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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Text

Nos. 20-1199 & 21-707

In the

Supreme Court of the United States

————————————

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

PRESIDENT AND FELLOWS OF HARVARD COLLEGE,

Respondent.

————————————

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,

UNIVERSITY OF NORTH CAROLINA, ET AL.,

Respondents.

————————————

ON WRITS OF CERTIORARI TO THE UNITED STATES COURTS

OF APPEALS FOR THE FIRST AND FOURTH CIRCUITS

————————————

BRIEF FOR AMICI CURIAE

AMERICAN PSYCHOLOGICAL ASSOCIATION,

MASSACHUSETTS PSYCHOLOGICAL

ASSOCIATION, AND NORTH CAROLINA

PSYCHOLOGICAL ASSOCIATION

IN SUPPORT OF RESPONDENTS

————————————

DEANNE M. OTTAVIANO

General Counsel

NATHALIE GILFOYLE

AMERICAN PSYCHOLOGICAL

ASSOCIATION

750 First Street, NE

Washington, DC 20002

MELISSA ARBUS SHERRY

Counsel of Record

PETER A. PRINDIVILLE*

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2200

melissa.sherry@lw.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTERESTS OF AMICI CURIAE ..............................1

INTRODUCTION

AND

SUMMARY

ARGUMENT .........................................................3

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

A. Discrimination,

Prejudice,

And

Underrepresentation Remain Prevalent

On College Campuses ....................................5

B. Discrimination,

Prejudice,

And

Underrepresentation Inflict Academic

Harm ...............................................................8

C. Student Diversity Benefits All Students

And The Nation ............................................14

CONCLUSION ..........................................................28

TABLE OF AUTHORITIES

Page(s)

CASES

Fisher v. University of Texas at Austin,

570 U.S. 297 (2013) ................................................2

Fisher v. University of Texas at Austin,

579 U.S. 365 (2016) ................................ 2, 3, 14, 15

Grutter v. Bollinger,

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

Hall v. Florida,

572 U.S. 701 (2014) ................................................2

Knick v. Township of Scott,

139 S. Ct. 2162 (2019)............................................4

Moore v. Texas,

137 S. Ct. 1039 (2017)............................................2

Regents of University of California v. Bakke,

438 U.S. 265 (1978) .................................... 4, 15, 24

OTHER AUTHORITIES

Christopher L. Aberson & Sarah C. Haag,

Contact, Perspective Taking, and Anxiety

as Predictors of Stereotype Endorsement,

Explicit Attitudes, and Implicit Attitudes,

10 Group Processes & Intergroup

Relations 179 (2007) ............................................19

Sigal Alon & Marta Tienda, Assessing the

“Mismatch” Hypothesis: Differences in

College Graduation Rates by Institutional

Selectivity, 78 Sociol. Educ. 294 (2005) .........21, 23

iii

TABLE OF AUTHORITIES—Continued

Page(s)

American Psychological Association, Bylaws

of the American Psychological Association.

Article I: Objects (2008),

http://www.apa.org/about/governance/

bylaws/article-1 ......................................................2

Anthony L. Antonio, The Influence of

Friendship Groups on Intellectual SelfConfidence and Educational Aspirations

in College, 75 J. Higher Educ. 446 (2004) ...........24

Anthony L. Antonio et al., Effects of Racial

Diversity on Complex Thinking in College

Students, 15 Psychol. Sci. 507 (2004) ..................25

Ian Ayres & Richard Brooks, Does Affirmative

Action Reduce the Number of Black

Lawyers?, 57 Stan. L. Rev. 1807 (2005) ..............22

Mahzarin Banaji & Anthony Greenwald,

Blindspot: Hidden Biases of Good People

(2016) ......................................................................6

Janelle T. Billingsley & Noelle M. Hurd,

Discrimination, Mental Health and

Academic Performance Among

Underrepresented College Students: the

Role of Extracurricular Activities at

Predominantly White Institutions, 22 Soc.

Psychol. Educ. 421 (2019) ......................................9

Jacob Bor et al., Police Killings and Their

Spillover Effects on the Mental Health of

Black Americans: a Population-based,

Quasi-experimental Study, 392 Lancet 302

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

TABLE OF AUTHORITIES—Continued

Page(s)

William G. Bowen & Derek Bok, The Shape of

the River: Long-Term Consequences of

Considering Race in College and

University Admissions (1998) ..............................21

Nicholas A. Bowman, College Diversity

Experiences and Cognitive Development: A

Meta-Analysis, 80 Rev. Educ. Res. 4 (2010)........25

Nicholas A. Bowman, Promoting

Participation in a Diverse Democracy: A

Meta-Analysis of College Diversity

Experiences and Civic Engagement, 81

Rev. Educ. Res. 29 (2011) ....................................15

Nicholas A. Bowman et al., Institutional

Racial Representation and Equity Gaps in

College Graduation, 93 J. Higher Educ.

