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

Supreme Court briefAug 1, 2022

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Nos. 20-1199 & 21-707

IN THE

Supreme Court of the United States

_____________

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

PRESIDENT & FELLOWS OF HARVARD COLLEGE,

Respondent.

_____________

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

UNIVERSITY OF NORTH CAROLINA, et al.,

Respondents.

_____________

On Writs of Certiorari to the United States Courts of

Appeals for the First and Fourth Circuits

_____________

BRIEF FOR AMICI CURIAE HBCU LEADERS

AND NATIONAL ASSOCIATION FOR EQUAL

OPPORTUNITY IN HIGHER EDUCATION IN

SUPPORT OF RESPONDENTS

______________________

AMY PAULI

Crowell & Moring LLP

999 18th Street

Denver, CO 80202

KEVIN D. CACABELOS

HENRY W. LEUNG

3 Embarcadero Center

San Francisco, CA

94111

LAUREL PYKE MALSON

Counsel of Record

AMANDA SHAFER BERMAN

JESSICA D. GILBERT

Crowell & Moring LLP

1001 Pennsylvania Ave., N.W.

Washington, DC 20004

(202) 624-2500

lmalson@crowell.com

TABLE OF CONTENTS

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

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

BACKGROUND ......................................................... 3

The

history

anti-Black

discrimination in higher education and

ongoing disparities. ........................................... 3

II.

HBCUs’

history

providing

opportunities for black students. .................... 13

III. HBCUs’ ongoing role in the pursuit of

educational equality and diversity. ................ 18

SUMMARY OF ARGUMENT.................................. 21

ARGUMENT ............................................................ 23

Student body diversity remains a

compelling goal that many universities

have yet to achieve. ......................................... 23

A. Diversity in higher education

remains a compelling interest that

HBCUs also pursue—but that is

critical for historically White

institutions. ............................................... 23

B. Student body diversity remains an

unfulfilled goal. ......................................... 25

II.

Overruling Grutter would undermine

student body diversity to the detriment

of American universities and society. ............. 30

III. HBCUs cannot redress the legacy of

racism in higher education—nor

should they be asked to. .................................. 34

CONCLUSION ......................................................... 36

TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Board of Education,

347 U.S. 483 (1954) ................................... 7, 8, 35

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) ........................................... 33

Fisher v. University of Texas at Austin,

579 U.S. 365 (2016) ..........................21, 24, 27, 31

Godwin v. Johnson Cnty. Bd. of Educ.,

301 F.Supp. 1339 (E.D.N.C. 1969) ..................... 8

Gratz v. Bollinger,

539 U.S. 244 (2003) ........................................... 26

Grutter v. Bollinger,

539 U.S. 306 (2003) .............. 21, 23, 24, 27, 28, 30

McKissick v. Carmichael,

187 F.2d 949 (4th Cir. 1951)............................... 5

Morgan v. Hennigan,

379 F.Supp. 410 (D. Mass. 1974) ....................... 8

Parents Involved in Cmty. Schs. v. Seattle

Sch. Dist. No. 1, 551 U.S. 701 (2007) ............... 34

Pena-Rodriguez v. Colo.,

137 S.Ct. 855 (2017)..................................... 25-26

Plessy v. Ferguson,

163 U.S. 537 (1896) ............................................. 7

iii

Ramos v. La.,

140 S.Ct. 1390 (2020)........................................ 30

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ............................................. 3

Rucho v. Common Cause,

139 S.Ct. 2484 (2019)........................................ 26

United States v. Fordice,

505 U.S. 717 (1992) ........................................... 15

Other Authorities

5 Things To Know: HBCU Edition,

National Museum of African American

History & Culture (Oct. 1, 2019) ...................... 13

About HBCUs, Thurgood Marshall College

Fund, https://www.tmcf.org/aboutus/member-schools/about-hbcus/ ...................... 20

Act of 1831, ch. VI, 1831 N.C. Sess. Laws 11 .......... 4

Amponsah, Moore, & Strickland, Welcome

to the Harvard Black Community,

The Harvard Crimson (Sept. 11, 2017) .............. 5

Becky Budds, Local HBCU's see increase in

enrollment (July 5, 2022) .................................. 21

Benjamin Wermund, UNC students, alumni

recount racial slurs and tensions on

campus, Politico (Mar. 6, 2019) ........................ 12

Camille G. Caldera et al., FBI Launches

Investigation into Racist Email Sent to

Thousands of Harvard Affiliates,

The Harvard Crimson (June 22, 2020) ............ 12

Chandi Wagner, School Segregation: Then

and Now (January 2017) .................................. 10

Craig Steven Wilder, Ebony & Ivy: Race,

Slavery, and the Troubled History of

America's Universities (2013) ............................. 3

Davison M. Douglas, The Rhetoric of

Moderation: Desegregating the South

During the Decade After Brown, 89 Nw.

U. L. Rev. 92 (1994) ............................................ 8

Debunking Common Myths About HBCUs

(Sept. 30, 2021) ................................................. 19

Denise A. Smith, Achieving Financial

Equity and Justice for HBCUs ............. 14, 16, 17

Dennis Ford Eagan, The Past, Present, and

Future of School Desegregation Law in

Massachusetts, 34 Suffolk U. L. Rev. 541

(2001) ................................................................... 8

edBuild, $23 Billion (Feb. 2019) .............................. 9

Emma Kerr, Everything You Need to Know

About the Pell Grant, U.S. News &

World Report (Feb. 3, 2021) ............................. 20

Erica L. Green, Why Students Are Choosing

H.B.C.U.s: ‘4 Years Being Seen as

Family’, The N.Y. Times

(June 11, 2022)..................... 11, 17, 18, 19, 21, 35

The First Of Its Kind, Cheyney University,

https://cheyney.edu/who-we-are/thefirst-hbcu/. ......................................................... 13

Florida A&M University - Profile, Rankings

and Data, U.S. News and World Report,

https://www.usnews.com/bestcolleges/florida-am-university-1480 ................. 35

Gary Orfield et al., Brown at 60: Great

Progress, a Long Retreat and an

Uncertain Future (May 15, 2014) ....................... 9

Hampton University - Profile, Rankings and

Data, U.S. News and World Report,

https://www.usnews.com/bestcolleges/hampton-university-3714 ................... 35

Harvard Radcliffe Institute, Harvard & the

Legacy of Slavery (2022),

https://legacyofslavery.harvard.edu/repo

rt .............................................................. 4, 6, 7, 8

How Harvard could really help historically

Black colleges, Tampa Bay Times

Editorial Board, Tampa Bay Times

(May 26, 2022) .................................................. 17

J. Kenyon Kummings & Christopher H.

Tienken, Redlining Education,

Kappa Delta Pi Record (2021) ............................ 8

Jack Schneider et al., School Integration in

Massachusetts: Racial Diversity and

State Accountability (2020) ................................ 9

James Baldwin, The Fire Next Time

(1st ed. 1963) ..................................................... 23

Jason Cook, Race-Blind Admissions, School

Segregation, and Student Outcomes:

Evidence from Race-Blind Magnet

School Lotteries, IZA Institute of Labor

Economics, DP No. 11909 (Oct. 2018) .............. 10

Jonathan Franklin, Stanford University

investigates a noose found in a campus

tree as a hate crime, N.P.R.

