Amicus Curiae Brief — Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al.
Supreme Court briefDec 15, 2021
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No. 21-707
─────────────────────────────────
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
Judgement to the Fourth Circuit Court of
Appeals
BRIEF OF AMICI CURIAE THE ASIAN
AMERICAN COALITION FOR EDUCATION
AND THE ASIAN AMERICAN LEGAL
FOUNDATION IN SUPPORT OF PETITIONER
Lee C. Cheng
Asian American Legal
Foundation
11 Malta Street
San Francisco, CA 94131
leechcheng@gmail.com
Tel: (510) 238-9610
Fax: (510) 977-5127
Gordon M. Fauth, Jr.
(counsel of record)
Litigation Law Group
1935 Addison St., Ste. A
Berkeley, CA 94704
gmf@classlitigation.com
Tel: (510) 238-9610
Fax: (510) 977-5127
Attorneys for Amici Curiae
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iv
THE INTEREST OF AMICI CURIAE ....................... 1
SUMMARY OF ARGUMENT .................................... 3
ARGUMENT ............................................................... 6
I.
THE UNIVERSITY’S UNLAWFUL DISCRIMINATION CAUSES PROFOUND INJURY TO
ASIAN AMERICAN STUDENTS. ..................... 6
A.
UNC’s Race-Based Admissions
Discriminate Heavily Against Asian
American Applicants ................................. 6
B.
The Burden of UNC’s Use of Race Falls
Heaviest on Those Least Able to Bear It .. 8
C.
The Higher Admissions Standards
Imposed on Asian American Children by
UNC and Other Selective Universities
Lead to Unbearable Study Loads, Stress,
Depression and Other Psychological
Harm ........................................................ 10
D.
There is a Terrible Effect on the Dignity
and Self Worth of Students Who Know
They will Face Discrimination if Seen as
“Asian” ...................................................... 11
ii
II.
UNC’S RACIAL HIERARCHY PROMOTES
THE SAME REPELLANT STEREOTYPES
HISTORICALLY USED TO JUSTIFY
DISCRIMINATION AND VIOLENCE
AGAINST ASIAN AMERICANS ..................... 13
A.
Throughout Much of This Nation’s
History, Persecution of Asian Americans
Was the Shameful Norm ......................... 13
B.
The Chinese Exclusion Act ...................... 16
C.
World War II Internment of JapaneseAmerican Families .................................. 16
D.
The Disgraceful History of Discrimination
Against Asian Americans in Education .. 17
III. THE DISTRICT COURT’S DEFERENCE TO
UNIVERSITY OFFICIALS OMITTED THE
SKEPTICAL REVIEW REQUIRED UNDER
TRUE STRICT SCRUTINY ............................. 20
A.
The Court Below Deferred to UNC Rather
Than Applying Hostile Review to its Use
of Race ...................................................... 20
B.
The Court Below Ignored Evidence there
were Race-Neutral Alternatives to Racial
Discrimination ......................................... 22
IV. THIS CASE ILLUSTRATES WHY RACE
SHOULD NOT BE USED BY SCHOOLS
OUTSIDE OF A REMEDIAL CONTEXT ....... 24
iii
V.
UNIVERSITIES SHOULD NOT BE
ALLOWED TO USE RACE CONSCIOUS
ADMISSIONS IN A MISGUIDED EFFORT
TO COVER UP FAILURES IN K-12
EDUCATION.................................................... 28
CONCLUSION.......................................................... 29
iv
TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995) .................................... 21, 27
Brown v. Board of Education,
347 U.S. 483 (1954) ............................... 19, 29-30
Fisher v. Univ. of Tex. at Austin,
133 S. Ct. 2411 (2013) .............................. passim
Gong Lum v. Rice, 275 U.S. 78 (1927)...................... 19
Grutter v. Bollinger, 539 U.S. 306 (2003) ........ passim
Grutter v. Bollinger, 288 F.3d 732, 751-52
(6th Cir. 2002) .................................................. 27
Hirabayashi v. United States,
320 U.S. 81 (1943) ...................................... 17, 24
Hirabayashi v. United States,
828 F. 2d 591 (9th Cir. 1987) ........................... 17
Ho Ah Kow v. Nunan,
12 F. Cal. 252 (C.C.D. Cal. 1879) ..................... 15
Ho v. San Francisco Unified Sch. Dist.,
147 F. 3d 854 (9th Cir. 1998) .............. 2-3, 18, 19
In re Ah Chong,
2 F. 733 (C.C.D. Cal. 1880) .............................. 15
In re Lee Sing,
43 F. 359 (C.C.D. Cal. 1890) ............................ 15
In re Tiburcio Parrott,
1 F. 481 (C.C.D. Cal. 1880) .............................. 15
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) ................. 17
v
Lee v. Johnson,
404 U.S. 1215 (1971) ........................................ 19
Metro Broadcasting, Inc. v. FCC,
497 U.S. 547, 612 (1990) .................................. 25
NE Fla. Ch. of the Ass. Gen. Contractors v. City of
Jacksonville, 508 U.S. 656, 666 (1993) .............. 9
Parents Inv. In Comm. Sch. v. Seattle School No. 1,
551 U.S. 701, 127 S. Ct. 2738 (2007) ................. 7
People v. Hall,
4 Cal. 399 (1854)............................................... 14
Plessy v. Ferguson,
163 U.S. 537 (1896) .................................... 18, 27
Regents of the Univ. of Calif. v. Bakke,
438 U.S. 265 (1978) ............................. 25 & n. 10
Rice v. Cayetano,
528 U.S. 495 (2000) ............................................ 6
Richmond v. Croson,
488 U.S. 469 (1989) .................................. passim
San Francisco NAACP v. San Francisco Unified Sch.