399 (2022) .............................................................16

Tiffany N. Brannon & Andy Lin, “Pride and

Prejudice” Pathways to Belonging:

Implications for Inclusive Diversity

Practices Within Mainstream Institutions,

76 Am. Psychol. 488 (2020) .................................13

Mara Cadinu et al., Stereotype Threat: The

Effect of Expectancy on Performance, 33

Euro. J. Soc. Psychol. 267 (2003) ........................11

Mitchell R. Campbell & Markus Brauer, Is

Discrimination Widespread? Testing

Assumptions About Bias on a University

Campus, 150 J. Experimental Psychol.:

General 756 (2021)..................................... 7, 19, 20

TABLE OF AUTHORITIES—Continued

Page(s)

Rebecca Carey et al., Is Diversity Enough?

Cross-Race and Cross-Class Interactions

in College Occur Less Often Than

Expected, but Benefit Members of LowerStatus Groups When They Occur, J. Pers.

& Soc. Psychol. (forthcoming 2022) .....................16

Scott Carrell, et al., The Impact of College

Diversity on Behavior Toward Minorities,

11 Am. Econ. J.: Econ. Pol'y 159 (2019) .......18, 27

Mitchell J. Chang et al., Considering the

Impact of Racial Stigmas and Science

Identity: Persistence Among Biomedical

and Behavioral Science Aspirants, 82 J.

Higher Educ. 564 (2011) ......................................22

Mitchell J. Chang et al., Cross-Racial

Interaction Among Undergraduates: Some

Consequences, Causes, and Patterns, 45

Res. in Higher Educ. 529 (2004) ...................15, 25

Jean-Claude Croizet et al., Stereotype Threat

Undermines Intellectual Performance by

Triggering a Disruptive Mental Load, 30

Pers. & Soc. Psychol. Bull. 721 (2004) ................11

David S. Curtis et al., Highly Public AntiBlack Violence Is Associated with Poor

Mental Health Days for Black Americans.

118 Proc. Natl. Acad. Sci. 1 (2021) ........................9

TABLE OF AUTHORITIES—Continued

Page(s)

Nida Denson & Mitchell J. Chang, Racial

Diversity Matters: The Impact of DiversityRelated Student Engagement and

Institutional Context, 46 Am. Educ. Res. J.

322 (2009) .............................................................23

Nida Denson & Shirley Zhang, The Impact of

Student Experiences with Diversity on

Developing Graduate Attributes, 35

Studies Higher Educ. 529 (2010) ........................23

Dawn Richards Elliott et al., Rethinking

Racial Diversity Benchmarks in Higher

Education, 15 J. Diversity in Higher Educ.

1 (forthcoming 2022) ............................................15

Mark E. Engberg, Educating the Workforce

for the 21st Century: A Cross-Disciplinary

Analysis of the Impact of the

Undergraduate Experience on Students'

Development of a Pluralistic Orientation,

48 Res. Higher Educ. 283 (2007) .........................26

Mary J. Fischer & Douglas S. Massey, The

Effects of Affirmative Action in Higher

Education, 36 Soc. Sci. Research 531

(2007) ....................................................................22

Liliana M. Garces, Understanding the Impact

of Affirmative Action Bans in Different

Graduate Fields of Study, 50 Am. Educ.

Res. J. 251 (2013) ...................................................8

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Juan C. Garibay et al., Racially Inclusive

Climates Within Degree Programs and

Increasing Student of Color Enrollment:

An Examination of

Environmental/Sustainability Programs,

11 J. Diversity in Higher Educ. 201 (2018) ........16

L.E. Gomez, et al., Diversity Improves

Performance and Outcomes, 111 J. Natl.

Med. Assoc. 383 (2019) ........................................26

Patricia M. Gonzales et al., The Effects of

Stereotype Threat and Double-Minority

Status on the Test Performance of Latino

Women, 28 Pers. & Soc. Psychol. Bull. 659

(2002) ....................................................................10

Anthony G. Greenwald & Linda Hamilton

Kreiger, Implicit Bias: Scientific

Foundations, 94 Cal. L. Rev. 945 (2006) .............18

Anthony G. Greenwald et al., Understanding

and Using the Implicit Association Test:

III. Meta-Analysis of Predictive Validity,

97 J. Personality & Soc. Psychol. 17 (2009) ..........5

Eric Hehman et al., Where the Division Lies:

Common Ingroup Identity Moderates the

Cross-Race Facial-Recognition Effect, 46 J.

Experimental Soc. Psychol. 445 (2010) .........17, 18

Sylvia Hurtado, The Next Generation of

Diversity and Intergroup Relations

Research, 61 J. Soc. Issues 595 (2005) ................25

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Maryam Hussain et al., Discrimination,

Diversity, and Sense of Belonging:

Experiences of Students of Color, 14 J.

Diversity in Higher Educ. 63 (2021) ...................16

Michael Johns et al., Stereotype Threat and

Executive Resource Depletion: Examining

the Influence of Emotion Regulation, 137

J. Experimental Psychol.: Gen. 691 (2008) ...........9

Thomas J. Kane, Misconceptions in the

Debate Over Affirmative Action in College

Admissions, in Chilling Admissions: The

Affirmative Action Crisis and the Search

for Alternatives (Gary Orfield & Edward

Miller eds., 1998) .................................................21

Thomas F. Nelson Laird, College Students'

Experiences with Diversity and Their

Effects on Academic Self-Confidence,

Social Agency, and Disposition Toward

Critical Thinking, 46 Res. Higher Educ.