(May 10, 2022) .................................................. 12

Kris Nordstrom, Stymied by Segregation:

How Integration Can Transform North

Carolina Schools and the Lives of Its

Students, Education & Law Project

(2018) ................................................................... 9

LaToya Baldwin Clark, Barbed Wire

Fences: The Structural Violence of

Education Law, 89 U. Chi. L. Rev. 499

(2022) ................................................................... 9

Leslie H. Fishel, Jr. & Benjamin Quarles,

The Negro American: A Documentary

History (1967)...................................................... 4

Liann Herder, UNCF Report Reveals Social

Mobility Made More Possible at HBCUs,

Diverse Issues in Higher Education

(Nov. 18, 2021) .................................................. 20

vii

M. Christopher Brown II, The Declining

Significance of Historically Black

Colleges and Universities, 82 J. Negro

Edu. 1 (2013) ............................................... 13, 14

Marcia Graham Synnott, The Half-Opened

Door: Discrimination and Admissions at

Harvard, Yale, and Princeton, 19001970 (2013) .......................................................... 6

Marybeth Gasman, The Changing Face of

Historically Black Colleges and

Universities, Penn Center for Minority

Serving Institutions (2013) .............................. 14

Marybeth Gasman, Envisioning Black

Colleges: A History of the United Negro

College Fund (2007) .............................. 14, 16, 17

Michael A. Lawrence, The Thirteenth

Amendment as Basis for Racial Truth &

Reconciliation, 62 Ariz. L. Rev. 637

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

Michael Arzate, Educating African

Americans: A Brief Look into

Historically Black Colleges in America,

National Archives: Rediscovering Black

History (Oct. 22, 2013)...................................... 17

Michael Beauregard, Column: The

desegregation of UNC, The Daily

Tar Heel (Feb. 16, 2022) ..................................... 5

viii

Mikyong Minsun Kim & Clifton F. Conrad,

The Impact of Historically Black

Colleges and Universities on the

Academic Success of African-American

Students, 47 Research in Higher

Education 399 (2006) ........................................ 15

Nicholas Graham, Historic African

American Enrollment at UNC, History

on the Hill, UNC University Libraries

(Apr. 21, 2016)..................................................... 5

The Numbers Don't Lie: HBCUs Are

Changing the College Landscape, UNCF,

https://uncf.org/the-latest/the-numbersdont-lie-hbcus-are-changing-the-collegelandscape ........................................................... 18

Osamudia James, Superior Status:

Relational Obstacles in the Law to

Racial Justice and LGBTQ Equality,

63 B.C. L. Rev. 199, 209 (2022) .......................... 9

Peter Bergman, The Risks and Benefits of

School Integration for Participating

Students: Evidence from a Randomized

Desegregation Program, IZA Institute of

Labor Economics, DP No. 11602

(June 2018)........................................................ 10

Peter Schmidt, Color and Money: How Rich

White Kids Are Winning the War over

College Affirmative Action (2007)..................... 31

Ronyelle Bertrand Ricard & M. Christopher

Brown II, Ebony Towers in Higher

Education: The Evolution, Mission, and

Presidency of Historically Black Colleges

and Universities (2008)

............................................................... 13, 15, 16

Stefan M. Bradley, Upending the Ivory

Tower: Civil Rights, Black Power, and

the Ivy League (2018) ...................................... 5, 6

Susan T. Hill, The Traditionally Black

Institutions of Higher Education 1860 to

1982, National Center for Education

Statistics (1984) ................................................ 15

Tabitha Grier-Reed, The African American

Student Network: An Informal

Networking Group as a Therapeutic

Intervention for Black College Students

on a Predominantly White Campus,

J. Black Psychology 39(2) ................................. 11

William C. Kidder & Jay Rosner, How the

SAT Creates “Built-In Headwinds”: An

Educational and Legal Analysis of

Disparate Impact, 43 Santa Clara

L. Rev. 131 (2002) ............................................. 30

William G. Bowen & Derek Bok, The Shape

of the River: Long-Term Consequences of

Considering Race in College and

University Admissions (1998)........................... 30

INTEREST OF AMICI CURIAE1

Amici curiae are leaders of Historically Black

Colleges and Universities (“HBCUs”), as well as the

National Association for Equal Opportunity in Higher

Education (NAFEO).

Launched in 1969 to be “the voice for blacks in

higher education,” NAFEO is the national

membership association of the nation’s 106 HBCUs

and roughly 80 Predominantly Black Institutions

(PBIs). NAFEO’s members enroll more than 700,000

students, employ 720,000 faculty, and boast over 7

million alumni worldwide. NAFEO is led by President

and CEO Lezli Baskerville, a Harvard University

Advanced Leadership Fellow and Howard University

School of Law Distinguished Alumna.

The HBCU leaders who join NAFEO in submitting

this brief include:

Danielle R. Holley, Dean and Professor of Law,

Howard University School of Law;

Dennis J. Shields, President of the Southern

University System and Chancellor of the Southern

University and A & M College;

All parties filed blanket consents to the filing of all

amicus curiae briefs. No part of this brief was authored in

whole or in part by counsel for any party, and no person or

entity has made any monetary contribution to the

preparation or submission of this brief other than amici

curiae and their counsel.

Ronald Mason, Jr., President, University of the

District of Columbia;

Twinette L. Johnson, Acting Dean and Professor

of Law, University of the District of Columbia David

A. Clarke School of Law;

Malik Chaka Edwards, Interim Dean and John D.

Fassett Professor of Law, North Carolina Central

University School of Law;

Yolanda Pierce, Dean and Professor of Divinity,

Howard University School of Divinity; and

Gina Spivey-Brown, Dean of Howard University

School of Nursing and Allied Health.

Amici submit this brief to inform the Court of how

generations of discrimination still limit Black

students’ access to higher education—and make it

imperative that universities be permitted to consider

race as one of many factors in a holistic admissions

review. Amici also submit this brief to correct

Petitioners’ misstatements regarding HBCUs, which

deeply value diversity and also employ holistic

admissions reviews, and rebut the suggestion that

HBCUs’ ability to provide a quality education to Black

students makes it unnecessary for other institutions

to pursue diversity.

BACKGROUND

The history of anti-Black discrimination

in higher education and ongoing

disparities.

“The experience of Negroes in America has been

different in kind, not just in degree, from that of other

ethnic groups. It is not merely the history of slavery

alone but also that a whole people were marked as

inferior by the law. And that mark has endured.”

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 400–

01 (1978) (Marshall, J., separate opinion). As for the

role of universities, “[t]he academy never stood apart

. . . it stood beside church and state as the third pillar

of a civilization built on bondage.”2 Respondents

exemplify such a history, in which slavery, its legacy,

and anti-Black discrimination have been deeply

entwined with access to the nation’s top institutions

of higher education.

The legacy of discrimination against Black

students.

Harvard University has a long history of racial

discrimination, beginning with its enslavement of

Black persons and continuing through its disparate

treatment of Black applicants and students until

relatively recently.

From Harvard’s founding, slavery was an integral

part of campus life and the University’s funding.

Enslaved persons “served Harvard presidents and

professors and fed and cared for Harvard students”;

Craig Steven Wilder, Ebony & Ivy: Race, Slavery, and the

Troubled History of America's Universities 10 (2013).

those enslaved by Harvard’s stewards “likely served

Harvard’s students and maintained its campus.”3

“Through connections to multiple donors, the

University had extensive financial ties to, and

profited from, slavery . . . . During the first half of the

19th century, more than a third of the money donated

or promised to Harvard by private individuals came

from just five men who made their fortunes from

slavery and slave-produced commodities.”4 The

University also sponsored racist academic pursuits,

such as “‘race science’ and eugenics and conduct[ing]

abusive ‘research,’ including the photographing of

enslaved and subjugated human beings.”5

During and after slavery, Black persons were

barred from the halls of most institutions of higher

education. In many states, Black persons were barred

from obtaining any education. For example, the state

of North Carolina criminalized teaching enslaved

persons to read and write, citing the “tendency [of

literacy] to excite dissatisfaction in their minds and to

produce insurrection and rebellion, to the manifest

injury of the citizens of this State.” Act of 1831, ch. VI,

1831 N.C. Sess. Laws 11. The Act, which subjected

violators to fines, imprisonment, and whipping, was

typical of those passed in other states at the time.6

3 Harvard Radcliffe Institute, Harvard & the Legacy of Slavery

15 (2022), https://legacyofslavery.harvard.edu/report.

