Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al.

No. 21-707

In The

Supreme Court of the United States

____________________

STUDENTS FOR FAIR ADMISSIONS, INC.,

v.

Petitioner,

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

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION, CENTER FOR

EQUAL OPPORTUNITY, REASON

FOUNDATION, CHINESE AMERICAN

CITIZENS ALLIANCE - GREATER NEW YORK,

YI FANG CHEN, COALITION FOR TJ, AND

PROJECT 21 IN SUPPORT OF PETITIONER

____________________

JOSHUA P. THOMPSON

WENCONG FA*

ALISON SOMIN

*Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

WFa@pacificlegal.org

Counsel for Amici Curiae

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

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 4

REASONS TO GRANT THE PETITION................... 8

I.

Grutter Should Be Overruled Because It Is

Grievously Wrong .......................................... 8

A.

There Is No Higher Education Exception to

Equality Under the Law ............................. 8

B.

The Diversity Rationale Rests Upon

Arbitrary Racial Classifications ............... 11

C.

Racial Classifications Perpetuate

Harmful Stereotypes ................................ 14

II.

Grutter Should Be Overruled Because It

Is Unworkable ............................................. 16

CONCLUSION.......................................................... 20

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) ..................................... 2, 4, 8

Bartlett v. Strickland,

556 U.S. 1 (2009) ................................................. 4

Brown v. Bd. of Educ. of Topeka,

347 U.S. 483 (1954) ............................................. 9

Christa McAuliffe Intermediate School PTO,

Inc., et al. v. De Blasio, et al.,

1:18-cv-11657

(S.D.N.Y. filed Dec. 13, 2018).............................. 3

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

488 U.S. 469 (1989) ......................................... 2, 9

Coalition for TJ v. Fairfax Cty. Sch. Bd.,

1:21-cv-00296

(E.D. Va. filed Mar. 10, 2021) ............. 1, 4, 13, 15

Collins v. Meyers,

1:21-cv-2713-WJM-NYW

(D. Col. Oct. 12, 2021) ......................................... 1

Fisher v. Univ. of Texas at Austin,

136 S. Ct. 2198 (2016) (Fisher II)........................ 2

Fisher v. Univ. of Texas at Austin,

570 U.S. 297 (2013) (Fisher I) ....................... 1, 14

Gratz v. Bollinger,

539 U.S. 244 (2003) ......................................... 2, 5

Grutter v. Bollinger,

539 U.S. 306 (2003) ................................... 2, 6–10

iv

Knick v. Twp. of Scott,

139 S. Ct. 2162 (2019) ....................................... 11

League of United Latin Am. Citizens v.

Perry, 548 U.S. 399 (2006) ............................... 13

Miller v. Johnson,

515 U.S. 900 (1995) ..................................... 12, 14

Parents Involved in Cmty. Schs. v. Seattle

Sch. Dist. No. 1,

551 U.S. 701 (2007) ........................... 2, 11, 12, 19

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ............................ 6, 16, 17

Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ............................................. 2

Ricci v. DeStefano,

557 U.S. 557 (2009) ............................................. 2

Rice v. Cayetano,

528 U.S. 495 (2000) ............................................. 8

Shelby Cty. v. Holder,

570 U.S. 529 (2013) ............................................. 4

Taxman v. Bd. of Educ. of Twp. of

Piscataway,

91 F.3d 1547 (3d Cir. 1996) .............................. 10

United Steelworkers v. Weber,

443 U.S. 193 (1973) ........................................... 11

Wynn v. Vilsack,

3:21-cv-514-MMH-LLL, 2021 WL

2580678 (M.D. Fla. June 23, 2021) ..................... 1

Statute

42 U.S.C. § 2000d.................................................. 5, 8

v

Constitutional Provision

U.S. Const. amend. XIV, cl. 1 ........................... 5, 6, 8

Rules of Court

Sup. Ct. R. 37.2(a) ..................................................... 1

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

Other Authorities

2 Cong. Rec. 4083 (1874) .......................................... 8

Bernstein, David E., The Modern American

Law of Race,

94 S. Cal. L. Rev. 171 (2021) ............................... 7

Cole, Stephen & Barber, Elinor, Increasing

Faculty Diversity: The Occupational

Choices of High-Achieving Students

(2003) ................................................................. 18

de Blasio, Bill, Our Specialized Schools

Have a Diversity Problem. Let's Fix It.,

Chalkbeat (June 2, 2018),

https://chalkbeat.org/posts/ny/2018/06/02

/mayor-bill-de-blasio-new-york-city-willpush-for-admissions-changes-at-eliteand-segregated-specialized-high-schools/ ......... 16