365 (2005) .............................................................24

Edward P. Lemay, Jr. et al., Common Ingroup

Identity, Perceived Similarity, and

Communal Interracial Relationships, 47

Pers. & Soc. Psychol. Bull. 985 (2021) ................18

Angela M. Locks et al., Extending Notions of

Campus Climate and Diversity to

Students' Transition to College, 31 Rev.

Higher Educ. 257 (2008) ......................................14

TABLE OF AUTHORITIES—Continued

Page(s)

Jiali Luo & David Jamieson-Drake, A

Retrospective Assessment of the

Educational Benefits of Interaction Across

Racial Boundaries, 50 J. Coll. Student

Dev. 67 (2009) ......................................................23

Dan P. Ly et al., Affirmative Action Bans and

Enrollment of Students From

Underrepresented Racial and Ethnic

Groups in U.S. Public Medical Schools,

175 Annals Internal Med. 873 (2022) ...................8

Rose Meleady, et al., Evidence of a Dynamic

Association Between Intergroup Contact

and Intercultural Competence, 24 Group

Processes & Intergroup Rel. 1427 (2020)............24

Jeffrey F. Milem et al., Making Diversity

Work on Campus: A Research-Based

Perspective (2005),

https://web.stanford.edu/

group/siher/AntonioMilemChang_making

diversitywork.pdf ...........................................12, 24

Mary C. Murphy et al., Signaling Threat:

How Situational Cues Affect Women in

Math, Science, and Engineering Settings,

18 Psychol. Sci. 879 (2007) ..................................13

Samuel D. Museus et al., Modeling Racial

Differences in the Effects of Racial

Representation on 2-Year College Student

Success, 13 J. Coll. Student Retention 549

(2012) ....................................................................12

TABLE OF AUTHORITIES—Continued

Page(s)

Birenee A. Nagda et al., Learning About

Difference, Learning with Others,

Learning to Transgress, 60 J. Soc. Issues

195 (2004) .............................................................23

National Center for Education Statistics,

Institute of Education Sciences, U.S.

Department of Educ., Hate Crime

Incidents at Postsecondary Institutions,

https://nces.ed.gov/programs/coe/indicator/

a22 (last updated May 2022) .................................5

Andreas Olsson et al., The Role of Social

Groups in the Persistence of Learned Fear,

309 Sci. 785 (2005) ...............................................18

Ivuoma N. Onyeador et al., The Value of

Interracial Contact for Reducing AntiBlack Bias Among Non-Black Physicians:

A Cognitive Habits and Growth

Evaluation (CHANGE) Study Report, 31

Psychol. Sci. 18 (2020) ...................................16, 26

Elizabeth Page-Gould et al., Understanding

the Impact of Cross-group Friendship on

Interactions with Novel Outgroup

Members, 98 J. Pers. & Soc. Psychol. 775

(2010) ....................................................................13

Elizabeth Levy Paluck et al., Prejudice

Reduction: Progress and Challenges, 72

Ann. Rev. Psychol. 533 (2021) .............................20

TABLE OF AUTHORITIES—Continued

Page(s)

Adam R. Pearson et al., The Nature of

Contemporary Prejudice: Insights from

Aversive Racism, 3 Soc. & Pers. Psychol.

Compass 3 (2009) .................................................17

Terrance J. Pell, Racial Preferences and

Formal Equality, 34 J. Soc. Phil. 309

(2003) ....................................................................21

Louis A. Penner et al., Aversive Racism and

Medical Interactions with Black Patients:

A Field Study, 46 J. Experimental Soc.

Psychol. 436 (2010) ................................................5

Thomas F. Pettigrew & Linda R. Tropp, A

Meta-Analytic Test of Intergroup Contact

Theory, 90 J. Pers. & Soc. Psychol. 751

(2006) ....................................................................16

Gary Pike et al., Relationships Among

Structural Diversity, Informal Peer

Interactions and Perceptions of the

Campus Environment, 29 Rev. Higher

Educ. 425 (2006) ..................................................25

Richard Pitt & Josh Packard, Activating

Diversity: The Impact of Student Race on

Contributions to Course Discussions, 53

Sociol. Q. 295 (2012). ...........................................24

Wendy J. Quinton, Unwelcome on Campus?

Predictors of Prejudice Against

International Students, 12 J. of Diversity

in Higher Educ. 156 (2019) .................................18

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Kimberly Rios et al., Negative Stereotypes

Cause Christians to Underperform in and

Disidentify with Science, 6 Soc. Psychol. &

Pers. Sci. 959 (2015) ............................................10

Harriet E.S. Rosenthal & Richard J. Crisp,

Reducing Stereotype Threat by Blurring

Intergroup Boundaries, 32 Pers. & Soc.

Psychol. Bull. 501 (2006) ...............................10, 13

Melody S. Sadler, et al., The World Is Not

Black and White: Racial Bias in the

Decision to Shoot in a Multiethnic Context,

68 J. Soc. Sci. Issues 286 (2012) .........................27

Toni Schmader & Michael Johns, Converging

Evidence That Stereotype Threat Reduces

Working Memory Capacity, 85 J. Pers. &

Soc. Psychol. 440 (2003).......................................11

Toni Schmader et al., A Metacognitive

Perspective on the Cognitive Deficits

Experienced in Intellectually Threatening

Environments, 35 Pers. & Soc. Psychol.