Dist., 59 F. Supp. 2d 1021 (N.D. Cal. 1999) .... 19
Shaw v. Reno, 509 U. S. 630, 643 (1993) ................. 24
Tape v. Hurley,
66 Cal. 473, 6 P. 12 (1885) ............................... 18
United States v. Wong Kim Ark,
169 U.S. 649 (1898) .......................................... 15
Wong Him v. Callahan,
119 F. 381 (C.C.N.D. Cal. 1902) ...................... 15
Yick Wo v. Hopkins,
118 U.S. 356 (1886) .......................................... 15
vi
Constitution, Statutes, Orders
18 U.S.C. § 97a ................................................... 16 n. 7
Chinese Exclusion Act .............................................. 16
Executive Order 9066 ........................................ 16 n. 7
Title VI, 1964 Civil Rights Act ................................. 29
United States Constitution .............................. passim
Trial Record, Appellate Record
App. (Petition Appendix) .................................. passim
D.C.Dkt. (Docket in Case 1:14-cv-00954-LCB-JLW,
Middle District of North Carolina) .......... passim
Books
Low, Victor. The Unimpressible Race
(East/West Publishing Co. 1982) ..................... 13
McClain, Charles. In Search of Equality
(Univ. of Cal. Press 1994) ......................... 13, 18
Riley, Jason R. Please Stop Helping Us
(Encounter Books 2014) ................................... 29
Sandmeyer, Elmer C. The Anti-Chinese Movement
in California, (Univ. of Ill. Press 1991) ......... 12
Miscellaneous
Admission Considerations in Higher Education
Among Asian Americans, Yi-Chen (Jenny) Wu,
American Psychological Association, available at
vii
http://www.apa.org/pi/oema/resources/ethnicityhealth/asian-american/article-admission.aspx ... 10-11
Anti-Asian Hate Crimes Rose 73% Last Year,
Updated FBI Data Says, NBCNews (Oct. 25, 2021),
found at https://www. nbcnews.com/news/asianamerica/anti-asian-hate-crimes-rose-73-last-yearupdated-fbi- data-says-rcna3741 ......................... 1 n. 2
Chinese Immigration and the Chinese Exclusion
Acts, available at https://history.state.gov/
milestones/1866-1898/chinese-immigration ............ 16
Even With Affirmative Action, Blacks and Hispanics
Are More Underrepresented at Top Colleges Than 35
Years Ago, New York Times, Aug. 24, 2017, found at
https://www.nytimes.com/interactive/2017/08/24/us/
affirmative-action.html............................................. 29
Free Dictionary, The, available at https://idioms.
thefreedictionary.com/Chinaman%27s+chance ....... 14
Group Preferences and the Law, U.S. House of
Representatives Sub-Committee on the Constitution
Hearings, Lee Cheng (June 1, 1995), available at
http://www.archive.org/stream/grouppreferences00u
nit/grouppreferences00unit_djvu.txt ....................... 11
Hate Crimes Against Asian Americans Are on the
Rise, Time, Feb. 18, 2021, found at
https://time.com/5938482/asian-american-attacks/ ... 4
How Colleges Partner With K-12 On Student
Success, University Business, Oct. 17, 2019, found
at https://universitybusiness. com/ colleges-partnerk-12-student-success/ ................................................ 29
viii
Key Facts about Asian Americans, a Diverse and
Growing Population, Pew Research Center (April
21, 1921), found at https://www .pewresearch.
org/fact -tank/2021/04/29/key -facts-about-asianamericans/ .................................................................. 8
Myth of American Meritocracy: How Corrupt are Ivy
League Admissions?, Ron Unz (The American
Conservative, Dec. 2012), available at http://www.
theamericanconservative .com/articles/the-myth-ofamerican-meritocracy/ ......................................... 3 n. 3
Race-Neutral Alternatives in Postsecondary
Education: Innovative Approaches to Diversity, U.S.
Department of Education Office for Civil Rights,
March 2003, found at https://www2.ed.gov/about/
offices/list/ocr/edlite-raceneutralreport.html .. 26 n. 10
Surge in Anti-Asian Hate Crimes Raises Fears, Daily
Bulletin, March 5, 2021, found at
https://www.dailybulletin. com/2021/03/05/surge-inanti-asian-hate-crimes-raises-fears-in-southerncalifornia/ ............................................................. 1 n. 2
The Founding Fathers Made Our Schools Public. We
Should Keep Them That Way, The Washington Post
(Aug. 20, 2017) available at https://www.
washingtonpost.com/news/ made-by-history/
wp/2017/ 08/20/early-america-had-school-choice-thefounders-rejected-it/?utm_term=.815adf5587ba ..... 17
Tips From the Princeton Review: Act Less Asian,
Add Pics if You’re Black, Akane Otani, Bloomberg
(Nov. 21, 2014), available at https://www.bloomberg.
com/news/articles/2014-11-21/princeton-review-tellsasians-to-act-less-asian-and-black-students-toattach-photos............................................................. 12
ix
To Get Into Elite Colleges, Some Advised To ‘Appear
Less Asian,’ Bella English, The Boston Globe (June
1, 2015), available at https://www.bostonglobe.com/
lifestyle/ 2015/06/01/ college-counselors-advise-someasian-students-appear-less-asian/
Ew7g4JiQMiqYNQ lIwqEIuO/story.html ................ 12
Top Colleges Take More Blacks, but Which Ones?
New York Times, June 24, 2004, available at
https://www.nytimes.com/2004/06/24/us/top-collegestake-more-blacks-but-which-ones.html ................... 28
UC System Admits Largest, Most Diverse Undergraduate Class, AP News (Oct. 20, 2021), found at
https://apnews.com/article/education-race-andethnicity-79f7d0e7eb812ce36538b9e112c38956 ...... 23
UNC-Amicus-Br., Fisher v. Univ. of Tex. at Austin,
No. 11-345 (S.Ct. Aug. 9, 2012), at 33-35, found at
https://www.scotus blog.com/wpcontent/
uploads/2016/08/11-345-respondent-amicus UNCCH.pdf ........................................................ 23 n. 9
Why Are Asian Americans Kids Killing Themselves?,
George Oiao, Plan A Magazine (Oct. 3, 2017),
available at https://planamag.com/why-are-asianamerican-kids-killing-themselves-477a3f6ea3f2...... 10
1
THE INTEREST OF AMICI CURIAE 1
This case presents issues of critical importance
to amici curiae and their constituents, who are
Americans of Asian ethnic descent. Asian Americans
have historically faced discrimination in many
aspects of American life, particularly in education.