4 Id. at 11.

5 Id.

6 Leslie H. Fishel, Jr. & Benjamin Quarles, The Negro American:

A Documentary History 115 (1967).

Until the mid-twentieth century, the University of

North Carolina prohibited the enrollment of Black

students.7 The prohibition was lifted only after Black

prospective law students, represented by Thurgood

Marshall, secured a victory in McKissick v.

Carmichael, 187 F.2d 949 (4th Cir. 1951). But de facto

discrimination soon replaced de jure discrimination.

The inaugural class of three Black students at UNC

was driven out by student opposition, and “[a]ll three

students went on to earn their bachelor’s degrees

elsewhere.”8

Ivy League universities also discriminated against

Black students, representing what has been termed

the “Jim Crow North.”9 “[T]he members of the Ivy

League were private, elite, and unabashedly

exclusive.”10

The

first

African-American

undergraduate student graduated from Harvard in

1870, but until 1970 Harvard admitted fewer than 12

Black students annually.11 And exclusionary

Nicholas Graham, Historic African American Enrollment at

UNC, History on the Hill, UNC University Libraries (Apr. 21,

2016), https://blogs.lib.unc.edu/hill/2016/04/21/historic-africanamerican-enrollment-at-unc/.

8 Michael Beauregard, Column: The desegregation of UNC, The

Daily Tar Heel (Feb. 16, 2022),

https://www.dailytarheel.com/article/2022/02/opiniondesegregation-unc.

9 Stefan

M. Bradley, Upending the Ivory Tower: Civil Rights,

Black Power, and the Ivy League 23 (2018).

10 Id. at 5.

Amponsah, Moore, & Strickland, Welcome to the Harvard

Black Community, The Harvard Crimson (Sept. 11, 2017),

https://www.thecrimson.com/article/2017/9/11/welcome-blackharvard/.

dormitory policies kept many from matriculating.

“Each [Black applicant] would receive a special letter

indicating room prices. But if a black student could

neither ‘afford our cheapest single room in Standish’

nor ‘get any negro to room with him,’ he could not

reside [at Harvard].’”12 Several other Ivy League

universities applied similar rules into the twentieth

century.13

By 1910, “only fifty-four black students (men and

women) [had] graduated with their bachelor’s degrees

from elite [White institutions].”14 And by 1963, “‘the

new elite was still overwhelmingly white (about 98

percent).’”15 In the mid-twentieth century, “[e]lite

universities did much to open themselves to diverse

white ethnicities and religions, but still lagged in

terms of the admission of black students.”16

Marcia Graham Synnott, The Half-Opened Door:

Discrimination and Admissions at Harvard, Yale, and

Princeton, 1900-1970, at 91 (2013); see also Harvard & the

Legacy of Slavery, supra n.3 at 45-46.

13 Bradley, supra n.9 at 6-7 (Not until the late 1960s did “white

administrators finally believe[] it was important to fully

integrate black students with respect to admissions, housing,

and other aspects of college life”).

14 Bradley, supra n.9 at 26.

15 Id. at 7.

16 Id.

Segregation and persistent inequities also reduce

the Black applicant pool.

Ongoing de facto segregation, alongside the

systemic disparities that inevitably flow from

centuries of de jure and de facto discrimination,

reduced the Black college applicant pool even after

most overtly discriminatory admissions policies

ended in the mid-1950s and 1960s.

Slavery endured on American soil for more than

250 years and has been legally dismantled for less

than 160 years.17 In the Emancipation Proclamation’s

wake, the country struggled to adopt measures to

provide equality to Black persons—and then quickly

abandoned them.18 States and private institutions

wielded state-sanctioned discrimination via Jim Crow

laws and practices, subjugating Black citizens. Plessy

v. Ferguson, 163 U.S. 537 (1896), legalized

discrimination until this Court rectified its error in

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

But school segregation did not simply disappear; it

continued,

states

resisted

Brown’s

implementation. “White opposition to racially ‘mixed’

schools, born of racist attitudes about Black ability

and character promoted by slaveholders, blocked

equal access to education.”19 Thus, “[s]egregated,

under-resourced, and inferior elementary and

secondary schools became the norm for African

17 Michael A. Lawrence, The Thirteenth Amendment as Basis for

Racial Truth & Reconciliation, 62 Ariz. L. Rev. 637, 669 (2020).

18 Id. at 655.

19 Harvard & the Legacy of Slavery, supra n.3 at 9.

Americans.”20 Both Massachusetts and North

Carolina participated in primary and secondary

school segregation long after Brown. Massachusetts

did not formally outlaw segregation in schools until

1965.21 Even then, Boston’s schools remained

segregated through 1974.22 North Carolina

implemented the Pearsall Plan, which allowed

“private school tuition grants for parents whose

children were assigned to a desegregated school and

local referenda whereby a community could decide

whether to close its schools instead of desegregating

them.”23 Finally, in 1969, a federal court declared the

Pearsall Plan unconstitutional.24

Discriminatory housing policies also entrenched

school segregation after Brown. Redlining, which

rendered Black families ineligible for many federallybacked home loans, locked them into neighborhoods

with low home values and hobbled upward mobility.25

“Contemporary manifestations of [redlining], such as

persistently

lower home

values in

Black

neighborhoods, directly impact local services like

20 Id.

21 Dennis Ford Eagan, The Past, Present, and Future of School

Desegregation Law in Massachusetts, 34 Suffolk U. L. Rev. 541,

543 (2001).

22 Morgan v. Hennigan, 379 F.Supp. 410, 482 (D. Mass. 1974).

Davison M. Douglas, The Rhetoric of Moderation:

Desegregating the South During the Decade After Brown, 89 Nw.

U. L. Rev. 92, 112 (1994).

Godwin v. Johnson Cnty. Bd. of Educ., 301 F.Supp. 1339

(E.D.N.C. 1969).

25 J. Kenyon Kummings & Christopher H. Tienken, Redlining

Education, Kappa Delta Pi Record 100 (2021).

schools.”26 As a result, “Blacks are more likely to live

in racially isolated neighborhoods that concentrate

poverty, and thus circumscribe the tax bases on which

school districts draw for funding.”27 Differences in

school funding are staggering; during the 2015-2016

school year, predominantly non-White schools

received $23 billion less than predominantly White

schools.28

De facto school segregation persists today—and is

increasing in many areas.29 Between the 2008-2009

and 2019-2020 school years, intensely segregated

non-White Massachusetts schools increased from 143

to 192.30 In North Carolina, the number of racially

and economically isolated public schools grew by 6%

between the 2006-2007 and 2016-2017 school years.31

26 LaToya Baldwin Clark, Barbed Wire Fences: The Structural

Violence of Education Law, 89 U. Chi. L. Rev. 499, 512-13 (2022).

27 Osamudia James, Superior Status: Relational Obstacles in the

Law to Racial Justice and LGBTQ Equality, 63 B.C. L. Rev. 199,

209 (2022).

edBuild,

$23

Billion

2-4

(Feb.

https://edbuild.org/content/23-billion/full-report.pdf.