Bull. 584 (2009) ................................................9, 10

Toni Schmader et al., An Integrated Process

Model of Stereotype Threat Effects on

Performance, 115 Psychol. Rev. 336 (2008) ..10, 11

Denise Sekaquaptewa & Mischa Thompson,

Solo Status, Stereotype Threat, and

Performance Expectancies: Their Effects on

Women's Performance, 39 J. Experimental

Soc. Psychol. 68 (2003).........................................12

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

Denise Sekaquaptewa et al., Solo Status and

Self-Construal: Being Distinctive

Influences Racial Self-Construal and

Performance Apprehension in African

American Women, 13 Cultural Diversity &

Ethnic Minority Psychol. 321 (2007).............12, 13

Samuel R. Sommers et al., Cognitive Effects of

Racial Diversity: White Individuals'

Information Processing in Heterogeneous

Groups, 44 J. Experimental Soc. Psychol.

1129 (2008) ...........................................................25

Courtney Stevens et al., Racial/ethnic

Disparities in US College Students'

Experience: Discrimination as an

Impediment to Academic Performance, 66

J. Am. Coll. Health 665 (2018) ..............................7

Rhiannon N. Turner et al., The Role of

Individual Differences in Understanding

and Enhancing Intergroup Contact, 14

Soc. & Pers. Psychol. Compass 1 (2020) .............20

U.S. Bureau of Labor Statistics, Economic

News Release, College Enrollment and

Work Activity of High School Graduates,

(Apr. 28, 2020),

http://www.bls.gov/news.release/

archives/hsgec_04282020.htm ...............................7

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Jay J. Van Bavel & William A. Cunningham,

Self-Categorization with a Novel MixedRace Group Moderates Automatic Social

and Racial Biases, 35 Pers. & Soc.

Psychol. Bull. 321 (2009) ...............................17, 18

Gregory M. Walton & Geoffrey L. Cohen, A

Brief Social-belonging Intervention

Improves Academic and Health Outcomes

of Minority Students, 331 Sci. 1447 (2011) .........13

Melissa Williams, et al., The Face of STEM:

Racial Phenotypic Stereotypicality Predicts

STEM Persistence by-and Ability

Attributions About-Students of Color, 116

J. Personality & Soc. Psychol. 416 (2019) ...........22

Daniel B. Wright et al., Inter-racial Contact

and the Own-race Bias for Face

Recognition in South Africa and England,

17 Applied Cognitive Psychol. 365 (2003)...........17

INTERESTS OF AMICI CURIAE1

The American Psychological Association (APA) is

a nonprofit scientific and educational organization

dedicated

increasing

and

disseminating

psychological knowledge. With more than 133,000

members and affiliates, APA is the largest

organization of psychologists in the world.

Psychology is a diverse discipline grounded in the

rigorous application of scientific method to the study

of the mind and human behavior. Some psychologists

are researchers, developing and testing theories

through observation, experimentation, and analysis.

Others are practitioners, working in schools, on

university campuses, within the judicial system, in

corporations, and in private practice to serve patients.

Based on this broad spectrum of research,

practice, and application, APA and its members are

well-positioned to provide scientific insights

regarding many important social phenomena. Among

these are the causes, consequences, and means of

addressing racial and ethnic discrimination and

prejudice and the impact of racial and ethnic diversity

on college campuses.

Since its founding in 1892, public engagement has

been a key element of APA’s mission. APA’s Bylaws

provide that an object of the Association is “to advance

. . . the application of research findings to the

The parties have consented to the filing of this amicus

brief. No counsel for any party authored this brief in whole or in

part; no such counsel or any party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity, other than amici and their counsel, made a

monetary contribution intended to fund the preparation or

submission of this brief.

promotion of health, education and the public

welfare.”2 As part of that mission, APA has submitted

over 200 briefs as amicus curiae in this Court and

other federal and state courts, including in Grutter v.

Bollinger, 539 U.S. 306 (2003), Fisher v. University of

Texas at Austin, 570 U.S. 297 (2013), and Fisher v.

University of Texas at Austin (Fisher II), 579 U.S. 365

(2016). And courts have frequently cited APA’s

amicus briefs in decisions relating to important public

matters. See, e.g., Moore v. Texas, 137 S. Ct. 1039,

1051 (2017); Hall v. Florida, 572 U.S. 701, 710 (2014).

APA has a rigorous approval process for amicus

briefs, the touchstone of which is an assessment of

whether there is sufficient scientific research, data,

and literature on a question before a court such that

APA can usefully contribute to the court’s

understanding and resolution of that question.

The Massachusetts Psychological Association

(MPA) is the professional association for

psychologists

the

Commonwealth

Massachusetts. The purpose of MPA is to advance

psychology as a science, as a profession, and as a

means of promoting human welfare.

The North Carolina Psychological Association

(NCPA) advocates for psychology as a science, a

profession, and a means of promoting human welfare.

NCPA provides an organized voice for psychology and

promotes high standards for the profession.