Elliott, Rogers, et al., The Role of Ethnicity

in Choosing and Leaving Science in

Highly Selective Admissions,

37 Res. Higher. Ed. 681 (1996) ......................... 17

Fa, Wencong, The Trouble with Racial

Quotas in Disparate Impact Remedial

Orders,

24 Wm. & Mary Bill Rts. J. 1169 (2016)........... 19

vi

Nagai, Althea, Campus Diversity and

Student Discontent: The Cost of Race

and Ethnic Preferences in College

Admissions, Center for Equal

Opportunity, Jan. 27, 2021,

https://www.ceousa.org/2021/01/27/camp

us-diversity-and-student-discontent-thecosts-of-race-and-ethnic-preferences-incollege-admissions-2/ ................................... 18, 19

Nagai, Althea, Too Many Asian Americans:

Affirmative Discrimination in Elite

College Admissions, Center for Equal

Opportunity, May 22, 2018,

http://www.ceousa.org/attachments/artic

le/1209/AN.Too%20Many%20AsianAms.

Final.pdf ............................................................. 15

Pager, Sean A., Antisubordination of

Whom? What India's Answer Tells Us

About the Meaning of Equality in

Affirmative Action,

41 U.C. Davis L. Rev. 289 (Nov. 2007) ............. 13

Petition for Writ of Certiorari, Students for

Fair Admissions, Inc. v. President and

Fellows of Harvard University,

No. 20-1199 (docketed Feb. 25, 2021) ................. 6

Princeton Review, Cracking College

Admissions (2d ed. 2004)................................... 14

Sander, Richard H., A Systemic Analysis of

Affirmative Action in Law Schools,

57 Stan. L. Rev. 367 (2004) ................................. 7

vii

Smyth, Frederick L. & McArdle, John J.,

Ethnic and Gender Differences in Science

Graduation Rates at Selective Colleges

with Implications for Admissions Policy

and College Choice,

4 Res. Higher Educ. 353 (2004)......................... 17

Wood, Peter, Diversity: The Invention of a

Concept (2003) ..................................................... 7

1

INTEREST OF AMICI CURIAE

Founded in 1973, Pacific Legal Foundation

(PLF) is a nonprofit legal foundation that defends the

principles of liberty and limited government,

including equality before the law. 1 For over 40 years,

PLF has litigated in support of the rights of

individuals to be free of racial discrimination. PLF is

currently litigating, or has recently litigated, to

vindicate the equal protection rights of children in

New York, Virginia, Connecticut, and Maryland;

small business owners in Colorado; and farmers in

Florida, Illinois, and several other states. See, e.g.,

Coal. for TJ v. Fairfax Cty. Sch. Bd., 1:21-cv-00296CMH-JFA, ECF No. 50 (E.D. Va. May 26, 2021)

(denying a motion to dismiss in a case involving racial

discrimination in K-12 admissions); Collins v. Meyers,

1:21-cv-2713-WJM-NYW, ECF No. 14 (D. Col. Oct. 12,

2021) (granting TRO in case involving minorityowned business preference in COVID relief program);

Wynn v. Vilsack, 3:21-cv-514-MMH-LLL, ECF No. 41,

2021 WL 2580678 (M.D. Fla. June 23, 2021) (granting

preliminary injunction against USDA’s race-based

farm loan forgiveness program). PLF has also

participated as amicus curiae in nearly every major

Supreme Court case involving racial classifications in

the past three decades, including Fisher v. Univ. of

1 Pursuant to Rule 37.2(a), all parties have consented to the filing

of this brief. All parties received notice of Amici Curiae’s intent

to file this brief at least 10 days prior to the due date. Pursuant

to Rule 37.6, Amici Curiae affirm that no counsel for any party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than Amici Curiae,

their members, or their counsel made a monetary contribution to

its preparation or submission.

2

Texas at Austin, 570 U.S. 297 (2013) (Fisher I); Fisher

v. Univ. of Texas at Austin, 136 S. Ct. 2198 (2016)

(Fisher II); Parents Involved in Cmty. Schs. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701 (2007); Gratz v.

Bollinger, 539 U.S. 244 (2003); Adarand Constructors,

Inc. v. Pena, 515 U.S. 200 (1995); City of Richmond v.