Issues raised by this case are particularly poignant
as the Asian American community has recently been
experiencing a pandemic of raced-based violence,
with vulnerable Asian Americans viciously attacked
and even murdered in the streets of American cities.2
Asian Americans have often been subjected to
admissions processes at institutions where, as at the
University of North Carolina (“UNC”), their ethnicity
is considered undesirable and not “diverse.” Many of
Amici’s constituents have children who were denied
entrance to or who may one day aspire to attend
1 No counsel for a party authored this brief in whole or in part,
nor did any person or entity, other than amici or their counsel,
make a monetary contribution intended to fund the preparation
or submission of this brief. All parties have been timely notified
of and have given their consent to the filing of this amici curiae
brief.
Anti-Asian Hate Crimes Rose 73% Last Year, Updated FBI
Data Says, NBCNews (Oct. 25, 2021), found at https://www.
nbcnews.com/news/asian-america/anti-asian-hate-crimes-rose73-last-year- updated-fbi- data-says-rcna3741 (last visited
12/11/2021); Surge in Anti-Asian Hate Crimes Raises Fears,
Daily Bulletin (March 5, 2021), found at https://www.
dailybulletin.com/ 2021/03/05/surge-in -anti-asian-hate-crimesraises-fears-in-southern-california/ (last visited 12/9/2021).
2
2
UNC or other selective institutions with similar
discriminatory admissions practices.
The Asian American Coalition for Education
(“AACE”) is an apolitical, non-profit, national
alliance supported by over 300 organizations
nationwide. It is devoted to promoting equal rights
for Asian Americans in education and educationrelated activities. The leaders of AACE and its
supporting organizations are Asian American
community leaders, business leaders and, most
importantly, parents. They are not professional “civil
rights advocates” and do not get funding from large
corporations or multibillion dollar foundations, but
were forced to become civil rights advocates to
expose, stop and prevent the discrimination against
their children that the “professionals” ignore,
downplay and facilitate. More information on AACE
can be found at http://asianamericanforeducation.org.
The Asian American Legal Foundation
(“AALF”), a non-profit organization based in San
Francisco, was founded in 1994 to protect and
promote the civil rights of Asian Americans. AALF
focuses its work on situations where Asian
Americans are discriminated against for a
purportedly benign purpose and where high profile
groups and individuals deny that discrimination
even exists. Members of AALF were instrumental in
the struggle to end discrimination against Chinese
American students in the San Francisco, California
public school system. See Ho v. San Francisco
3
Unified Sch. Dist., 147 F.3d 854 (9th Cir. 1998).
More information on AALF can be found
at
http://www.asianamericanlegal.com.
Amici Curiae ask this Court to hear their
arguments in support of Petitioner.
SUMMARY OF ARGUMENT
The record below demonstrates that UNC’s race
conscious admissions program, which grants
preferences
to
certain
favored
minorities,
discriminates against Asian American and white
applicants to UNC’s colleges. As with Harvard and
certain other selective institutions, UNC’s racial
discrimination is carried out in the name of diversity
but the result is the same—discrimination against
individual applicants who are of non-favored races.3
UNC’s discrimination is not subtle. The
evidence shows an in-state male Asian American
candidate whose statistical chances of admission are
25% based on grades and other metrics would have a
3
Selective colleges are no longer as blatant in their racial
discrimination as in the past, but in recent years many have
instituted ostensible “diversity” programs that essentially do
the same thing—discriminate against individual applicants,
particularly Asian Americans, solely because of their ethnicity.
See Ron Unz, The Myth of American Meritocracy: How Corrupt
are Ivy League Admissions?, (The American Conservative (Dec.
2012), at https://www.theamericanconservative.com/articles/
the-myth-of-american-meritocracy/ (last checked 12/9/2021).
4
63% chance of admission if treated as Hispanic and a
88% chance of admission if treated as black.
UNC’s lumping of all Asian Americans into one
disfavored group that it deems to lack diversity
ignores the fact that Asian Americans comprise at
least 20 distinct ethnic groups, each with its own
cultural heritage. Such treatment of Asian American
applicants as “faceless” members of a disfavored
“overrepresented” race is reminiscent of the negative
stereotyping historically used to justify persecution
of Asian Americans. It also echoes what Harvard did
in the 1920s to keep Jewish Americans from being
“overrepresented” on its campus. And, just as past
anti-Semitic slurs spawned violence against Jews,
today’s libel similarly promotes violence against
Asian Americans. See Cady Lang, Hate Crimes
Against Asian Americans Are on the Rise, Time (Feb.
18, 2021), found at https://time.com/ 5938482/asianamerican-attacks/ (last visited 12/9/2021).
Throughout their long history in this country,
Asian Americans faced discrimination rationalized
by depicting them as featureless members of a
“yellow horde,” lacking the human attributes of other
Americans and not deserving to be treated on their
own merits as individuals. It is thus sad to see Asian
Americans again subjected to negative stereotyping
and discrimination—this time by UNC and respected
educational
institutions.
This
widespread
discrimination, copied across the nation, causes real
and tangible harm, resulting in Asian American
5
children feeling a sense of inferiority, anger, and
hopelessness in their academic endeavors, knowing
they are likely to face additional hurdles to college
admission just because of their ethnicity.
UNC’s program should be stopped. Universities
should not be allowed to use race conscious
admissions in a misguided effort to hide failures in
K12 education, something that fails to address the
root causes of the problem while trammeling the
rights of individuals. This case and the similar
Harvard admissions case illustrate that, exactly as
this Court has repeatedly declared, distinctions
based on race are “odious” to a free people and should
not be allowed except where necessary to remedy
prior illegal use of race. If the present trend of
imposing unneeded racial distinctions is allowed to
continue, it will not stop with university admissions
but will permeate all aspects of American society,
with grave consequences for our future.
This Court should grant certiorari so that it can
hear this case together with the Harvard admissions
case, and clarify the standards applicable to a
university’s use of race.
6
ARGUMENT
I.
THE UNIVERSITY’S UNLAWFUL
DISCRIMINATION CAUSES PROFOUND
INJURY TO ASIAN AMERICAN
STUDENTS.
A.
UNC’s Race-Conscious Admissions
Discriminate Heavily Against Asian
American Applicants.