See American Psychological Association, Bylaws of the

American Psychological Association. Article I: Objects (2008),

http://www.apa.org/about/governance/bylaws/article-1.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In Grutter v. Bollinger, this Court held that

campus diversity is a compelling government

interest. 539 U.S. 306 (2003). Substantial peerreviewed scientific research supports that conclusion.

And recent studies—conducted since this Court’s

decision in Fisher v. University of Texas at Austin

(Fisher II)—demonstrate that the need for campus

diversity remains compelling today. 579 U.S. 365

(2016).

Psychologists and other social scientists have

studied the impact of student body diversity on the

academic experience for decades. Their conclusions

are clear. An overwhelming body of research has

found that prejudice on college campuses and the

underrepresentation of racial and ethnic minority

groups in student bodies impose significant

educational obstacles for both racial and ethnic

minority and nonminority students. This research

also demonstrates that campus diversity is an

effective response, mitigating these educational

deficiencies and improving the academic experience

for all students. These scientific studies confirm that

the educational benefits that flow from a diverse

student body are not “elusory or amorphous.” Fisher

II, 579 U.S. at 381. They are “real” and “substantial.”

Grutter, 539 U.S. at 330.

Petitioner and its amici argue otherwise. In

support, petitioner’s amici advance one particularly

troubling, discredited theory that cannot withstand

sustained empirical inquiry. That theory claims that

relatively lower graduation rates among minority

students admitted under race-conscious admissions

programs are the result of a divergence between

student ability and academic rigor. Numerous peerreviewed studies have debunked this “academic

mismatch” theory. In fact, universities that consider

race as a factor in admissions narrow retention rate

gaps between students of different racial and ethnic

groups. This is but one example of the educational

benefits interest this Court has identified.

Grutter’s core premise—“the reasoning of the

opinion itself ”—has been put to the test, examined in

the crucible of scientific method and peer review, and

found to be verifiably sound. Knick v. Twp. of Scott,

139 S. Ct. 2162, 2178 (2019). The Court should

reaffirm Grutter and affirm the judgments below.

ARGUMENT

For over four decades, this Court has

acknowledged that the government has a “substantial

interest that legitimately may be served by a properly

devised

admissions

program

involving

the

competitive consideration of race and ethnic origin.”

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 320

(1978). In Grutter v. Bollinger, the Court identified

the interest as “a diverse student body.” 539 U.S. 306,

329-30 (2003). That interest is compelling because

the “educational benefits that flow” from such

diversity are “substantial.” Id. at 330.

Discrimination,

prejudice,

and

underrepresentation of certain racial and ethnic

groups persist on college campuses today. Indeed,

recent studies suggest that discrimination and

prejudice have become more pronounced.

And

scientific research conducted since this Court’s

decision in Fisher II reaffirms that the experience of

discrimination, prejudice, and underrepresentation

negatively impacts racial and ethnic minority

students and inhibits academic success. Studies also

confirm that a diverse student body helps alleviate

those harms and confers benefits on all students—in

the classroom and beyond. The scientific data thus

reaffirm the central holding in Grutter: the interest in

a diverse student body remains compelling.

A. Discrimination,

Prejudice,

And

Underrepresentation Remain Prevalent

On College Campuses

1. Discrimination is a negative act taken against

another due to their membership in a certain group.

Prejudice is an unfavorable attitude a person holds

against another based solely on membership in a

certain group. Discrimination and prejudice—both

explicit (meaning directly endorsed and expressed)

and

implicit

(meaning

automatically

and

unintentionally activated)—remain prevalent on

university campuses today.

Explicit biases may manifest as publicly held

prejudicial beliefs or as openly hostile acts of

discrimination.3

Recent data on hate (or biasmotivated) crimes compiled by the Department of

Education report a substantial increase in the

number of overt discriminatory acts committed on

college campuses.4 Between 2010 and 2019, bias3

See Louis A. Penner et al., Aversive Racism and Medical

Interactions

with

Black

Patients:

Field

Study,

46 J. Experimental Soc. Psychol. 436, 437 (2010); Anthony G.

Greenwald et al., Understanding and Using the Implicit

Association Test: III. Meta-Analysis of Predictive Validity,

97 J. Personality & Soc. Psychol. 17, 18 (2009).

These figures exclude crimes that occur off-campus, even

if committed by students. See National Center for Education

motivated assaults increased by 27%.5 Acts of biasmotivated intimidation increased by 31%.6 These

criminal acts are often directed at people of color. In

2019, more than half of on-campus hate crimes were

motivated by beliefs regarding race or ethnicity.7

Other forms of discrimination are subtle and

unintentional. These non-overt acts can often be the

result of implicit biases—automatic tendencies or

beliefs regarding certain groups learned through

thousands of social interactions over long periods of

time.8 These implicit biases inform one’s treatment of

those exhibiting other social characteristics or

affiliations, including a person’s perceived race,

ethnicity, religion, or gender.

Even those who

outwardly express positive attitudes toward a given

group may hold implicit biases that can cause

prejudice-based and discriminatory behavior, despite

being unintended or irrational.9

A number of recent psychological studies,

published within the last four years and examining

over 80,000 students in the aggregate, have found

that racial and ethnic minority students regularly

experience acts of discrimination in the educational

Statistics, Institute of Education Sciences, U.S. Department of

Educ., Hate Crime Incidents at Postsecondary Institutions,

https://nces.ed.gov/programs/coe/indicator/a22 (last updated

May 2022).