J.A. Croson Co., 488 U.S. 469 (1989); and Regents of

the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

The Center for Equal Opportunity (CEO) is a

research and education organization formed pursuant

to Section 501(c)(3) of the Internal Revenue Code and

devoted to issues of race and ethnicity. Its

fundamental vision is straightforward: America has

always been a multiethnic and multiracial nation, and

it is becoming even more so. This makes it imperative

that our national policies do not divide our people

according to skin color and national origin. Rather,

these policies should emphasize and nurture the

principles that unify us. E pluribus unum: out of

many, one. CEO supports colorblind policies and seeks

to block the expansion of racial preferences in all

areas. CEO has participated as amicus curiae in

numerous cases relevant to the analysis of this case.

See Ricci v. DeStefano, 557 U.S. 557 (2009); Parents

Involved, 551 U.S. 701; Grutter v. Bollinger, 539 U.S.

306 (2003).

Reason Foundation (Reason) is a national,

nonpartisan, and nonprofit public policy think tank,

founded in 1978. Reason’s mission is to advance a free

society by applying and promoting libertarian

principles and policies—including free markets,

individual liberty, and the rule of law. Reason

supports dynamic market-based public policies that

allow and encourage individuals and voluntary

3

institutions to flourish. Reason advances its mission

by publishing Reason Magazine, as well as

commentary on its websites, and by issuing policy

research reports. To further Reason’s commitment to

“Free Minds and Free Markets” and equality before

the law, Reason selectively participates as amicus

curiae in cases raising significant constitutional

issues. Reason has participated as amicus curiae in

nearly every major Supreme Court case involving

racial classifications in the past three decades.

The Chinese American Citizens Alliance Greater New York (CACAGNY) is a chapter of the

Chinese American Citizens Alliance, the oldest Asian

American Advocacy group in the country.

CACAGNY’s mission is to empower Chinese

Americans, as citizens of the United States of

America, by advocating for Chinese-American

interests based on the principles of fairness and equal

opportunity, and guided by the ideals of patriotism,

civility, dedication to family and culture, and the

highest ethical and moral standards.

Yi Fang Chen is a mother of a fourth grader at

P.S. 102 in Brooklyn. Ms. Chen was born in China and

moved to the United States in 1996. Although she

came to this country speaking little English, she

eventually obtained a doctorate in statistics from

Stanford University, and now works as a data

scientist in Manhattan. PLF currently represents

Ms. Chen and CACAGNY in a lawsuit challenging

New York City’s discriminatory changes to its

admissions program for the city’s specialized schools.

See Christa McAuliffe Intermediate School PTO, Inc.,

et al. v. De Blasio, et al., 1:18-cv-11657 (S.D.N.Y. filed

Dec. 13, 2018).

4

The Coalition for TJ is a group of parents,

students, alumni, and community members of

Thomas Jefferson High School for Science and

Technology, known as “TJ.” The Coalition’s

approximately 5,000 supporters are primarily Asian

American parents, who regularly attend and speak at

school board meetings, organize rallies, engage

legislators, and educate their community on the value

of merit-based admissions for specialized schools like

TJ. PLF currently represents the Coalition for TJ in

its challenge to Fairfax County’s discriminatory

changes to its admissions policy for Thomas Jefferson

High School for Science and Technology. See Coalition

for TJ v. Fairfax Cty. Sch. Bd., 1:21-cv-00296 (E.D. Va.

filed Mar. 10, 2021).

Project 21, the National Leadership Network of

Black Conservatives, is an initiative of the National

Center for Public Policy Research to promote the

views of African-Americans whose entrepreneurial

spirit, dedication to family, and commitment to

individual responsibility have not traditionally been

echoed by the nation’s civil rights establishment.

Project 21 has participated as amicus curiae in

significant cases involving equal protection principles.

See, e.g., Shelby Cty. v. Holder, 570 U.S. 529 (2013);

Bartlett v. Strickland, 556 U.S. 1 (2009).

INTRODUCTION AND

SUMMARY OF ARGUMENT

“In the eyes of government, we are just one race

here. It is American.” Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).

Both the Constitution and the Civil Rights Act of 1964

enshrine the important principle that we are equal

under the law. The Equal Protection Clause prohibits

5

the government from denying “any person . . . the

equal protection of the laws.” U.S. Const. amend. XIV,

cl. 1. Title VI extends that prohibition to private

universities that receive federal financial assistance.