In its college admissions, UNC “demeans the
dignity and worth” of Asian Americans by judging
them by ancestry instead of by their “own merit and
essential qualities.” Rice v. Cayetano, 528 U.S. 495,
517 (2000). As the evidence shows, UNC gives
preference to black, Hispanic and native American
applicants, deeming them “under-represented
minorities” (“URM”), while at the same time
discriminating against individuals of the nonpreferred races, particularly Asian and white
Americans. (D.C.Dkt. 160-1 at 2-4.)
The entire UNC admissions process is
permeated with race.4 UNC gives preferences to
applicants of the preferred races under the guise of
4 Candidates are assigned
numerical scores in five categories:
academic program, academic performance,
extracurricular
activity, personal qualities, and essay. (App. 70-71.) Race is
considered at every stage of the admissions process. (App. 51,
97.)
With a limited number of seats available, college
admissions at UNC, like other selective schools, is a “zero sum”
game. See Fisher v. Univ. of Tex. at Austin, 136 S.Ct. 2198,
2227 n.4 (2016) (Alito, J. dissenting).
7
promoting diversity but is actually attempting to
mirror the racial demographics of the State: “The
term ‘underrepresented’ in this context refers to 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.) Such attempts at racial
balancing are something this Court has long taught
is forbidden. “We have many times over reaffirmed
that ‘[r]acial balance is not to be achieved for its own
sake.’” Parents Inv. In Comm. Sch. v. Seattle School
No. 1, 127 S. Ct. 2738, 2757 (2007) (citing cases).
Admissions officers’ internal communications
demonstrate that Asian Americans along with whites
are at the bottom of UNC’s racial hierarchy. As the
court below noted, “One email, in the words of
Plaintiff, ‘express[es] disappointment that an
applicant with perfect test scores was Asian and not
‘Brown.’” (App. 40.) UNC itself concedes race can be
a determinative factor in admission. (App. 150.)
Indeed, UNC’s discrimination is not subtle. As the
Petitioner’s expert found, an in-state male Asian
American candidate whose statistical chances of
admission are 25% based on his grades and other
metrics would have a 63% chance of admission if
treated as Hispanic and a 88% chance of admission if
treated as black. (D.C.Dkt. 160-1 at 7, 30.) The effect
of the racial preferences is even greater with out-ofstate applicants. (Id. at 31, 46-47.)
UNC’s discrimination against Asian American
8
and white applicants extends even to recruitment:
“URMs in North Carolina could score as low as a 26
on the ACT and be recruited, whereas white and
Asian American students needed at least a 29.” (App.
48.)
Not only does UNC penalize Asian Americans
because it does not consider them as contributors to
diversity; it lumps them all together despite the fact
that “Asian” encompasses many different ethnic
groups, each of which is a distinct minority: “Asian
Americans trace their roots to more than 20
countries in East and Southeast Asia and the Indian
subcontinent, each with unique histories, cultures,
languages and other characteristics.” Abby Budiman
& Neil G. Ruiz, Key Facts about Asian Americans, a
Diverse and Growing Population, Pew Research
Center (April 21, 1921), found at https://www
.pewresearch. org/fact -tank/2021/04/29/key -factsabout-asian-americans/(last visited 12/10/2021).
B.
The Burden of UNC’s Use of Race
Falls Heaviest on Those Least Able
to Bear It.
It would be wrong to think that Asian
American students uniformly apply to UNC with
high GPAs and test scores and that conditions are
merely being “equalized” by UNC’s use of race, and
that no one is really being harmed. First, under the
Fourteenth Amendment to the United States
9
Constitution, the constitutional injury lies in the
absence of equal treatment, whatever the result.
Northeastern Fla. Ch. of the Associated Gen.
Contractors v. City of Jacksonville, 508 U.S. 656, 666
(1993). Moreover, as noted, “Asian” comprises at
least 20 distinct ethnic groups. Within each of these
there are considerable differences in terms of family
background and resources. What happens in UNC
admissions is that the more socioeconomically
advantaged, better prepared Asian American
candidates may still gain entry in spite of the ethnic
“handicap”: “when you’re in the very top decile,
pretty much everybody is getting in.” (App. 76.)
However,
less
advantaged
Asian
American
candidates with less than perfect scores are at a
severe disadvantage compared to similarly-placed
applicants of the preferred races: “For instance, in
decile five, ‘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.)
Thus, perversely, the burden of UNC’s racial
discrimination falls heaviest on the most disadvantaged Asian American and white individuals who
apply for admission.
10
C.
The Higher Admissions Standards
Imposed on Asian American
Children by UNC and Other
Selective Universities Lead to
Unbearable Study Loads, Stress,
Depression and Other
Psychological Harm.
Preparing for college is daunting for all high
school students. The de facto higher admission
standards imposed by UNC and other selective
colleges on applicants identified as “Asian” makes
the process even worse for Asian American students.
Filled with despair because they know they will face
formidable additional barriers in the admissions
process, many of them undertake overwhelming
study loads, working themselves into ill health, and
suffering higher rates of anxiety, depression and
suicide. “Asian American college students are 1.6
times more likely than all others to make a serious
suicide attempt.” George Qiao, Why Are Asian
American Kids Killing Themselves? Plan A Magazine, Oct. 3, 2017, found at https://planamag. com/
why-are-asian-american-kids-killing-themselves/
(last visited 12/12/2021).
When Asian American children learn they face
barriers because they are deemed to contribute “less”
to “diversity,” they often want to deny or repudiate
their ethnic heritage. Many researchers have
documented the pernicious effects felt throughout the
Asian American community. See Yi-Chen (Jenny)
11
Wu, Admission Considerations in Higher Education
Among Asian Americans, American Psychological
Association, found at https://www.apa.org/pi/oema/
resources/ethnicity-health/asian-american/articleadmission (last visited 12/12/2021) (citing sources).
D.
There is a Terrible Effect on the
Dignity and Self Worth of Students
Who Know They will Face
Discrimination if Seen as “Asian.”
As found by this Court, classification by race
inevitably promotes feelings of “racial inferiority”
and “racial hostility.” Richmond v. J. A. Croson Co.,
488 U. S. 469, 493-94 (1989). In American education
today, it has produced a pernicious regime in which
it is viewed as somehow shameful to be “Asian.”
