscious admissions programs” must have “a termination point,”

Grutter stressed, to ensure that their “‘deviation from

the norm of equal treatment’” serves “‘the goal of

equality itself.’” Id. at 342 (majority) (quoting Croson,

488 U.S. at 510). The “‘acid test of their justification,’”

Grutter noted, is “their efficacy in eliminating the

need for any racial or ethnic preferences at all.’” Id. at

343.

If Grutter is right—if all race-based admissions

must end and universities must decrease their reliance on race over time—then Grutter cannot create

meaningful reliance interests. Anyone treating Grutter as a permanent blessing of race-based admissions

is failing to heed the opinion itself. No one should be

structuring affairs around a practice that federal law

“barely—and only provisionally—permits.” Schuette,

572 U.S. at 317 (Scalia, J., concurring in the judgment).

While overturning Grutter will mean that universities can no longer use race in admissions, the burden

of changing illegal policies “‘is not a compelling interest for stare decisis.’” Janus, 138 S.Ct. at 2485 n.27.

And the changes here need not be “‘extensive.’” Id.

Most universities “can keep their [admissions] systems exactly as they are”—with holistic, individualized review that considers all legitimate factors—

“only they cannot” use race itself as a factor. Id. Real

27

diversity would not decline (and would likely improve), given the availability of race-neutral alternatives. The University of California, for example,

boasts that it just admitted its “most diverse class

ever,” despite the State’s ban on racial preferences.

Watanabe, UC Admits Largest, Most Diverse Class

Ever, But It Was Harder to Get Accepted, L.A. Times

(July 19, 2021), https://lat.ms/3Cn77JZ. So too did the

University of Michigan, whose 2021 incoming class “is

among the university’s most racially and ethnically diverse classes” ever, with “37% of first-year students

identifying as persons of color.” Dodge, Largest Ever

Student Body at University of Michigan This Fall, Officials

Say,

MLive.com

(Oct.

22,

2021),

bit.ly/3EgLAD2.

Nor would overturning Grutter upset any reliance

interests of students. Prospective students do not

“rely” on getting preferences tied to their race—something they cannot control. And no admitted student

would be affected by SFFA’s forward-looking relief. As

for current students, ending racial preferences will

take time, even in this case. Hardly anyone on campus

now will still be there when the first class admitted

without racial preferences arrives.

* * *

This case presents a unique opportunity to rectify

Grutter’s error. Paired with Harvard, this case will allow the Court to resolve the ongoing validity of racebased admissions under both Title VI and the Constitution—in cases involving our nation’s first public college and first private college, brought by the same

plaintiff, and with trial records that are extensive and

28

fully developed over more than a decade of combined

litigation. Now is the time to “stop discrimination on

the basis of race” by “stop[ping] discrimination on the

basis of race.” Parents Involved, 551 U.S. at 748.

II. The Court should also grant certiorari to

consider whether UNC’s admissions program satisfies strict scrutiny.

This Court should also review whether UNC is

complying with existing precedent. If Grutter is overruled, then this Court will benefit from detailed briefing on the race-neutral alternatives available to UNC.

Because those alternatives are available to many

schools, briefing this question will help the Court assess what a post-Grutter world would look like and

why Grutter’s departure from racial neutrality is

wholly unjustified. If Grutter is clarified or narrowed,

then the lower courts would benefit from this Court’s

application of strict scrutiny here—an analysis that

this Court performed in Gratz without waiting for the

circuit court’s judgment.

Under this Court’s precedents, UNC’s admissions

program must withstand strict scrutiny. Its use of

race must be “narrowly tailored” to achieve “the only

interest that this Court has approved in this context”:

the educational benefits of “student body diversity.”

Fisher I, 570 U.S. at 314-15. To be narrowly tailored,

race-based admissions must be “‘necessary’” to achieving those educational benefits. Id. at 312. Race is not

necessary if a “workable race-neutral alternative[]” is

available—i.e., if the university “could achieve sufficient diversity without using racial classifications.”

Id.

29

UNC has workable race-neutral alternatives. For

example, it could set aside 750 seats in the class for

disadvantaged applicants and fill the rest of the class

with the most academically qualified students.

App.134 n.43. This alternative would increase socioeconomic diversity while maintaining racial diversity

and academic excellence. App.134 n.43; D.C.Dkt.244

at 443:13-448:20; Dkt.247-2 at 23. Other alternatives,

such as admitting the top academic performers in

each North Carolina high school, produce similar results. App.138-41; see also D.C.Dkt.244 at 424:1450:4; D.C.Dkt.247-2 at 13-23.