See 42 U.S.C. § 2000d (“No person in the United States

shall, on the ground of race . . . be subjected to

discrimination under any program or activity

receiving Federal financial assistance.”).

The University of North Carolina is a public

institution that receives federal funds. 2 See App. 144

& n.46. But in making race a factor in its admissions

decisions, the University runs afoul of both Title VI of

the Civil Rights Act of 1964 and the Equal Protection

Clause of the Fourteenth Amendment. The

protections of Title VI and the Equal Protection

Clause are coextensive, Gratz v. Bollinger, 539 U.S.

244, 276 n.23 (2003), and ought to forbid racial

discrimination of any kind.

Yet UNC uses race in admissions decisions. See

App. 195 (UNC application readers are trained to

consider “an applicant’s self-disclosed race or

ethnicity” as a factor in its “holistic review” of the

applicant). According to the University’s expert, race

is determinative “for 1.2% for in-state students and

5.1% for out-of-state students.” App. 112.

The district court upheld this policy. The court

concluded that the “small percentage of decisions”

based on race was consistent with this Court’s equal

protection jurisprudence. Yet the district court’s

flawed decision rested upon an outlier in that

2 For ease of reference, Amici will refer to all Respondents as

“UNC” or the “University.”

6

jurisprudence: Grutter v. Bollinger, 539 U.S. 306

(2003).

This petition, like the petition in Students for Fair

Admissions, Inc. v. President and Fellows of Harvard

University, No. 20-1199, presents the ideal vehicle to

overrule Grutter. See App. 188 (alleging, in Count III

of Petitioner’s complaint, that UNC’s admissions

process is illegal because it “uses race as a factor in

admissions”); App. 189 (granting judgment on the

pleadings against Plaintiff on Count III because it was

foreclosed by Supreme Court precedent). From the

day on which it was decided, Grutter has been

“grievously wrong.” Ramos v. Louisiana, 140 S. Ct.

1390, 1414–15 (2020) (Kavanaugh, J., concurring in

part). The Equal Protection Clause contains a

categorical statement: government shall not “deny to

any person within its jurisdiction the equal protection

of the laws.” U.S. Const. amend. XIV, cl. 1. Yet the

thrust of Grutter is that “not every decision influenced

by race is equally objectionable.” 539 U.S. at 327.

Grutter expressly endorsed racial preferences—so

long as universities administer them in a “flexible,

nonmechanical way.” Id. at 334. But the Equal

Protection Clause and Title VI prohibit racial

discrimination of any kind—flexible or rigid;

mechanical or not.

Grutter’s troubles do not end there. In endorsing

racial preferences in University admissions, the

Grutter Court endorsed a novel interest: “obtaining

the educational benefits that flow from a diverse

student body.” Id. at 343; App. 184 (concluding that

UNC is entitled to “judicial deference” for its decision

to pursue and attain “the educational benefits of

diversity”). This diversity rationale is both amorphous

7

and unsound. It rests upon arbitrary racial

classifications. The term “Hispanic,” for instance, does

not describe a common background, designate a

common language, or even describe gross physical

appearance. See Peter Wood, Diversity: The Invention

of a Concept 25 (2003). And “Asians” make up roughly

60 percent of the world’s population and encompass

people of Chinese, Indian, Filipino, and many more

backgrounds. David E. Bernstein, The Modern

American Law of Race, 94 S. Cal. L. Rev. 171, 182–83

(2021). Although state-sponsored treatment of

individuals as members of arbitrary racial groups is

reason enough to overrule Grutter, the decision’s

disastrous consequences provide additional support to

do so. As explained below, Grutter’s diversity rationale

perpetuates harmful stereotypes against Asian

applicants. Grutter is also unworkable. Universities

across the Nation treat the decision as an unqualified

endorsement of racial preferences. Such preferences

not only deny students their right to equal justice

before the law, but harm the very students they

purportedly benefit. See generally Richard H. Sander,

A Systemic Analysis of Affirmative Action in Law

Schools, 57 Stan. L. Rev. 367 (2004) (students who

received racial preferences were less likely to pass the

bar exam). This Court should grant the petition and

overrule Grutter.

8

REASONS TO GRANT THE PETITION

I.

Grutter Should Be Overruled Because It Is

Grievously Wrong

A.