As Lee Cheng, Secretary of AALF, testified in
hearings before the U.S. House of Representatives,
Sub-Committee on the Constitution, “Many Chinese
American children have internalized their anger and
pain, confused about why they are treated differently
from their non-Chinese friends. Often they become
ashamed of their ethnic heritage . . .” Group
Preferences and the Law, U.S. House of Representatives Sub-Committee on the Constitution (June 1,
1995), p. 241, at http://www.archive.org/stream/
grouppreferences00unit/grouppreferences00unit_djv
u.txt (last visited 12/12/2021).
12
Consultants who advise on how to get kids into
college openly state that Asian Americans should
conceal or downplay their ethnicity: “‘We will make
them appear less Asian when they apply.’” Bella
English, To Get Into Elite Colleges, Some Advised To
‘Appear Less Asian,’ The Boston Globe, June 1, 2015,
found at https://www.bostonglobe.com/lifestyle/2015/
06/01/college-counselors-advise-some-asian-studentsappear-less-asian/Ew7g4JiQMiqYNQlIwqEIuO/ story
.html (last visited 12/12/2021). “And for the college
essay, don’t write about your immigrant family . . .”
(Id.)
The
Princeton
Review
advises
Asian
Americans: “If you’re given an option, don’t attach a
photograph to your application and don’t answer the
optional question about your ethnic background. This
is especially important if you don’t have an Asiansounding surname. (By the same token, if you do
have an Asian-sounding surname but aren’t Asian,
do attach a photograph).” Akane Otani, Tips From
the Princeton Review: Act Less Asian, Add Pics if
You're Black, Bloomberg, Nov. 21, 2014, found at
https://www.bloomberg.com/news/articles/2014-11-21
/princeton-review-tells-asians-to-act-less-asian-andblack-students-to-attach-photos (visited 12/12/2021).
Only Asian American children have to hide
that they want to be violinists or pianists, or doctors
or scientists; or are told it might be fatal to their
college admission chances to provide a photograph
that reveals their race. This cannot be right.
13
American children should not need to feel they will
be discriminated against in education unless they
conceal their heritage.
UNC promotes this shameful trend in higher
education, sending a distinct message to Asian
American applicants that they will not be considered
as individuals on their own merits unless they can
somehow hide their ethnicity.
II.
UNC’S RACIAL HIERARCHY PROMOTES
THE SAME REPELLANT STEREOTYPES
HISTORICALLY USED TO JUSTIFY
DISCRIMINATION AND VIOLENCE
AGAINST ASIAN AMERICANS.
A.
Throughout Much of This Nation’s
History, Persecution of Asian
Americans Was the Shameful Norm.
UNC’s discrimination against Asian Americans
because it does not view them as contributing to
diversity evokes the odious stereotypes historically
used to justify discrimination against Asian
Americans. Throughout early American history,
Asian Americans were marginalized as somehow
lacking in ordinary human qualities and denied
opportunities open to other individuals. See, e.g.,
Charles McClain, In Search of Equality (Univ. of Cal.
Press 1994); Elmer Clarence Sandmeyer, The AntiChinese Movement in California (Univ. of Ill. Press
1991); Victor Low, The Unimpressible Race
14
(East/West Publishing Co. 1982).
While Asian American immigrants were drawn
to the United States by its promise of a better life, all
too often they found only hardship and the dangerous
work that nobody else wanted. Their treatment was
so dismal it gave rise to the expression “a
Chinaman’s Chance,” a term meaning, “Little or no
chance at all; a completely hopeless prospect.” The
Free
Dictionary,
found
at
https://idioms.
thefreedictionary.com/Chinaman%27s+chance (last
visited 12/09/2021).5 The many court cases in which
Asian Americans struggled for equal treatment
provide a historical record that is tragic, outrageous
and impossible to refute.
In 1854, in People v. Hall, 4 Cal. 399, 404-05
(1854), the California Supreme Court invalidated the
testimony of Chinese American witnesses to a
murder, explaining that Chinese were “a distinct
people . . . whose mendacity is proverbial; a race of
people whom nature has marked as inferior, and who
are incapable of progress or intellectual development
beyond a certain point, as their history has shown;
differing in language, opinions, color, and physical
conformation; between whom and ourselves nature
has placed an impassable difference.”
5 There are various explanations for the origin of this phrase.
“One is that they were given the most dangerous jobs, such as
setting and igniting explosives. Another is that judges and
juries routinely convicted Chinese defendants on the flimsiest of
evidence. A third is that Chinese miners were allowed to work
gold claims only after others had taken the best ore.” Id.
15
In Ho Ah Kow v. Nunan, 12 F. Cal. 252 (C.C.D.
Cal. 1879) (No. 6,546), a district court invalidated
San Francisco’s infamous “Queue Ordinance” on
equal protection grounds.
In In re Ah Chong, 2 F. 733 (C.C.D. Cal. 1880),
the court found unconstitutional a law forbidding
Chinese Americans from fishing in California waters.
In In re Tiburcio Parrott, 1 F. 481 (C.C.D. Cal.
1880), the court declared unconstitutional a provision
of California’s 1879 constitution that forbade
corporations and municipalities from hiring Chinese
Americans.
In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the
Supreme Court ruled that Chinese were “persons”
under the Fourteenth Amendment and could not be
singled out for unequal burden under a San
Francisco laundry licensing ordinance.
In In re Lee Sing, 43 F. 359 (C.C.D. Cal. 1890),
the court found unconstitutional the “Bingham
Ordinance,” which had mandated residential
segregation of Chinese Americans.
In United States v. Wong Kim Ark, 169 U.S. 649
(1898), the Supreme Court ruled that a Chinese
American boy, born in San Francisco, could not be
prevented from returning to the city after a trip
abroad.
16
B.
The Chinese Exclusion Act.
In 1882, in an extraordinary attack on equal
protection, Congress passed the Chinese Exclusion
Act, a law enacted to prevent an entire ethnic group
from immigrating to the United States. See Chinese
Immigration and the Chinese Exclusion Acts, found
at https:// history.state.gov/ milestones/1866-1898/
chinese-immigration (last visited
12/12/2021).
Fueled by anti-Chinese hysteria, it prohibited all
entry of “Chinese laborers.” Id. As aptly described
by opponent Republican Senator George Frisbie
Hoar, it was “nothing less than the legalization of
racial discrimination.” Id.