2019),

29 Gary Orfield et al., Brown at 60: Great Progress, a Long Retreat

and

Uncertain

Future

(May

15,

2014),

https://www.civilrightsproject.ucla.edu/research/k-12education/integration-and-diversity/brown-at-60-greatprogress-a-long-retreat-and-an-uncertain-future/Brown-at-60051814.pdf.

Jack Schneider et al., School Integration in Massachusetts:

Racial Diversity and State Accountability 4, 10 (2020),

https://cecr.ed.psu.edu/sites/default/files/Demography_Report_F

INAL_7.24.20.pdf.

31 Kris Nordstrom, Stymied by Segregation: How Integration Can

Transform North Carolina Schools and the Lives of Its Students,

Persistent and increasing school segregation

harms Black students’ educational opportunities.

Segregated schools offer fewer opportunities that are

key to success in today’s overcompetitive college

admissions environments, including Advanced

Placement programs, gifted programs, and high-level

math and science classes.32 The substandard

educational opportunities in segregated schools

decrease college matriculation. “[S]tudents who

attend a more racially segregated school have a lower

probability of later enrolling in a four-year college.”33

One study found that offers to minority students to

transfer from segregated, low-income schools to

higher-income,

predominantly

White

schools

“increase[d] the probability of [their] attending

college by 8 percentage points.”34 Thus, ongoing

school segregation, even today, continues to shrink

the Black applicant pool for higher education.

Education

Law

Project

(2018),

https://www.ncjustice.org/wp-content/uploads/2018/11/STYMIE

D-BY-SEGREGATION-Integration-can-Transform-NC-FINALweb.pdf.

32 Chandi Wagner, School Segregation: Then and Now 3, Center

for

Public

Education

(January

https://files.eric.ed.gov/fulltext/ED608823.pdf.

2017),

33 Jason Cook, Race-Blind Admissions, School Segregation, and

Student Outcomes: Evidence from Race-Blind Magnet School

Lotteries, IZA Institute of Labor Economics, DP No. 11909 3 (Oct.

2018), https://docs.iza.org/dp11909.pdf.

34 Peter Bergman, The Risks and Benefits of School Integration

for Participating Students: Evidence from a Randomized

Desegregation Program, IZA Institute of Labor Economics, DP

No. 11602 17 (June 2018), https://docs.iza.org/dp11602.pdf.

Black student communities are essential for

individual Black students to thrive at historically

White institutions.

In order for Black students who overcome these

structural inequities to thrive at historically White

institutions, it is critical that they have the support of

a Black student community. Some Black students

accepted to Ivy League schools report that that lack

of community drove them to choose an HBCU

instead.35 One student recounted: “It’s impossible to

figure [out who you are] in a space where you not only

feel like you have to assimilate to fit in[ ] . . . but you

have to prove that your existence has value.”36

Research supports the students’ skepticism. Black

students at predominantly White institutions

“experience more racial conflict, more pressure to

conform to stereotypes, and less equitable treatment

by faculty, staff, and teaching assistants than their

White counterparts[.]”37 They also “experience stress

related to acceptance or fitting in, cultural conflict, …

lack of resources, mistrust of the institution, racism,

social support, and stigma[.]”38 However, increasing

representation of Black students on campus leads to

Erica L. Green, Why Students Are Choosing H.B.C.U.s: ‘4

Years Being Seen as Family’, The N.Y. Times (June 11, 2022),

https://www.nytimes.com/2022/06/11/us/hbcu-enrollment-blackstudents.html.

36 Id.

37 Tabitha Grier-Reed, The African American Student Network:

An Informal Networking Group as a Therapeutic Intervention for

Black College Students on a Predominantly White Campus, J.

Black Psychology 39(2), 169, 170 (2013).

38 Id.

better educational experiences and outcomes.39 As

one UNC alumna testified, when more students of

color were present, it “made [her] more confident” and

enabled her “to share what [she] thought was

important to the course discussion regardless of who

else was in the room.” No. 21-1199, JA1010.

Recent, news-grabbing campus events underscore

Black applicants’ concerns over predominantly White

institutions’ campus climates. Just this May,

Stanford students found a noose hanging outside a

dormitory, the third such incident in as many years.40

In Summer 2020, thousands of Harvard students

received an email invoking lynching and racist

epithets.41 Black UNC students have been called

racial epithets and told “‘no slaves’ were allowed in a

frat house.”42 These events highlight the need for

communities of Black students on historically White

campuses, both to bring the benefits of diversity to the

39 See No. 21-707, JA1625 (expert report describing study that

“found that the level at which students of one’s own racial group

were represented on campus impacted academic and social

integration, academic achievement, and persistence”).

40 Jonathan Franklin, Stanford University investigates a noose

found in a campus tree as a hate crime, N.P.R. (May 10, 2022),

https://www.npr.org/2022/05/10/1097980610/stanforduniversity-noose-hate-crime.

41 Camille G. Caldera et al., FBI Launches Investigation into

Racist Email Sent to Thousands of Harvard Affiliates, The

Harvard Crimson (June 22, 2020),

https://www.thecrimson.com/article/2020/6/22/harvard-racistemail-equity-prime-mortgage/.

Benjamin Wermund, UNC students, alumni recount racial

slurs and tensions on campus, Politico (Mar. 6, 2019),

https://www.politico.com/story/2019/03/06/unc-race-admissions2800907.

broader student body and so that Black students feel

safe and supported.

II.

HBCUs’

history

providing

opportunities for black students.

The Founding of HBCUs.

“[F]ounded on the premise that everyone deserves

an opportunity to pursue higher education,” HBCUs

were created specifically to educate Black students,

who were barred from entry to almost all other

universities and colleges.43

America’s first Black college, initially called the

African Institute and later renamed Cheyney

University, was opened in Philadelphia in 1837 by a

Quaker philanthropist to train teachers and trade

and agricultural workers.44 Additional HBCUs were

established after the Civil War to serve newly-freed

Black Americans. By 1890, over 200 HBCUs had been

founded.45 These schools were created through the

combined efforts of Black churches, religious

societies, Northern philanthropists, and the Federal

Government’s Freedmen’s Bureau.46 While those who

43 Ronyelle Bertrand Ricard & M. Christopher Brown II, Ebony

Towers in Higher Education: The Evolution, Mission, and

Presidency of Historically Black Colleges and Universities 15

(2008).

The

First

Its

Kind,

Cheyney

https://cheyney.edu/who-we-are/the-first-hbcu/.

University,

M. Christopher Brown II, The Declining Significance of

Historically Black Colleges and Universities, 82 J. Negro Edu.,

1, 8 (2013).

5 Things To Know: HBCU Edition, National Museum of

African American History & Culture (Oct. 1, 2019),

founded and funded HBCUs sought to provide

educational opportunities for Black students, many of

them also were motivated by self-interest, seeking to

both Christianize Black Americans and train them for

industrial enterprises.47

In 1890, Congress passed the Second Morrill Act,

which required states with segregated higher

education systems to provide land grants and funding

to non-White colleges and universities.48 The Act

declared that these institutions would receive an

appropriation from the federal government as well as

a one-to-one match from the state government—

although many states refused to provide funding.49

While unintentional, the Second Morrill Act

“cemented” segregation and “formalized the

manifestation of [‘]separate but unequal[’] in higher

education.”50

Until the mid-1960s, more than 90% of Black

students enrolled in institutions of higher education

https://nmaahc.si.edu/explore/stories/5-things-know-hbcuedition.

47 See Marybeth Gasman, The Changing Face of Historically

Black Colleges and Universities 5, Penn Center for Minority

Serving Institutions (2013),

https://repository.upenn.edu/gse_pubs/335; Marybeth Gasman,

Envisioning Black Colleges: A History of the United Negro

College Fund 13 (2007) (“The funding system created by . . .

industrial moguls showed a strong tendency to control black

education for their own benefit.”).