Id.

See Mahzarin Banaji & Anthony Greenwald, Blindspot:

Hidden Biases of Good People (2016).

See, e.g., id. at 4.

setting.10 These findings, grounded in samples from

over 100 universities and colleges across the country,

“underscore[]

the

ubiquity

experienced

discrimination” for students from underrepresented

racial and ethnic groups.11

2. Underrepresentation of certain racial and

ethnic groups also remains a pressing concern on

college campuses.

In 2020, the Bureau of Labor Statistics reported

that 66.2% of the previous year’s high school

graduates enrolled in an institution of higher learning

following graduation.12 But enrollment rates were

not equal among racial and ethnic groups: 89.9% of

Asian students; 66.9% of White students; 63.4% of

Latino students; and only 50.7% of Black students

moved on to postsecondary studies.13

And in States that have banned race-conscious

admissions programs, disparate enrollment rates and

the resulting underrepresentation are even more

dramatic. One recent study, examining enrollment

See Mitchell R. Campbell & Markus Brauer, Is

Discrimination Widespread? Testing Assumptions About Bias on

a University Campus, 150 J. Experimental Psychol.: General

756, 756 (2021); see Courtney Stevens et al., Racial/ethnic

Disparities in US College Students’ Experience: Discrimination

as an Impediment to Academic Performance, 66 J. Am. Coll.

Health 665 (2018)

Stevens et al., 66 J. Am. Coll. Health at 669.

U.S. Bureau of Labor Statistics, Economic News Release,

College Enrollment and Work Activity of High School Graduates,

(Apr. 28, 2020), http://www.bls.gov/news.release/archives/hsgec_

04282020.htm.

The Bureau’s statistics do not report enrollment rates for

other racial and ethnic groups, including Native Americans. See

id.

data from 53 public medical schools in states with and

without bans, found that having a ban reduced

representation of racial and ethnic minorities by 37%.

In states without bans, representation increased by

0.7%.14

Other studies have observed similar

impacts.

B. Discrimination,

Prejudice,

And

Underrepresentation Inflict Academic

Harm

The persistence of discrimination, prejudice, and

underrepresentation in higher education has tangible

educational costs for students. Substantial scientific

research has found that racial and ethnic minority

students are especially susceptible to psychological

influences that can impair academic performance

when studying in environments in which either

explicit or implicit prejudice and discrimination

remain and that lack sufficient diversity. And for

students that are the only representative of a group,

these negative impacts are even more pronounced.

1. Experiencing overt, bias-related violence and

discrimination inflicts the most severe psychological

harm on racial and ethnic minority students and

poses

significant

obstacles

educational

achievement—even when an individual is not the

direct victim. As psychological researchers have

found, discrimination inflicts group harm. When one

Dan P. Ly et al., Affirmative Action Bans and Enrollment

of Students From Underrepresented Racial and Ethnic Groups

in U.S. Public Medical Schools, 175 Annals Internal Med. 873

(2022).

See, e.g., Liliana M. Garces, Understanding the Impact

of Affirmative Action Bans in Different Graduate Fields of Study,

50 Am. Educ. Res. J. 251 (2013).

member of a group is the victim of discrimination,

that discrimination can lead to poorer mental health

outcomes for all members of the targeted group.16

And this is harm that does not impact other nonminority group members within the same

community.17 These mental health strains can cause

stress, anxiety, and depression which, in turn,

significantly impact academic achievement.18

2. Other psychological harms flow from subtle

discrimination and implicit bias in communities

lacking sufficient racial and ethnic minority

representation. One such harm is a feeling of

distinctiveness and unbelonging. Psychologists have

found that a member of a racial or ethnic minority

group is more conscious of her minority identity—and

others’ implicit biases regarding that identity—when

underrepresented.19 These feelings of distinctiveness

often create an internal fear that one will conform to

David S. Curtis et al., Highly Public Anti-Black Violence

Is Associated with Poor Mental Health Days for Black

Americans, 118 Proc. Natl. Acad. Sci. 1 (2021); see also Jacob Bor

et al., Police Killings and Their Spillover Effects on the Mental

Health of Black Americans: a Population-based, Quasiexperimental Study, 392 Lancet 302 (2018).

See Bor, 392 Lancet at 302.

See Janelle T. Billingsley & Noelle M. Hurd,

Discrimination, Mental Health and Academic Performance

Among Underrepresented College Students: The Role of

Extracurricular Activities at Predominantly White Institutions,

22 Soc. Psychol. Educ. 421 (2019).

Michael Johns et al., Stereotype Threat and Executive

Resource Depletion: Examining the Influence of Emotion

Regulation, 137 J. Experimental Psychol.: Gen. 691, 692 (2008);

see Toni Schmader et al., A Metacognitive Perspective on the

Cognitive Deficits Experienced in Intellectually Threatening

Environments, 35 Pers. & Soc. Psychol. Bull. 584, 586 (2009).

others’ implicit biases—that one’s actions will prove

the biases right.20

Psychologists call this

phenomenon “social identity threat.”