In 1943, when China was an ally in the war
against the Empire of Japan, the United States
finally repealed the Chinese Exclusion Act. Id.
C.
World War II Internment of
Japanese American Families.
One of the most egregious modern attacks on
the constitutional rights of Asian Americans occurred
during World War II, when entire families of
Japanese Americans were removed from their West
Coast homes and placed in internment camps.6
Executive Order No. 9066, issued February 19, 1942,
authorized the Secretary of War and military commanders “to
prescribe military areas from which any persons may be
excluded as protection against espionage and sabotage.”
Congress enacted § 97a of Title 18 of the United States Code,
6
17
Supported by the statements of authorities and
experts who declared the discriminatory measure
necessary to national security, the internment of
Americans in concentration camps on American soil
was allowed by the courts. See Hirabayashi v. United
States, 320 U.S. 81 (1943). Only decades later was it
acknowledged there had been no justification for this
abrogation of constitutional rights. See Korematsu v.
United States, 584 F. Supp. 1406, 1416-20 (N.D. Cal.
1984) (motivation was “racism” and “hysteria” and
not “military necessity”); Hirabayashi v. United
States, 828 F.2d 591 (9th Cir. 1987).
D.
The Disgraceful History of
Discrimination Against Asian
Americans in Education.
After the 1776 Revolution, Americans agreed
with Thomas Jefferson “that the future of the
republic depended on an educated citizenry” and that
universal public education should be provided to all
citizens. Johann N. Neem, The Founding Fathers
Made Our Schools Public. We Should Keep Them
That Way, The Washington Post, Aug. 20, 2017,
found at
https://www.washingtonpost.com/news/
made-by-history/wp/2017/08/20/early-america-hadmaking it a crime for anyone to remain in restricted zones in
violation of such orders. Military commanders then issued
proclamations excluding Japanese Americans from West Coast
areas and sending them to internment camps. See Korematsu,
584 F. Supp. at 1409.
18
school-choice-the-founders-rejected-it/ (last visited
12/09/2021). Alas, that noble sentiment did not
extend to Asian Americans, who were often denied
access to public education.
In Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885), it
took a court battle to force San Francisco schools to
admit a Chinese American girl denied entry because,
as stated by the State Superintendent of Public
Instruction, public schools were not open to
“Mongolian” children. McClain, supra, at 137. In
response to the ruling, the California legislature
authorized the establishment of separate “Chinese”
schools: “When such separate schools are established,
Chinese or Mongolian children must not be admitted
into any other schools.”
Chinese American
schoolchildren were restricted to those schools until
well into the twentieth century. Ho v. San Francisco
Unified Sch. Dist., 147 F.3d at 864.
Asian American schoolchildren were among the
first victims of the “separate-but-equal” doctrine
created in Plessy v. Ferguson, 163 U.S. 537 (1896).
The Court created the doctrine in a case where a
black passenger attempted to board a “white” railway
car. Id. In 1902, in Wong Him v. Callahan, 119 F.
381 (C.C.N.D. Cal. 1902), this doctrine was applied to
schools when a court ruled that Chinese American
children in San Francisco could be barred from
“white” schools because the “Chinese” school in
Chinatown was “separate but equal.”
19
In Gong Lum v. Rice, 275 U.S. 78 (1927), the
Supreme Court affirmed that the separate-but-equal
doctrine applied to K-12 schools, finding that a nineyear-old Chinese-American girl in Mississippi could
be denied entry to the local “white” school because
she was a member of the “yellow” race. Id. at 87.
In Ho v. San Francisco Unified Sch. Dist.,
supra, 147 F.3d 854, a striking modern example of
discrimination against Asian Americans, constituents of amici curiae were forced to engage in five
years of vigorous litigation to end the San Francisco
school district’s policy of assigning children to the
city’s K-12 schools based on their race. See id.; San
Francisco NAACP v. San Francisco Unified. Sch.
Dist., 59 F. Supp. 2d 1021 (N.D. Cal. 1999).
The Ho case was particularly ironic as just a
few decades earlier, in Lee v. Johnson, 404 U.S. 1215,
1215-16 (1971), Supreme Court Justice Douglas,
recognizing the long history of discrimination against
Asian Americans in education, wrote: “Historically,
California statutorily provided for the establishment
of separate schools for children of Chinese ancestry.
That was the classic case of de jure segregation
involved [and found unconstitutional] in Brown v.
Board of Education [347 U.S. 483 (1954)]. . . Brown
v. Board of Education was not written for blacks
alone. It rests on the Equal Protection Clause of the
Fourteenth Amendment, one of the first beneficiaries
of which were the Chinese people of San Francisco.”
20
Unfortunately, as demonstrated by UNC,
Harvard and certain other selective institutions, the
same discriminatory intent is alive today, now
cloaked as a striving for “diversity.”
III.
THE DISTRICT COURT’S DEFERENCE
TO UNIVERSITY OFFICIALS OMITTED
THE SKEPTICAL REVIEW REQUIRED
UNDER TRUE STRICT SCRUTINY.
A.
The Court Below Deferred to UNC
Rather Than Applying Hostile
Review to its Use of Race.
In Grutter v. Bollinger, 539 U.S. 306 (2003), this
Court held that the University of Michigan law
school was permitted, for pedagogical purposes, to
use race to achieve a “critical mass” of minority
students in order to reap the benefits that flow from
diversity. Id. at 330-333, 343.7 However, even in the
pedagogical context, a court must examine the raceconscious program under strict scrutiny, to
determine whether it is narrowly tailored to use race
to the least degree necessary to accomplish a
legitimate purpose:
We have held that all racial
classifications imposed by government
"must be analyzed by a reviewing court
under strict scrutiny." This means that
See also, Fisher v. Univ. of Tex. at Austin, 136 S.Ct. 2198
(2016) (applying holding of Grutter to college admissions).
7
21
such classifications are constitutional
only if they are narrowly tailored to
further
compelling
governmental
interests.
Grutter at 326 (internal citation omitted).