There Is No Higher Education Exception

to Equality Under the Law

Grutter is an outlier in equal protection

jurisprudence. Both the Equal Protection Clause and

Title VI provide a categorical bar on discrimination on

the basis of race. See U.S. Const. amend. XIV, cl. 1

(prohibiting the government from denying “any

person . . . the equal protection of the laws”); see 42

U.S.C. § 2000d (“No person in the United States shall,

on the ground of race, . . . be subjected to

discrimination under any program or activity

receiving Federal financial assistance.”). Earlier

congressional records confirm that the Fourteenth

Amendment contains an unqualified mandate: The

“abolition of all distinctions founded on color and

race.” 2 Cong. Rec. 4083 (1874). This Court has

enforced that mandate in its subsequent decisions. In

Adarand Constructors, Inc. v. Pena, this Court

explained that, because racial distinctions are “odious

to a free people,” racial classifications are always

subject to strict scrutiny. 515 U.S. at 214. And in Rice

v. Cayetano, this Court observed that “race is treated

as a forbidden classification” because “it demeans the

dignity and worth of a person to be judged by ancestry

instead of by his or her own merit and essential

qualities.” 528 U.S. 495, 517 (2000).

The Grutter Court fashioned a strange exception to

these important principles. It announced that the

Court would countenance racial discrimination if it

were narrowly tailored toward a university’s interest

9

in “the educational benefits that flow from a diverse

student body.” Grutter, 539 U.S. at 328. Of course, a

truly diverse student body may produce a number of

benefits. It might teach tolerance, acceptance, and

open-mindedness. But none of those purported

benefits can justify the harm of racial preferences:

racial discrimination.

Grutter ends up in the wrong place because it

started in the wrong direction. The Grutter Court

provided two reasons for deferring to a university’s

judgment about whether educational benefits are

sufficient to justify racial preferences. First, it did so

in light of what the Court viewed as the “important

purposes of public education and the expansive

freedoms of speech and thought associated with the

university environment.” Grutter, 539 U.S. at 328–29.

Second, the Court observed that a university is

typically entitled to “make its own judgments as to . . .

the selection of its student body.” Id. at 329.

Neither reason provides a basis to carve out an

exception to the “moral imperative of racial

neutrality” that is the “driving force of the Equal

Protection Clause.” City of Richmond v. J.A. Croson,

488 U.S. 469, 519 (1989) (Kennedy, J., concurring).

First, public education has not become significantly

more important in the decades since Brown v. Bd. of

Educ. of Topeka, 347 U.S. 483 (1954). Yet that

decision rejected race-based decisionmaking in school

assignments. Second, the “expansive freedoms of

speech and thought associated with the university

environment” have little to do with the Equal

Protection Clause. Freedom of speech allows students

to express their views, profound or ignorant, about

race. The Equal Protection Clause prohibits

10

administrators from discriminating on the basis of

race in college admissions. Finally, nothing in Title

VI or the Constitution cabins the substantial leeway

that universities have to craft their own admissions

policies. UNC is free to continue to examine “more

than forty criteria considered in every application.”

App. 37. The Equal Protection Clause and Title VI do

not forbid UNC from drawing distinctions based on an

applicant’s academic performance, test scores,

extracurricular activities, or dozens of other factors

that the University deems relevant to a student’s

ability to flourish at UNC. App. 167. The Equal

Protection Clause and Title VI only prohibit the

University from discriminating against applicants on

the basis of race.

Grutter’s departure from this categorical

prohibition on racial discrimination created a sui

generis rule for admissions in higher education. This

Court permits racial preferences in furtherance of an

amorphous benefit in the context of college admissions

— and no place else. An analogy from employment law

elucidates this point. An employer can conjure up

some “benefits that flow from a diverse [workforce],”

just as universities can surmise educational benefits

that flow from a diverse student body. Grutter, 539

U.S. at 328. But Title VII does not allow an employer

to achieve those supposed benefits by resorting to

racial preferences. See, e.g., Taxman v. Bd. of Educ. of

Twp. of Piscataway, 91 F.3d 1547, 1557–58 (3d Cir.

1996) (en banc). And a finding that an applicant’s race

was “the decisive factor” in even a small percentage of

employment decisions would undoubtedly subject an

employer to liability under Title VII. Cf. Pet. for Cert.

at 9 (noting that “the [district] court concluded that

UNC’s use of race was constitutional because it is the

11

decisive factor in only 5.1% of out-of-state decisions

and 1.2% of in-state decisions”). 3 Because Grutter

conflicts with this Court’s broader equality

jurisprudence, it must be overruled. See Knick v. Twp.

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

B.

The Diversity Rationale Rests Upon

Arbitrary Racial Classifications

The diversity interest put forth by universities

routinely rests on arbitrary racial classifications.