48 Brown, supra n.45 at 8.

49 Denise A. Smith, Achieving Financial Equity and Justice for

HBCUs 4, The Century Foundation (Sept. 14, 2021).

50 Brown, supra n.45 at 9.

matriculated

HBCUs.51

Black

students’

professional options remained limited, however.

According to a 1915 survey, there were approximately

two dozen Black institutions of higher education in

the United States, but Howard University was one of

only three at which Black students could study

medicine, dentistry, or pharmacy, and the only one

with a law school.52

Though HBCUs differ from each other in a

multitude of ways, they share a common mission to

empower Black Americans and “uplift[] the condition

of the Black community.”53 Throughout their shared

history, the schools have developed role models for

Black youth, fostered expertise in educating

underprepared students, trained a generation of

Black leaders, and have served “as centers of black

culture.”54 As Justice Thomas explained in United

States v. Fordice, HBCUs “have succeeded in part

because of their distinctive histories and traditions;

for many, historically black colleges have become a

symbol of the highest attainments of black culture.”

505 U.S. 717, 748 (1992) (Thomas, J., concurring)

(internal quotation marks, citation omitted).

Mikyong Minsun Kim & Clifton F. Conrad, The Impact of

Historically Black Colleges and Universities on the Academic

Success of African-American Students, 47 Research in Higher

Education 399 (2006).

52 Susan T. Hill, The Traditionally Black Institutions of Higher

Education 1860 to 1982, National Center for Education

Statistics 5 (1984).

53 Ricard & Brown, supra n.43, 9.

54 Hill, supra n.52 at 41.

The Disparate Funding of HBCUs.

HBCUs provide an exceptional education to many

Black students, but cannot fill the gaps left by other

institutions’ failures to matriculate diverse classes.

The “dominant challenge” that HBCUs faced

historically—and continue to face today—is

underfunding.55 By the end of the nineteenth century,

private Black colleges had exhausted funding from

missionaries.56

White

northern

industrial

philanthropy emerged as a funding source, with the

General Education Board (GEB), a conglomeration of

philanthropists, giving $63 million to Black colleges

between 1903 and 1964.57 Though significant, this

was only about one-fifth of what GEB gave to

predominantly White institutions.58 Black colleges

also enrolled many students who could not afford to

pay tuition.59 By the early 1940s, HBCUs were

running at deficits, with many unable to keep up with

their operating costs.60

Public funding has disproportionately benefitted

predominantly White institutions. Though the 1944

GI Bill expanded access to higher education to

veterans and led to increased enrollments at HBCUs,

HBCUs lacked state support to expand their campus

infrastructure, housing, faculty and staff to serve

55 Ricard & Brown supra n.43, at 87.

56 Gasman, Envisioning Black Colleges, supra n.47 at 13.

57 Id.

58 Id.

59 Smith, supra n. 49 at 5.

60 Gasman, Envisioning Black Colleges, supra n. 47 at 20.

these students.61 As a result, about 20,000 Black

veterans were turned away from southern Black

colleges—double the rate at other colleges.62 It was

not until 1986 that Congress attempted to address the

financial needs of HBCUs through amendments to

the 1965 Higher Education Act, providing funding for

schools that met its definition of HBCUs.63 Yet

inequity persisted, and the past decades have seen a

decline in federal support, with private HBCUs seeing

a 42% reduction in federal funding between 2003 and

2015.64

Decades of underfunding have put today’s HBCUs

at a significant disadvantage compared to historically

White institutions. In 2020, the 10 largest HBCU

endowments totaled $2 billion, compared with $200

billion for the top 10 predominantly White

institutions.65 While Harvard’s endowment for the

2021 fiscal year was $53.2 billion, Howard’s

endowment was $712.5 million—75 times less.66

61 Smith, supra n.49 at 4-5.

62 Id. at 5.

63 Michael Arzate, Educating African Americans: A Brief Look

into Historically Black Colleges in America, National Archives:

Rediscovering

Black

History

(Oct.

22,

2013),

https://rediscovering-blackhistory.blogs.archives.gov/2013/10/22/educating-africanamericans-a-brief-look-into-historically-black-colleges-inamerica/.

64 Smith, supra n. 49 at 6.

65 Green, Why Students Are Choosing H.B.C.U.s, supra n.35.

How Harvard could really help historically Black colleges,

Tampa Bay Times Editorial Board, Tampa Bay Times (May 26,

III.

HBCUs’ ongoing role in the pursuit of

educational equality and diversity.

Despite their comparative lack of funding, HBCUs

continue to play an important role in preparing Black

students to enter professional life, and at the highest

levels. Today’s HBCUs provide not only opportunity

and education to a diverse student body, they also

provide a vital source of diverse candidates for

graduate and professional schools, adding to the

pipeline of talent into the higher education ecosystem.

HBCUs have educated 80% of the nation’s Black

judges; half of its Black doctors, and lawyers; and 40%

of the Black Members of Congress and engineers.67

While HBCUs make up only 3% of the colleges and

universities in the United States, HBCUs enroll 10%

of all Black students and produce almost 20% of all

Black college graduates.68 Since the early 2000s,

Howard University has sent at least as many Black

students to science and engineering Ph.D. programs

as Stanford, M.I.T., Harvard and Yale combined.69

HBCUs’ nurturing mission and growing visibility

have drawn a new wave of elite, highly competitive

students.70 Top-tier HBCUs “are increasingly

becoming the first choice for some of the nation’s most

2022);

see

also

Harvard

University,

https://www.harvard.edu/about/endowment/.

Endowment

67 Green, supra n.35.

The Numbers Don’t Lie: HBCUs Are Changing the College

Landscape, UNCF, https://uncf.org/the-latest/the-numbersdont-lie-hbcus-are-changing-the-college-landscape.

69 Green, supra n.35.

70 Id.

sought-after talent, according to interviews with

dozens of students, guidance counselors, admissions

advisers and college officials across the country.”71

Like Respondents, HBCUs value diversity and

pursue it through holistic admissions processes.72 For

example, Howard School of Law notes on its

Admissions page that while “poised to remain the

flagship in producing attorneys of color, we seek to

share the educational experience and richness that

this institution offers with ethnically and culturally

diverse individuals. Our approximately 450 students

are comprised of people from all walks of life . . . . from

almost every US state and many foreign nations.”73

The demographic breakdowns of students at

HBCUs vary widely from school to school, but many

are racially diverse.74 For example, Bluefield State

University in West Virginia is an HBCU, but over

80% of its students are White.75 At Xavier University

of Louisiana, one in five students are not Black.76

Asian American and Latinx enrollment at HBCUs

71 Id.

72 E.g., Spelman College, Admissions (“Our Board of Admission

completes a holistic review considering academic achievement,

leadership development, community service, extracurricular

activities, and personal essay among other factors.”),

https://www.spelman.edu/admissions/frequently-askedquestions.

Howard University School of Law,

http://law.howard.edu/content/admissions.

Admissions,

Debunking Common Myths About HBCUs (Sept. 30, 2021)

https://www.bestcolleges.com/resources/hbcu/common-myths/.

75 Id.

76 Id.

has increased significantly in recent years.77 And

while significant numbers of Black students

matriculate at many HBCUs, their holistic

admissions approaches ensure that there is intraracial diversity as well.