Strict scrutiny requires an unsympathetic,
skeptical examination of a school’s use of race, and
not the highly deferential review the court below
gave the UNC admissions program. Even if UNC’s
motives are benign, this Court rejected, in Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995), the
proposition that “benign” use of race merits more
lenient review, declaring the first principle in
examining any use of race is “skepticism: ‘Any
preference based on racial or ethnic criteria must
necessarily receive a most searching examination.’”
Adarand, at 223, 227-28 (citation omitted).
Otherwise, there is no way to know “what
classifications are in fact motivated by illegitimate
notions of racial inferiority or simple racial politics.”
Id. at 226.
Here, instead of conducting its own searching
inquiry, the court below did little more than
determine that UNC officials had made their own
determinations that use of race was necessary to
achieve the “benefits of diversity,” then rubberstamped the university’s conclusions. The record
shows UNC officials had never even assessed their
use of race in terms of what was minimally necessary
22
to produce a “critical mass” of “underrepresented
minorities,” (App. 54-55), a critical step in crafting a
narrowly-tailored program that uses race only to the
degree necessary. Nevertheless, the court below did
an end run around the narrowly tailored
requirement and accepted UNC’s argument that it
was sufficient it had considered its program in terms
of the benefits of diversity: “Accordingly, the Court
finds that UNC has defined the term “critical mass”
... by reference to the educational benefits of diversity
this concept is designed to produce.” (App. 56-58.)
By deferring to UNC’s officials on the issues it
should have examined skeptically, the district court
failed to apply true strict scrutiny to “smoke out” the
“illegitimate use[] of race.” Croson 488 U. S. at 493.
B.
The Court Below Ignored Evidence
there were Race-Neutral Alternatives to Racial Discrimination.
The court below improperly deferred to UNC’s
own self-serving statements and ignored evidence
race-neutral alternatives would have achieved any
reasonable diversity goals. “[S]trict scrutiny imposes
on the university the ultimate burden of
demonstrating,
before
turning
to
racial
classifications, that available, workable race-neutral
alternatives do not suffice.” Fisher v. Univ. of Tex. at
Austin, 133 S. Ct. 2411, 2420 (2013) (emphasis
added). “Workable” does not mean perfection or
23
exactly-the-same; it means “about as well . . . ” Id. at
2420. In this analysis, “the University receives no
deference.” Id.
Many universities have achieved diversity
without resort to racial discrimination.8 The record
shows UNC had workable race-neutral alternatives
available that would have achieved campus diversity;
but these were rejected by both UNC and the court
below because they would not have produced exactly
the same results as use of race. These included raceneutral programs rejected because they would have
admitted: fewer URM students from wealthy
families; more white students from poor families; or
slightly fewer of the favored minorities. (App. 13132, 134, 136-37, 139-40 and n. 43; D.C.Dkt. 154-22,
Ex. 11, Tbl. 1, 251-1 at 38.) UNC even rejected a Top
Ten Percent Plan that would have increased URM
enrollment slightly.9
Any of these alternatives would have produced
“critical masses” of URM students sufficient to
8UC System Admits Largest, Most Diverse Undergraduate Class,
AP News (Oct. 20, 2021), found at https://apnews.com/article/
education-race-and-ethnicity-79f7d0e7eb812ce36538b9e112c38
956 (last visited 12/12/2021); Race-Neutral Alternatives in
Postsecondary Education: Innovative Approaches to Diversity,
U.S. Department of Education Office for Civil Rights, March
2003, found at https:// www2.ed.gov/about/offices/list/ocr/edliteraceneutral report. html (last visited 12/12/2021);
9 See UNC-Amicus-Br., Fisher v. Univ. of Tex. at Austin, No. 11-
345 (S.Ct. Aug. 9, 2012), at 33-35, found at https://www.scotus
blog.com/wp-content/uploads/2016/08/11-345-respondent-amicus
-UNCCH.pdf (last visited 12/13/2021).
24
provide “the educational benefits that flow from a
diverse student body.” Grutter v. Bollinger, 539 U.S.
306, 333, 343 (2003). By rejecting workable alternatives to its race-conscious program that would
have worked “about as well” just because they would
not have produced exactly the same results, UNC
demonstrates its use of race is unconstitutional.
UNC’s use of race will also, unless stopped, continue
forever, because UNC will never find a race-neutral
alternative that produces exactly the same results as
its tailored racial discrimination.
IV.
THIS CASE ILLUSTRATES WHY RACE
SHOULD NOT BE USED BY SCHOOLS
OUTSIDE OF A REMEDIAL CONTEXT.
This Court should disavow Grutter’s holding that
racial diversity can rise to a compelling government
interest, and should put an end to the deferential
standard of review that has evolved in the wake of
that decision.
As this Court has long taught,
“[c]lassifications of citizens solely on the basis of race
are by their very nature odious to a free people whose
institutions are founded upon the doctrine of
equality.” Shaw v. Reno, 509 U. S. 630, 643 (1993)
(quoting Hirabayashi v. United States, 320 U.S. 81,
100 (1943)). Consistent with that principle,
universities should never consider race except where
necessary to provide a remedy for prior de jure
discrimination. Diversity is “simply too amorphous,
25
too insubstantial, and too unrelated to any legitimate
basis for employing racial classifications….” Metro
Broadcasting, Inc. v. FCC, 497 U.S. 547, 612 (1990)
(O’Connor, J., dissenting).
As this case demonstrates, if a search for diversity
is allowed to rise to a compelling government
interest, it is all too easy for universities like UNC to
justify a race conscious program in perpetuity by
concocting ambiguous and ill-defined goals, backed
by the self-serving statements of their officials and
allied experts.
Until Grutter, this Court’s jurisprudence taught
the Fourteenth Amendment’s prohibition against
governmental use of race was absolute except where
necessary to further the compelling interest of
providing a remedy to individuals harmed by prior
racial discrimination. “Modern equal protection
doctrine has recognized only one such interest:
remedying the effects of racial discrimination.” Metro
Broadcasting, 497 U.S. at 612.