Every applicant to UNC must complete a common

application, App. 167, which allows the applicant to

identify as a member of a racial or ethnic group, such

as White, Black, Hispanic, or Asian. UNC’s

admissions

policy

favors

members

of

underrepresented minority groups, which is defined

as any group “whose percentage enrollment within the

undergraduate student body is lower than their

percentage within the general population in North

Carolina.” App. 15 n.7. For more than three decades,

UNC has considered “students identifying themselves

as African American or [B]lack; American Indian or

Alaska Native; or Hispanic, Latino, or Latina” as

underrepresented minorities. Id.; see also App. 4 n.2

(referring to students who self-identify as members of

the same groups as “students of color”).

Racial labels, whether state-mandated or statesponsored, are “inconsistent with the dignity of

individuals in our society.” Parents Involved, 551 U.S.

3 To be sure, the Court’s decision in United Steelworkers v. Weber,

443 U.S. 193 (1973), interpreted Title VII to permit employers to

adopt affirmative action plans, but only in the limited

circumstances in which they are tailored to remedy a “manifest

imbalance” in a “traditionally segregated” job category. Id. at

197.

12

at 797 (Kennedy, J., concurring). That is because

racial labels require their creator to “first define what

it means to be of a race.” Id. In that process, they

impinge on the right of every individual to “find his

own identity,” and “define her own persona, without

state intervention that classifies on the basis of his

race or the color of her skin.” Id.

The racial classifications upon which the

University relies are both common and crude.

Members of the same racial group may have vastly

different backgrounds, skills, and aspirations. The use

of race in admissions policies presents the risk that

UNC evaluates applicants not as individuals but as

members of a broadly defined racial group. See Miller

v. Johnson, 515 U.S. 900, 911–12 (1995) (“Race-based

assignments embody stereotypes that treat

individuals as the product of their race, evaluating

their thoughts and efforts—their very worth as

citizens—according to a criterion barred to the

Government by history and the Constitution.”)

(internal citation and quotation marks omitted).

Thus, although the district court concluded that

“URM students are [ ] likely to have experiences of

particular importance,” App. 150 (citing Grutter),

there is nothing intrinsic in these broad racial

categories that assures a commonality of experience.

See Wood, supra, at 25. As one scholar explained,

contemporary group classifications such as “[B]lack,”

“Asian,” and “Hispanic” fail to identify any common

factor inherent to individuals within those groups. Id.

The term “Hispanic,” for instance, covers people of

different backgrounds. “The Mexican Americans of

the southwest, the northeast’s Puerto Ricans, and

Florida’s Cubans had rarely thought of themselves, or

13

been thought of by others, as constituting a single

group until somebody decided to lump them into a

single statistical category of ‘Spanish Americans.’”

Sean A. Pager, Antisubordination of Whom? What

India’s Answer Tells Us About the Meaning of

Equality in Affirmative Action, 41 U.C. Davis L. Rev.

289, 303–04 (Nov. 2007). The same problems plague

the definition of “Asian,” which includes individuals of

Chinese, Indian, Japanese, Vietnamese, and other

origins. Id. at 305.

Amicus Coalition for TJ has experienced the effects

of crude racial lumping first-hand. The “Asian

American” student population at Thomas Jefferson

High School for Science and Technology is made up of

students whose families hail from 30 countries,

including India, Pakistan, South Korea, Japan,

Vietnam, China, and the Philippines. Altogether,

Asian American students make up 73% of the Class of

2024. As a result of the perceived overrepresentation

of Asian American students, the school board

implemented changes to the admissions system to

eliminate a test that the board claims “squeezed out

diversity in our system.” As a result, a sharp decline

occurred in the number of Asian American students

admitted to the Class of 2025 at TJ. The percentage of

admissions offers made to Asian Americans fell from

73% for the Class of 2024 to 54% for the Class of 2025.

See Coal. for TJ, 1:21-cv-00296, Plaintiff’s

Memorandum in Support for Motion for Summary

Judgment, ECF No. 98 at 14. It is indeed a “sordid

business, this divvying us by race.” League of United

Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006)

(Roberts, C.J., concurring in part and dissenting in

part).

14

C.