Research has consistently shown that social

identity threat negatively impacts educational

outcomes. For example, Black and Latino students

perform worse than their White peers on

standardized tests when those tests are described as

assessing verbal or intellectual ability. When the

same tests are framed as simple exercises in problem

solving, however, their performance is equivalent to

that of White peers.21 Likewise, when Christian

students are told that there is a supposed

incompatibility between science and religion, they

underperform their non-Christian peers on scientific

reasoning tasks.22 The stress of perceiving others’

biases—however unfounded or irrational they might

be—inhibits performance.23

Many psychologists and other social scientists

have examined how and why social identity threat

See, e.g., Harriet E.S. Rosenthal & Richard J. Crisp,

Reducing Stereotype Threat by Blurring Intergroup Boundaries,

32 Pers. & Soc. Psychol. Bull. 501, 502 (2006).

See Toni Schmader et al., An Integrated Process Model of

Stereotype Threat Effects on Performance, 115 Psychol. Rev. 336,

336-37 (2008); see also Patricia M. Gonzales et al., The Effects of

Stereotype Threat and Double-Minority Status on the Test

Performance of Latino Women, 28 Pers. & Soc. Psychol. Bull.

659, 665-66 (2002).

Kimberly Rios et al., Negative Stereotypes Cause

Christians to Underperform in and Disidentify with Science, 6

Soc. Psychol. & Pers. Sci. 959 (2015).

586.

Toni Schmader et al., 35 Pers. & Soc. Psychol. Bull. at

disrupts cognitive function.24 Their research has

found that scenarios activating negative social

identity biases cause individuals to try to combat

those biases.25 This natural fight-or-flight instinct

generates increased mental effort—heightening

stress, increasing self-monitoring of how one’s

behavior reflects others’ biases, and activating efforts

to push negative social identity thoughts and

anxieties from the mind.26

These coping mechanisms are distracting; they

interfere with mental performance; and they cause a

deficit of cognitive resources with which to complete

academic tasks.27 The resulting cognitive load places

racial and ethnic minority students at a particular

disadvantage compared to otherwise similarly

situated students. And it decreases confidence,

increases anxiety, and undermines an individual’s

performance expectations.28

3. These negative consequences of social identity

threat are quite concerning in their own right. But

they are often compounded when someone is the only

person of a social identity within a group. Such “solo

See, e.g., Jean-Claude Croizet et al., Stereotype Threat

Undermines Intellectual Performance by Triggering a Disruptive

Mental Load, 30 Pers. & Soc. Psychol. Bull. 721, 728-29 (2004).

See Schmader et al., 115 Psychol. Rev. at 337; Toni

Schmader & Michael Johns, Converging Evidence That

Stereotype Threat Reduces Working Memory Capacity, 85 J. Pers.

& Soc. Psychol. 440, 450-51 (2003).

Schmader et al., 115 Psychol. Rev. at 337-38.

Id.

See Mara Cadinu et al., Stereotype Threat: The Effect of

Expectancy on Performance, 33 Euro. J. Soc. Psychol. 267, 269,

283 (2003).

status” causes extreme isolation that increases the

likelihood that underrepresented students will be

viewed as “tokens.”29

Tokenism heightens the undue attention paid to

racial and ethnic minority students, reducing

perceptions of individuality and inhibiting academic

achievement.30 For example, psychologists have

found that Blacks in otherwise all-White groups and

women in otherwise all-male groups underperform as

compared to when they are in groups with increased

representation of their race or gender, respectively.31

This is because “solo status” can cause the person to

construe herself in terms of her racial or ethnic group

and to feel pressure to act as a representative of that

racial or ethnic group.32

4. In sum, the stresses of discrimination,

prejudice, and underrepresentation, and the

compounding impact of isolation, have profound

academic consequences.33 In a recent longitudinal

Jeffrey F. Milem et al., Making Diversity Work on

Campus: A Research-Based Perspective, at 6 (2005),

https://web.stanford.edu/group/siher/AntonioMilemChang_mak

ingdiversitywork.pdf.

See id.

See id.; see also Denise Sekaquaptewa & Mischa

Thompson, Solo Status, Stereotype Threat, and Performance

Expectancies: Their Effects on Women’s Performance,

39 J. Experimental Soc. Psychol. 68, 68-69 (2003).

See Denise Sekaquaptewa et al., Solo Status and SelfConstrual: Being Distinctive Influences Racial Self-Construal

and Performance Apprehension in African American Women, 13

Cultural Diversity & Ethnic Minority Psychol. 321, 326 (2007).

See Samuel D. Museus et al., Modeling Racial

Differences in the Effects of Racial Representation on 2-Year

College Student Success, 13 J. Coll. Student Retention 549, 550

study of nearly 2,000 Latino and Black students

across 27 colleges and universities, researchers found

that experiences of discrimination were predictive of

poor physical health, increased depression, poorer

academic outcomes, and lower graduation rates.34

Indeed, the effects of social identity threat are so

pronounced that some psychological studies have

found that the added cognitive load and related stress

can lead students to remove themselves from the

classroom or campus altogether.35 And researchers

have found that students experiencing intense,

tokenizing isolation have even worse academic

outcomes.

Tokenism can cause students to

“experience relatively greater uncertainty about their

belonging in school.”36 This uncertainty can be

detrimental to “well-being and performance,”37 and it

(2012); Sekaquaptewa et al., 13 Cultural Diversity & Ethnic

Minority Psychol. at 321.