Still more successful alternatives have been used

by public universities in States where racial preferences are banned (such as UC-Berkeley and UCLA).

These universities have, for example, increased socioeconomic preferences; increased financial aid; adopted

policies promoting geographic diversity, including

percentage plans and the use of zip codes; eliminated

preferences for legacies; eliminated preferences for

children of faculty and staff; eliminated early action;

increased recruitment efforts; increased admission of

community college transfers; and developed partnerships with disadvantaged high schools. See

D.C.Dkt.244 at 412:22-417:4-13, 449:10-450:4. Those

institutions remain elite and, by their telling, diverse.

See supra I.C.

In concluding that UNC must continue using race,

the district court applied strict scrutiny in name only.

Like the First Circuit in Harvard, the district court

rejected race-neutral alternatives because they would

meaningfully change UNC’s “‘actual’” outcomes.

30

App.126, 143-44. But the government cannot distribute benefits and burdens based on race—the most odious classification known to American law—because

race neutrality would cause a public institution to

change. Desegregation required radical changes, but

those real and threatened consequences did not deter

this Court from enforcing the Constitution’s demands.

E.g., Allen v. Cty. Sch. Bd. of Prince Edward Cty., 249

F.2d 462, 465 (4th Cir. 1957) (that “the schools might

be closed” could not justify continued segregation);

Washington v. Lee, 263 F. Supp. 327, 331 (M.D. Ala.

1966) (“no consideration of prison security or discipline” could justify continued segregation of Alabama

penal facilities), aff’d, 390 U.S. 333 (1968).

The question is not whether race-neutral alternatives will change an institution, or whether the university finds them painful or philosophically disagreeable. The question is whether race-neutral alternatives “‘could promote the substantial interest about as

well and at tolerable administrative expense.’”

Fisher I, 570 U.S. at 311-12. The substantial interest

here is broad student-body diversity, not “‘racial diversity.’” Id. So the district court was wrong to reject

alternatives because they would require UNC to admit, for example, fewer minority students from

wealthier families, App.131-32; more white students

from poorer families, App.136-37; slightly fewer unrepresented minorities, App.134 & n.43, 139-40; or

0.5% Native Americans instead of 1.8%, App.139;

D.C.Dkt.251-1 at 38; D.C.Dkt.154-22, Ex. 11, Tbl.1.

UNC would have to prove that these minor changes

would prevent it from achieving student-body diversity writ large. That robust evidentiary showing was

31

not made here, and couldn’t possibly be made if the

district court was right that race plays only a minor

role at UNC. Cf. App.112-13, 175. That universities in

California and Michigan are more racially diverse

than ever before means that the evidence UNC needs

almost certainly doesn’t exist.

While this Court’s precedents do not require universities to tolerate a “dramatic sacrifice” of diversity

or academic excellence, UNC is not being asked to

make any dramatic sacrifices. Grutter, 539 U.S. at

340. UNC is not being asked to, for example, admit

students through a lottery. See id. Nor is UNC being

asked to “abandon … academic selectivity.” Id.

Schools can remain elite while tolerating a dip in SAT

scores. Cf. App.134 & n.43, 139-40. Concluding otherwise is particularly odd given the fact that many highquality schools are abandoning this metric. See University of California Will No Longer Consider SAT and

ACT Scores, N.Y. Times (May 15, 2021),

nyti.ms/3ojysqv (noting that “[m]ore than half of the

country’s four-year colleges and universities dismissed the ACT or SAT for fall 2021 admission[,] including top universities like Brown, Caltech, Carnegie

Mellon, Columbia, the University of Virginia and

Yale”). Indeed, UNC itself is perfectly willing to sacrifice this metric to meet its racial goals. App.48, 73-78;

Dkt.247.1 at 12, 15. In all events, slight dips in average SAT scores are a small price to pay in service of

ending state-sanctioned discrimination against high

schoolers based on race.

CONCLUSION

This Court should grant certiorari.

32

Alan Ruley

BELL, DAVIS & PITT, P.A.

P.O Box 21029

Winston-Salem, NC 27120

(336) 714-4147

Thomas R. McCarthy

Counsel of Record

William S. Consovoy

J. Michael Connolly

Bryan Weir

Cameron T. Norris

James F. Hasson

CONSOVOY MCCARTHY PLLC

1600 Wilson Blvd., Ste. 700

Arlington, VA 22209

(703) 243-9423

tom@consovoymccarthy.com

Patrick Strawbridge

CONSOVOY MCCARTHY PLLC

Ten Post Office Square

8th Floor South PMB #706

Boston, MA 02109

(617) 227-0548

November 11, 2021

Attorneys for Petitioner