Racial Classifications Perpetuate

Harmful Stereotypes

“Race-based assignments embody stereotypes that

treat individuals as the product of their race.” Miller,

515 U.S. at 912 (citation omitted). Admissions at UNC

are no exception. Online chats between admissions

officers sometimes expressly refer to an applicant’s

race. Pet. for Cert. at 5–6. One admissions officer

claims to have reviewed “a brown girl who’s an 810

[SAT].” Id. at 5. Another instructed that “[i]f its brown

and above a 1300 [SAT] put them in for [the]

merit/Excel [scholarship].” Id. Still another revealed

that she was “reading an Am. Ind.” application. Id. at

6. These crude statements underscore that racial

classifications “demean[] us all.” Fisher v. Univ. of

Texas at Austin, 570 U.S. 297, 316 (2013) (Thomas, J.,

concurring).

These pernicious stereotypes extend beyond

campus. College guidebooks like the Princeton Review

advise Asian American applicants to “be careful about

what [they] say and don’t say in [their] application.”

Princeton Review, Cracking College Admissions 174

(2d ed. 2004). Against the backdrop of racial

preferences, Asian American applicants to prestigious

universities must “distance [themselves] as much as

possible from” stereotypes about Asians. Id. at 176.

The guide implores Asian American students to

disavow any aspiration of being a doctor or an

engineer, and to “get involved in activities other than

math club, chess club, and computer club.” Id. at 175.

The principle of equal protection before the law

embodies the promise that race will not stand in the

way between an individual and her dreams. Yet Asian

American students who want to attend elite

15

universities are incentivized to forgo a career in

medicine, math, and sciences—all because there

happens to be “too many Asians” in those programs.

This leads to devastating consequences. As one

Chinese-American student at Yale recounted, “I quit

piano, viewing the instrument as a totem of my race’s

overeager striving in America. I opted to spend much

of my time writing plays and film reviews—pursuits I

genuinely did find rewarding but which I also chose so

I wouldn’t be pigeonholed.” Althea Nagai, Too Many

Asian Americans: Affirmative Discrimination in Elite

College Admissions, Center for Equal Opportunity,

May 22, 2018. 4

Amici have felt the sting of pernicious racial

stereotypes in school admissions. In the meetings

preceding efforts to racially balance Thomas Jefferson

High School at the expense of Asian American

students, one school board member referred to the

culture at TJ as “toxic.” See Coal. for TJ, 1:21-cv00296, ECF No. 1, Compl. ¶ 45. A Virginia state

delegate, as part of a working group to address

diversity and equity, made baseless claims of

“unethical ways” Asian American parents “push their

kids into [TJ],” when those parents are “not even going

to stay in America,” but instead are “using [TJ] to get

into Ivy League schools and then go back to their home

country.” Id. ¶ 38. CACAGNY, Yi Fang Chen, and

others have had similar experiences in New York,

where Mayor de Blasio referred to the racial

composition of the specialized high schools as a

4 http://www.ceousa.org/attachments/article/1209/AN.Too%20

Many%20AsianAms.Final.pdf.

16

“monumental injustice.” 5 Administrators at the

specialized high schools see the matter differently. See

Students for Fair Admission, Inc. v. President and

Fellows of Harvard College, 1:14-cv-14176-ADB, ECF

No. 414-3 at 150–55 (Stuyvesant assistant principal

in tears when shown the numbers of Asian American

acceptance rates “[b]ecause these numbers make it

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

and I know how hard they work”).

II. Grutter Should Be Overruled Because It

Is Unworkable

Grutter was “egregiously wrong when decided” and

should be overruled for that reason alone. Ramos v.

Louisiana, 140 S. Ct. at 1414 (Kavanaugh, J.,

concurring). The Equal Protection Clause demands

“equal justice under law,” a venerable principle etched

on the building of the Supreme Court. The Fourteenth

Amendment prohibits racial discrimination; Grutter

allows it. A rule that permits racial preferences should

not be countenanced even if it were workable. But

Grutter is anything but workable. It was meant to

(wrongly) permit only a sliver of racial discrimination,

but universities have long viewed it as an unqualified

endorsement of racial preferences.

This case is one example. Race is decisive for “5.1%

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

decisions.” Pet. for Cert. at 9 (citing App. 112–13). The

University’s consideration of race is especially

pronounced for applicants who score within the range

Bill de Blasio, Our Specialized Schools Have a Diversity

Problem. Let’s Fix It., Chalkbeat (June 2, 2018),

https://chalkbeat.org/posts/ny/2018/06/02/mayor-bill-de-blasionew-york-city-will-push-for-admissions-changes-at-elite-andsegregated-specialized-high-schools/.