HBCUs are committed to socio-economic diversity,

disproportionately enrolling low-income, firstgeneration students.78 More than 75% of students at

HBCUs rely on Pell Grants,79 which are provided to

students who demonstrate “exceptional financial

need.”80 HBCUs also work to minimize the financial

obstacles their students face. On average, the cost of

attendance at an HBCU is 28% less than attending a

comparable non-HBCU, and 94% of HBCU students

receive some type of financial aid.81

Gasman, The Changing Face of [HBCUs], supra n.47 at 6

(Latinx and Asian-American enrollment has been particularly

vigorous at HBCUs in Texas).

78 See Liann Herder, UNCF Report Reveals Social Mobility Made

More Possible at HBCUs, Diverse Issues in Higher Education

(Nov. 18, 2021) (“Nationwide, institutions admit low-income

earners at a rate of 22.5% . . . HBCUs admit 51.3%),

https://www.diverseeducation.com/institutions/hbcus/article/15

281654/uncf-release-report-highlighting-the-success-of-hbcusat-moving-students-toward-the-middle-class.

About HBCUs, Thurgood Marshall College Fund,

https://www.tmcf.org/about-us/member-schools/about-hbcus/.

Emma Kerr, Everything You Need to Know About the Pell

Grant, U.S. News & World Report (Feb. 3, 2021),

https://www.usnews.com/education/best-colleges/paying-forcollege/articles/everything-you-need-to-know-about-the-pellgrant.

81 About HBCUs, supra n.79.

Recently, HBCUs have seen an increase in both

applications and admissions. Howard University’s

“[u]ndergraduate enrollment climbed 26 percent

between 2019 and 2021.”82 This fall, South Carolina

State University is welcoming one if its largest and

most diverse freshman classes ever; 800 students

have accepted offers of admission, double the number

from last year.83 Claflin University Interim VicePresident for enrollment management Reynolds

Brown equates this trend to students “seeing the

value in attending HBCU, both from the academic

side, and from the cultural aspect of it.”84

HBCUs thus will continue to play a critically

important role in educating Black students, as well as

many students from other racial backgrounds. But

their existence does not mean that non-HBCUs—and

particularly historically White institutions with

legacies of discrimination against Black students—

need not consider race as one aspect of a holistic

admissions review, just as many HBCUs do.

SUMMARY OF ARGUMENT

This Court should not overrule its holding in

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

in Fisher v. University of Texas at Austin (Fisher II),

579 U.S. 365 (2016), that race may be one factor in a

holistic admissions process. The interest this Court

82 Green, supra n.35.

83 Becky Budds, Local HBCU’s see increase in enrollment (July

5, 2022), https://www.wltx.com/article/news/local/local-hbcussee-increase-enrollment/101-d5ad6a0b-b83e-45b3-b7cda9e44a839dfd.

84 Id.

identified in Grutter and reaffirmed in Fisher II—

student body diversity—remains as compelling today.

Respondents and other top schools have yet to achieve

that goal and thereby enable students of all races to

participate fully and equally in academic life.

Amici HBCUs strongly support Harvard’s and

UNC’s efforts to achieve racial diversity. HBCUs also

strive for diversity in their admissions processes,

using similar holistic processes. Background, § III.

But it is of critical importance that institutions such

as Respondents, with long histories of excluding and

marginalizing Black students, be permitted to

consider race as one factor in a holistic review in order

to ensure that their incoming classes are racially

diverse and Black students can feel safe and welcome.

Contrary to Petitioners’ suggestion, the fact that

HBCUs provide a high-quality education to many

Black students is no reason to conclude that raceconscious admissions policies are no longer needed at

institutions like Harvard and UNC. HBCUs are

selective and cannot accept every student that will be

excluded from other universities if race is no longer

considered as part of a holistic admission process.

Petitioners’ suggestion that HBCUs can do so is, in

essence, a call for re-segregation in higher education.

The goal of all public and private universities

should be to cultivate a diverse student body where

students of all races are included and feel welcome.

That goal cannot be achieved at institutions that

historically discriminated against Black students

unless they are permitted to consider race as one

factor in a holistic admissions process.

ARGUMENT

I. Student body diversity remains a compelling

goal that many universities have yet to

achieve.

And if the word integration means anything, this

is what it means: that we, with love, shall force our

brothers to see themselves as they are, to cease

fleeing from reality and begin to change it. . . . [W]e

can make America what America must become.

James Baldwin, The Fire Next Time (1st ed. 1963).

A. Diversity in higher education remains a

compelling interest that HBCUs also

pursue—but

that

critical

for

historically White institutions.

The attainment of a diverse student body remains

as compelling an interest today as it was when this

Court upheld the holistic admissions analysis in

Grutter. That interest is particularly compelling for

elite historically White institutions such as

Respondents, which continue to be the most viable

portals—though not the sole portals, thanks in part to

HBCUs—into the highest levels of American life.

Justice O’ Connor explained in Grutter that

“universities occupy a special niche in our

constitutional tradition,” tasked with preparing the

leaders of tomorrow to enter public life and “today’s

increasingly [diverse] global marketplace.” 539 U.S.

at 329-30. She recognized that student body diversity

“promotes cross-racial understanding, helps to break

down racial stereotypes, and enables students to

better understand persons of different races.” Id. at

330 (cleaned up). Thirteen years later, Justice

Kennedy reaffirmed in Fisher II that many specific

“educational benefits [ ] flow from student body

diversity,” including better “learning outcomes,”

“cross-racial understanding,” the cultivation of

diverse leaders “for an increasingly diverse workforce

and society,” and the “break[ing] down [of] racial

stereotypes.” 579 U.S. at 381-82. Justice Kennedy

rejected the charge, repeated here, that these goals

are too “elusory or amorphous”; while they are not

numerical, they are “concrete and precise”, and

“mirror the ‘compelling interest’ this Court has

approved in its prior cases.” Id.

Nothing about the last six years has made

diversity any less compelling of an interest. As the

courts below recognized here, universities still have a

strong interest in pursuing diversity in order to

promote cross-racial understanding, train future

leaders, and break down stereotypes.85 The district

courts identified additional benefits of diversity,

including that it “produc[es] new knowledge,”

resulting in new fields of study and reshaping others;

“promotes a more robust academic environment with

a greater depth and breadth of learning;” “creates a

richer sense of community;” and “improve[s] faculty

scholarship.”86 See also No. 21-707, Pet.Cert.App.13

(recognizing UNC’s finding that “diversity enhances

student growth and development in the cognitive,

affective, and interpersonal domains”).

Contrary to the suggestion of Petitioners and some

amici (e.g., Okla.Br. 17-19), HBCUs also value and

85 E.g., No. 21-707, Pet.Cert.App.158-60.

86 No. 21-1199, Pet.Cert.App.34-35, 59, 108.

pursue diversity. For more than 150 years, HBCUs

have done their part to promote diversity, preparing

young and gifted Black men and women to lead—

including in spheres where they once were, and too

often remain, absent or unwelcome. Today’s HBCUs

promote student body diversity through their own

holistic admissions processes; like Respondents, they

undertake an individualized review of each applicant

that considers multiple factors including race,

ethnicity, socioeconomic status, and geographic

origin. Background, § III. As a result, significant

numbers of Black students learn alongside White,

Hispanic, Asian-American, Native American, and

international peers.87

As HBCUs do, every university should be

permitted to pursue diversity in a way that accounts

for its unique historical and present-day

characteristics. For historically White institutions

where past discrimination continues to have presentday effects, that means considering race as one of

many factors in a holistic analysis in order to ensure

that each class is racially diverse.

B. Student body diversity

unfulfilled goal.

remains

As this Court recently acknowledged, racial

discrimination remains “a familiar and recurring evil”

that “[t]he Nation must continue to make strides to

overcome.” Pena-Rodriguez v. Colo., 137 S.Ct. 855,

For example, in 2020, less than 68% of the Howard

undergraduate student body identified as Black, with the

remaining 32% comprised of Hispanic, Native American, White,

Asian-American, international, and mixed-race students.