In reaching the decision in Grutter, this Court
relied on Justice Powell’s dicta in Regents of the
University of California v. Bakke, 438 U.S. 265
(1978), and thus indirectly, on the tainted antiSemitic Harvard admissions program of the 1920s.10
Justice Powell’s statement in Regents of the University of
California v. Bakke, 438 U.S. 265, that diversity might in some
circumstances rise to a compelling government interest was
dicta and not a holding, as the Court found the medical school
admission program at issue unconstitutional. It was also
expressed in an opinion ascribed to only by Justice Powell. See
10
26
The ruling in Grutter has opened the floodgates to
allow UNC and other institutions to use raceconscious admissions to advance political agendas
under the guise of a need for more diversity. As with
UNC, they ignore that Grutter allowed use of race
only to the degree needed to create a “critical mass”
of minority students.11
As this Court warned in Croson, 488 U.S. 469,
unless racial classifications are “reserved for
remedial settings, they may in fact promote notions
of racial inferiority and lead to the politics of racial
hostility.” Id. at 493. That is exactly what is
happening at UNC and other institutions that use
race to achieve their notions of diversity, unchecked
by the strictures of a narrowly tailored remedy to
prior racial discrimination.
Grutter itself reveals the
constitutional
awkwardness of elevating diversity to a compelling
government interest. The opinion in Grutter
acknowledges that in evaluating the academic
benefits that flow from diversity, deference will be
accorded the school conducting the discrimination,
438 U.S. at 272, 320. While Justice Powell lauded Harvard
College’s “soft” diversity-discretion model of affirmative action,
he failed to recognize that the Harvard Plan had anti-Semitic
roots, being designed to restrict enrollment of Jewish students
in the 1920s. See Unz, supra, The Myth of American
Meritocracy.
11 UNC officials admit they have never even assessed their use
of race in terms of creating a critical mass of URM students.
(App. 54-55.)
27
539 U.S. at 330—something squarely at odds with
the skepticism demanded by strict scrutiny. See
Adarand, 515 U.S. at 223. We can see the effects of
this watering down of strict scrutiny in this case,
where instead of subjecting the UNC admissions
program to skeptical review, with the burden always
on UNC, the court below deferred to UNC
assessments and officials at every step of the inquiry.
Similarly, this Court has held that, “all
governmental use of race must have a logical end
point.” Grutter, 539 US at 342. However, as the
Sixth Circuit accurately stated, “[u]nlike a remedial
interest, an interest in academic diversity does not
have a self-contained stopping point.” Grutter v.
Bollinger, 288 F.3d 732, 751-52 (6th Cir. 2002). The
lack of any real end point presents a most serious
problem. If universities are allowed to deem
“diversity” a compelling interest justifying use of race
so long as their own officials say it is necessary, their
use of race will continue forever. Their
discriminatory admissions programs will become
exactly what this Court has warned against—
“ageless in their reach into the past, and timeless in
their ability to affect the future.” Croson, 488 U.S. at
498 (citation omitted).
The “separate but equal” doctrine enunciated in
Plessy v. Ferguson, 163 U.S. 537, at least implicitly
acknowledged a right to the equal treatment it failed
to provide. The holding of Grutter, however, as
interpreted by courts below, explicitly allows unequal
28
treatment—all in the name of diversity. If that trend
is allowed to continue, the result will be to further
devalue the rights of individuals, and will extend
beyond UNC and academia to balkanize American
society into racial groups, each pitted against the
other in a zero sum game that can only lead to
further racial tension and hostility.
It is time to return to a bright line rule that
reserves governmental use of race for remedial
settings where it is truly needed.
V.
UNIVERSITIES SHOULD NOT BE
ALLOWED TO USE RACE CONSCIOUS
ADMISSIONS IN A MISGUIDED EFFORT
TO COVER UP FAILURES IN K-12
EDUCATION.
UNC may also patronizingly believe it is simply
lifting up minorities who need help, but it would be
wrong. Not only does race-conscious admission favor
well-off applicants of the favored minorities over
disadvantaged individuals of other groups, it also has
the effect of discriminating against American-born
members of the minority communities it claims to
benefit. Top Colleges Take More Blacks, but Which
Ones? New York Times, June 24, 2004, found at
https://www.nytimes.com/2004/06/24/us/top- collegestake-more-blacks-but-which-ones.html (last visited
12/9/2021).
Decades of race-conscious college admission has
failed to improve education in black and Hispanic
29
communities. Even With Affirmative Action, Blacks
and Hispanics Are More Underrepresented at Top
Colleges Than 35 Years Ago, New York Times, Aug.
24, 2017, found at https://www.nytimes.com/
interactive/ 2017/08/24/us/ affirmative-action .html
(last visited 12/9/2021); see Jason R. Riley, Please
Stop Helping Us (Encounter Books 2014) (affirmative
action has resulted in fewer black college graduates).
UNC and other selective universities should
instead use their enviable resources to work with
local government and community groups to bolster
early education in communities where K-12
resources are deficient. See Matt Zalasnick, How
Colleges Partner With K-12 On Student Success,
University Business, Oct. 17, 2019, found at
https://universitybusiness.com/colleges-partner-k-12student-success/ (last visited 12/9/2021). Then, they
would be contributing to a solution instead of making
things worse by obfuscating the root causes of the
problem while trammeling the rights of individuals.
CONCLUSION
The UNC admissions program causes harm,
unlawfully discriminating against Asian American
applicants and others who are not members of UNC’s
preferred races. Whatever the motive, such
discrimination is incompatible with the principle of
equal protection and Title VI of the 1964 Civil Rights
Act. Some 70 years ago, in Brown v. Board of
30
Education, 347 U.S. 483, this Court recognized the
inherent injury to individuals when schools treat
students differently because of their race and found
that such discrimination was unlawful, whatever the
stated justifications. That same reasoning should
apply here today.
Accordingly, this Court should grant certiorari.
Respectfully submitted,
Lee C. Cheng
Director and Secretary
Asian American Legal
Foundation
11 Malta Street
San Francisco, CA 94131
leechcheng@gmail.com
Tel: (510) 238-9610
Fax: (510) 977-5127
Counsel for Amicus
Curiae The Asian
American Legal
Foundation
December 15, 2021
Gordon M. Fauth, Jr.
(counsel of record)
Litigation Law Group
1935 Addison St., Ste. A
Berkeley, CA 94704
gmf@classlitigation.com
Tel: (510) 238-9610
Fax: (510) 977-5127
Counsel for Amici Curiae
The Asian American
Coalition for Education
and The Asian American
Legal Foundation
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.