5

17

of UNC’s median applicant. Petitioner’s expert

observed that while “pretty much everybody” in the

top decile of academic performance is admitted to

UNC, there are “meaningful differences” between

students of different racial groups in the middle

deciles. App. 76. In one such decile, “whites and Asian

Americans have admit rates that are below 30%, but

the African American admit rate is over 40 points

higher, at 71%, and the Hispanic admit rate is almost

54%.” App. 76–77.

The rise of mismatch research, most of which was

published after Grutter, also counsels in favor of

revisiting that decision. See Ramos, 140 S. Ct. at 1414

(Kavanaugh, J., concurring) (listing “changed facts” as

a factor to consider in cases implicating stare decisis).

The basic principle underlying “mismatch” theory is

intuitive: most students learn best if they are in a

class with others at the same level of preparation.

This effect holds regardless of the student’s race.

Racial preferences implicate mismatch theory. By

definition, they give underqualified applicants a boost

to further the university’s goal in achieving a diverse

class. A few years before Grutter, Rogers Elliott and

his colleagues at Dartmouth conducted an empirical

study that revealed that racial preferences were

deterring racial and ethnic minority students from

majoring in science, technology, engineering, and

mathematics. Rogers Elliott et al., The Role of

Ethnicity in Choosing and Leaving Science in Highly

Selective Admissions, 37 Res. Higher. Ed. 681 (1996).

Another study published a year after Grutter came to

the same conclusion. See Frederick L. Smyth &

John J. McArdle, Ethnic and Gender Differences in

Science Graduation Rates at Selective Colleges with

18

Implications for Admissions Policy and College

Choice, 4 Res. Higher Educ. 353 (2004). Stephen Cole

and Elinor Barber similarly found that African

American students at elite colleges were less likely to

persist with an initial interest in academic careers

than their counterparts at less elite schools because of

academic mismatch. Stephen Cole & Elinor Barber,

Increasing Faculty Diversity: The Occupational

Choices of High-Achieving Students 124, 212 (2003).

The following year, law professor Richard Sander

published a study indicating that students who

received racial preferences in admissions were less

likely to pass the bar exam. See generally Sander,

supra.

Although some scholarship on mismatch existed

prior to Grutter, the principle was popularized more

widely after the decision. Since Professor Sander’s

Stanford Law Review article, the United States

Commission on Civil Rights published two reports—

Affirmative Action in American Law Schools and

Encouraging Minority Students in Science Careers—

intended to make this research more accessible to a

wider audience of policymakers, and Richard Sander

co-authored a book on his research to the same end. A

new report published this year by Amicus Center for

Equal Opportunity provides more on the point. See

Althea Nagai, Campus Diversity and Student

Discontent: The Cost of Race and Ethnic Preferences in

College Admissions, Center for Equal Opportunity,

Jan. 27, 2021. 6 Summarizing the current research, the

report concludes that racial preferences harm the very

6 https://www.ceousa.org/2021/01/27/campus-diversity-andstudent-discontent-the-costs-of-race-and-ethnic-preferences-incollege-admissions-2/.

19

students they purportedly benefit. Id. at 29–30.

Students who “benefit” from racial preferences end up

transferring more frequently, take longer to graduate,

and were more dissatisfied compared to others in their

class. Id.

The post-Grutter research on mismatch counsels in

favor of granting the petition. Many who support

racial preferences in education rest their support of

such programs not on diversity, but on an interest in

remedying past discrimination. See Wencong Fa, The

Trouble with Racial Quotas in Disparate Impact

Remedial Orders, 24 Wm. & Mary Bill Rts. J. 1169,

1198–1200 (2016). Yet mismatch theory confirms that

“[i]f the need for the racial classifications . . . is

unclear, . . . the costs are undeniable.” Parents

Involved, 551 U.S. at 745 (plurality op.). All students,

regardless of race, bear the burden of racial

preferences.

20

CONCLUSION

For the reasons stated herein, and those stated by

Petitioner, Amici respectfully request that this Court

grant the petition for certiorari.

DATED: December 2021.

Respectfully submitted,

JOSHUA P. THOMPSON

WENCONG FA*

ALISON SOMIN

*Counsel of Record

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

WFa@pacificlegal.org

Counsel for Amici Curiae Pacific Legal Foundation,

Center for Equal Opportunity, Reason Foundation,

Chinese American Citizens Alliance - Greater New

York, Yi Fang Chen, Coalition for TJ, and Project 21