See https://datausa.io/profile/university/howard-university.

868, 871 (2017); see also Rucho v. Common Cause, 139

S.Ct. 2484, 2502 (2019) (pointing to “our country’s

long and persistent history of racial discrimination”);

Gratz v. Bollinger, 539 U.S. 244,

298 (2003)

(Ginsburg, J., dissenting) (“[W]e are not far distant

from an overtly discriminatory past, and the effects of

centuries of law-sanctioned inequality remain

painfully evident in our communities and schools.”).

Petitioners ignore the history of anti-Black

discrimination in this nation’s universities—and its

present-day impacts. They rightly note historic

discrimination against Jewish and Asian-American

students, but studiously avoid acknowledging the

history of anti-Black discrimination. That approach is

disingenuous. When considering whether race may

play some role in a holistic admissions policy, this

Court must frankly acknowledge the unique (and

uniquely long) history of anti-Black discrimination in

higher education when determining what the Equal

Protection Clause requires or permits in that unique

context.

Contrary to Petitioners’ mantra (e.g., Br.47, 50),

neither the Constitution—which from the outset

discriminated against Black people, counting them as

less than full persons and excluding them from core

rights and economic self-determination—nor its

historical application to education is color-blind. The

Equal Protection Clause of the Fourteenth

Amendment was adopted specifically to redress

centuries of enslavement of Black people and antiBlack discrimination. And Harvard correctly points

out (Br.23-24) that the Congress that enacted it

subsequently passed race-conscious laws to benefit

Black Americans as they struggled to gain equal

footing, demonstrating that it did not intend the

Fourteenth Amendment to be applied in an entirely

race-neutral way.

As this Court stated in Grutter, “[c]ontext

matters.” 539 U.S. at 327. The context that motivated

both the adoption of the Fourteenth Amendment and

its application to permit some consideration of race in

university admissions processes is the historic

exclusion of and ongoing discrimination against Black

people in this country. The Court should not ignore

that critical context when deciding whether to

overturn Grutter, Fisher II, and its other precedents

allowing race to be considered a part of a holistic

admission review.

The Court also must consider the question before

it in light of the continuing lack of diversity in higher

education, and recognize the connection between

present disparity and past discrimination. To this

day, Black students are still admitted to Harvard,

UNC, and other top institutions in relatively small

numbers88—just as this Court recognized six years

ago in Fisher II, noting that the majority of classes at

the University of Texas had no Black students. 579

U.S. at 384. Since Fisher II, we have learned that the

effects of enslavement and segregation cannot be

remedied in a generation. They are pernicious, deepseated, and permeate many aspects of our society—

See, e.g., No. 21-1199, Pet.Cert.App.207-208 (between 1980

and 2019, the share of Black students at Harvard increased only

modestly from the high single digits to the low double digits,

while “the Asian American proportion of the admitted class has

increased roughly five-fold”).

including who applies, and who is admitted, to top

universities.

As Justice O’Connor recognized, diversity has not

been achieved where minority students are admitted

in “only token numbers.” Grutter, 539 U.S. at 333.

That deprives them of the opportunity to have their

unique viewpoints—informed by their experiences

growing up Black or Brown in America, but not

defined by it—understood by their peers to be one of

many diverse views held by minority students. It is

only when Black and other minority students are

represented in sufficient numbers in the classroom to

be viewed as more than token representatives of their

race that the educational experience can “diminish[ ]

the force of [the racial] stereotypes” that still prevail.

Id. Indeed, it is the burden of being one of few among

many that has driven many excellent Black students

to choose to attend an HBCU, rather than other toptier options, in order to enjoy a more inclusive

educational experience. Black students should not be

forced to make such a choice—but they will be until

historically White institutions achieve sufficient

diversity to ensure that Black students are

consistently represented in non-token numbers.

While a day may come when race can be

disregarded in the admissions process, it is evident

that erasing the effects of centuries of anti-Black

discrimination to “level the playing field” for Black

students will take more time. To see that diversity

and its benefits have yet to be achieved, one need only

consider the demographics at Harvard and UNC,

where Black students remain underrepresented,89

and the experiences of Black students who have

matriculated only to “experience loneliness and

tokenism”90—and outright racism.91

So long as top universities remain “much less

divers[e]” than the population from which they

draw,92 and so long as isolation, marginalization, and

racial threats93 are regular features of Black student

life, some consideration of race as part of a holistic

admissions analysis remains necessary to achieve the

compelling interest of student body diversity—and

secure its broader societal benefits.

89 See No. 21-707, Pet.Cert.App.19-20 (UNC “continues to face

challenges admitting

and enrolling underrepresented

minorities, particularly African American males”); id. at 21

(“72% of UNC students identify as white, while only 0.5%

identify as American Indian/Alaska Native, 8% as African

American, 8% as Hispanic, and 12% as Asian/Asian American …

these numbers reflect much less diversity than North Carolina

as a whole ….”).

No. 21-707, Pet.Cert.App.20; id. at 21 (half of Black UNC

students felt pressured to represent the views of their race in

class, and 40% felt that they had to minimize aspects of their

racial identity to fit in), 61 (testimony from minority students

that they felt isolated and forced to speak for their race due to

underrepresentation); No. 21-1199, Pet.Cert.App.78, n.33

(testimony from Black Harvard student that she felt isolated due

to the low representation of Black students in her classes).

91 No. 21-707, Pet.Cert.App.21 (91% of UNC students had heard

insensitive and disparaging racial remarks, and 95% of African

American students had experienced bias).

92 Id.

93 See p.12 supra (recent examples).

II.

Overruling Grutter would undermine

student body diversity to the detriment of

American universities and society.

If historically White universities such as

Respondents are not permitted to consider race, even

as one factor in a holistic analysis, the result will not

be a color-blind admissions system that ensures that

the best-qualified students gain space at top

universities. It will be an admissions system that,

once again, favors White applicants and admits

significantly fewer Black students.

Prohibiting universities from considering consider

race as part of their holistic admissions processes

would not result in equal access. Rather, racial

barriers remain baked into the process through

considerations that—though facially neutral—

systemically disadvantage Black and Brown

students. Cf. Ramos v. La., 140 S.Ct. 1390, 1394

(2020) (striking down state law that was “facially

race-neutral” but was implemented to negate the

participation of Black persons in public life as part of

an effort to “establish the supremacy of the white

race”). Thanks to decades of overt and covert

discrimination, many factors considered by elite

schools overwhelmingly favor White applicants.

Standardized tests systematically undervalue Black

students.94 Legacy status gives an applicant the

94 See William C. Kidder & Jay Rosner, How the SAT Creates

“Built-In Headwinds”: An Educational and Legal Analysis of

Disparate Impact, 43 Santa Clara L. Rev. 131, 152 (2002)

(describing process by SAT designers to discard questions

“correctly answered by more Blacks than Whites”); William G.

Bowen & Derek Bok, The Shape of the River: Long-Term

Consequences of Considering Race in College and University

equivalent of a 47-160 point increase on the SAT.95

Applicants designated as legacies, “Dean’s interest”

(i.e., children of donors), athletes, or children of

faculty (“LDACs”) generally make up 30% of each

class at Harvard96—even though that applicant pool

is disproportionately White.97 Meanwhile, the

percentage of Harvard students that are Black

remains stagnant, ranging only from the high singledigits in 1980 to the low double-digits in 2019.98

As the First Circuit recognized, the result of

barring universities from considering race would be a

“dramatic decline” in diversity. No. 21-1199,

Pet.App.77. The Massachusetts district court found

that “eliminating consideration of race would cause

the African American representation at Harvard to

decline from approximately 14% to 6%”; i.e., “more

than half of the admitted African Americans[ ] would

most likely not be admitted in the absence of

Harvard’s race-conscious admissions process.”99

Because elite institutions such as Harvard continue

to function as key pipelines into top graduate schools,

that decline in undergraduate diversity will have a

Admissions 44-45 (1998) (discussing studies of standardized

tests and law school admissions).

95 Peter Schmidt, Color and Money: How Rich White Kids Are

Winning the War over College Affirmative Action 31 (2007).

96 No 21-1199, Pet.Cert.App.25, 169.

97 Id. at 25.

98 Id. at 207.

99 No. 20-1199, Pet.Cert.App.210; see also Fisher II, 579 U.S. at

383 (noting that the six-year period where the University of

Texas employed a supposedly race-neutral analysis was marked

by “consistent stagnation in terms of the percentage of minority

students enrolling”).

detrimental impact on diversity in professions

ranging from finance to medicine to law, where Black

professionals remain underrepresented.100

Petitioners argue that losses in Black student

admissions as a result of a race-neutral approach can

be avoided if universities cease giving preferences to

legacies and children of donors or faculty. That is

contrary to the record evidence. The Massachusetts

district court found that, if Harvard stopped

considering both race and “LDC” status, AfricanAmerican student admissions still would drop by

about 32%, from 14% to 10% of each class.101 That is

no small matter. As one Harvard student testified,

students of color are already “a huge minority in

almost every space” on campus, and any further loss

representation

would

“catastrophic.”

No. 20-1199, Pet.Cert.App.78, n.33. It would deter

Black students from matriculating, deepening the

racial impact of applying a supposed race-neutral

admissions analysis.

Further, the question this Court has taken up is

whether, under the Equal Protection Clause, race can

be one factor in a holistic admissions analysis. If the

Court answers that question in the negative, the

100 For evidence of the ongoing lack of diversity in the high

echelons of professional life one need look no further than the

cover of Petitioners’ brief, written by nine White men.

101 No. 20-1199, Pet.Cert.App.74-77. Petitioners’ suggestion that

losses in numbers of Black students can also be avoided by

removing consideration of standardized tests is similarly

misplaced, as the Massachusetts district court found only that

such an approach “might” increase overall diversity “slightly,”

and made no findings as to the impact on Black applicants

specifically. No 21-1199, Pet.Cert.App.216.

result will be that universities are barred from any

consideration of race, even while they remain

permitted to consider factors that advantage White

applicants. There is nothing “equal” about that

process or result.

In short, directing admissions officers to ignore

race in their review process will lead not only to far

less diverse student bodies, but serve to reinforce—

and likely exacerbate—ongoing racial disparities in

all other aspects of American society. See Fisher v.

Univ. of Tex. at Austin, 570 U.S. 297, 335 (2013)

(Ginsburg, J., dissenting) (“only an ostrich could

regard the supposedly neutral alternatives . . . as race

unconscious”). While the impacts will be felt most

immediately by Black students, we all lose in the end,

receding from rather than advancing toward the goal

of a truly equal nation, where persons of all races are

equally integrated into all aspects of life and

centuries-old racial divides finally overcome.

Moreover, if consideration of race as one factor in

a holistic admissions analysis is barred, the

admissions process will not only become more

unequal but also place unique burdens on students of

color. SFFA is mistaken to suggest universities could

simply replace race-consciousness with consideration

of whether an applicant has “overcom[e]

discrimination.” Pet.Br.52. Such an approach again

would put Black students at a disadvantage. They

would feel compelled to emphasize their racial

identities in their applications even if they would

prefer to write about their love of physics or volunteer

work with special needs children. Again, it is Black

and other minority students who would be burdened

and disadvantaged by our inability to frankly

acknowledge what is so evidently true: Race still

matters in our society. Until it ceases to do so, we

must consider race when deciding who gains the

privilege of admission to our institutions of higher

learning, and the life-long advantages it bestows.

Thus, when it comes to higher education, “the way

to stop discrimination on the basis of race” is not

simply “to stop discriminating on the basis of race.”

Pet.Br.71 (quoting Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007)).

That platitude falsely equates this Nation’s centurieslong history of racism and discrimination against

Black students with the effects on non-Black students

of the more recent, limited measures designed to

further the compelling goal of racial diversity in

higher education in light of that history. So long as the

effects of the centuries when Black students were

excluded from equal access to higher education

endure—which they indisputably still do—

historically White institutions such as Harvard and

UNC cannot realistically achieve student body

diversity without some consideration of race.

III.

HBCUs cannot redress the legacy of

racism in higher education—nor should

they be asked to.

While Petitioners are correct that HBCUs provide

high quality education (Br.55), they are not a fallback

option for Black students not admitted elsewhere.

Many HBCUs are highly selective. For the class of

2025, Howard University’s admissions rate was

35%.102 Hampton University’s 2020 acceptance rate

was 36%.103 Florida A&M University, the only

historically black university in the Florida system,

accepted only 33% of applicants in 2020.104 And many

students who matriculate at HBCUs turn down spots

at other top-tier universities, choosing to attend an

HBCU in order to enjoy the sense of community that

is unique to HBCUs.105

Furthermore, HBCUs, which remain starved for

funding in comparison to historically White

institutions, cannot serve every Black student who is

denied a spot at another institution as a result of a

supposedly race-neutral admissions policy. Not only

do they lack the resources to do so, redressing other

institutions’ lack of diversity should not be HBCUs’

responsibility. By suggesting that HBCUs can serve

that function, Petitioners essentially advocate a

return to a segregated dual system of higher

education. That, of course, is directly at odds with the

Court’s decision in Brown.

HBCUs will continue to educate young people of

all colors to enter professional life and become leaders

in their chosen field, but their ability to provide a

quality education to Black students is no reason to

102 Howard University, Admission Profile,

https://admission.howard.edu/undergraduate/admission-profile.

103 Hampton University - Profile, Rankings and Data, U.S.

News and World Report https://www.usnews.com/bestcolleges/hampton-university-3714.

104 Florida A&M University - Profile, Rankings and Data, U.S.

News and World Report, https://www.usnews.com/bestcolleges/florida-am-university-1480.

105 See Green, supra n.35.

conclude that other institutions no longer need strive

for diversity. To the contrary, that Black students

come to HBCUs to feel safe and avoid marginalization

only highlights how far other institutions remain

from achieving diversity.

Just as HBCUs do, historically White institutions

like Harvard and UNC should be permitted to fashion

holistic admissions policies. Those policies must

account for the historic discrimination against Black

and other minority students, and address how that

legacy continues to interfere with the ability to attract

and create a diverse student body. Allowing

universities and colleges to consider race as but one

relevant factor in a holistic admissions analysis is,

frankly, the minimum needed to ensure that the

Equal Protection Clause applies in practice to

guarantee equal opportunities for Black students.

CONCLUSION

The Court should uphold the decisions below,

allowing Respondents to continue to consider race as

one factor in their holistic admissions analysis.

Respectfully submitted,

AMY PAULI

Crowell & Moring LLP

999 18th Street

Denver, CO 80202

KEVIN D. CACABELOS

HENRY W. LEUNG

3 Embarcadero Center

San Francisco, CA

94111

LAUREL PYKE MALSON

Counsel of Record

AMANDA SHAFER BERMAN

JESSICA D. GILBERT

Crowell & Moring LLP

1001 Pennsylvania Ave., N.W.

Washington, DC 20004

(202) 624-2500

lmalson@crowell.com

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.