See Tiffany N. Brannon & Andy Lin, “Pride and

Prejudice” Pathways to Belonging: Implications for Inclusive

Diversity Practices Within Mainstream Institutions, 76 Am.

Psychol. 488 (2020).

Rosenthal & Crisp, 32 Pers. & Soc. Psychol. Bull. at 502;

see Mary C. Murphy et al., Signaling Threat: How Situational

Cues Affect Women in Math, Science, and Engineering Settings,

18 Psychol. Sci. 879, 883-84 (2007).

Gregory M. Walton & Geoffrey L. Cohen, A Brief Socialbelonging Intervention Improves Academic and Health Outcomes

of Minority Students, 331 Sci. 1447, 1448 (2011).

Id.; see Elizabeth Page-Gould et al., Understanding the

Impact of Cross-group Friendship on Interactions with Novel

Outgroup Members, 98 J. Pers. & Soc. Psychol. 775, 788-89

(2010).

can ultimately discourage students from remaining in

an academic setting.38

C. Student Diversity Benefits All Students

And The Nation

As this Court held in Grutter, and reaffirmed in

Fisher II, campus diversity is a compelling

government interest because it reduces the harm that

discrimination, prejudice, and underrepresentation

inflict—improving the educational experience for all

students. Campus diversity fosters “cross-racial

understanding”

and

enriches

the

academic

enterprise, preparing students to lead lives as

contributing citizens and strengthening the Nation.

Grutter, 539 U.S. at 330.

1. To achieve the benefits that flow from campus

diversity there must be sufficient diversity on

campus. This Court acknowledged in Fisher II that

“[i]ncreasing

minority

enrollment

may

instrumental to [achieving the interest in]

educational benefits” set forth in Grutter. 579 U.S. at

381. Significant psychological research confirms as

much: sufficient representation of racial and ethnic

minority groups is necessary for campus communities

to enjoy the educational benefits that flow from a

diverse student body.

The rationale is simple. For crucial educational

encounters to occur—and to avoid the negative

psychological and academic impacts of isolation, “solo

status,” and underrepresentation—a sufficiently

Angela M. Locks et al., Extending Notions of Campus

Climate and Diversity to Students’ Transition to College, 31 Rev.

Higher Educ. 257, 260 (2008).

diverse body of students must be present.39 There is

no other way to achieve the educational benefits that

flow from diverse student bodies.40 Social science

research firmly establishes the “relationship between

numbers and achieving the benefits to be derived

from a diverse student body.” Bakke, 438 U.S. at 323.

But the analysis cannot, as this Court has

observed, “be reduced to pure numbers.” Fisher II,

579 U.S. at 381. The inquiry is more nuanced. The

optimal composition of a diverse student body

depends on numerous considerations and varies by

institution.41

Colleges and universities need

flexibility to tailor their student bodies to secure a

sufficient representation of racial and ethnic groups

in order to achieve the educational benefits that flow

from diversity.

2. As this Court has acknowledged, appropriately

tailored campus diversity can reduce the worst

psychological

and

academic

impacts

discrimination, prejudice, and underrepresentation

by “break[ing] down” biases and fostering

environments in which all students can thrive.

Grutter, 539 U.S. at 330. Rigorous scientific study

confirms those conclusions are still sound. And

See Mitchell J. Chang et al., Cross-Racial Interaction

Among Undergraduates: Some Consequences, Causes, and

Patterns, 45 Res. in Higher Educ. 529, 544-545 (2004).

See, e.g., Nicholas A. Bowman, Promoting Participation

in a Diverse Democracy: A Meta-Analysis of College Diversity

Experiences and Civic Engagement, 81 Rev. Educ. Res. 29, 49

(2011) (noting that meaningful interaction “cannot be replaced

by teaching about diversity abstractly in courses or workshops”).

See, e.g., Dawn Richards Elliott et al., Rethinking Racial

Diversity Benchmarks in Higher Education, 15 J. Diversity in

Higher Educ. 1 (forthcoming 2022).

amici’s arguments to the contrary—which rest on the

academic

mismatch

theory—are

empirically

unsound.

a. Scientific

research

has

consistently

demonstrated that campus diversity relieves many of

the negative educational impacts of discrimination

and prejudice. As the influence of discrimination and

prejudice is reduced, psychological phenomena

inhibiting academic success for minority students

become less dominant.42 And as such phenomena

subside, all students are able to engage uninhibited

in the academic enterprise.43

Diversity in the educational community is

necessary to secure these benefits. Psychological

science has determined that exposure to diversity can

reduce implicit bias, along with the discriminatory

See Nicholas A. Bowman et al., Institutional Racial

Representation and Equity Gaps in College Graduation,

93 J. Higher Educ. 399 (2022); Ivuoma N. Onyeador et al., The

Value of Interracial Contact for Reducing Anti-Black Bias

Among Non-Black Physicians: A Cognitive Habits and Growth

Evaluation (CHANGE) Study Report, 31 Psychol. Sci. 18 (2020);

Thomas F. Pettigrew & Linda R. Tropp, A Meta-Analytic Test of

Intergroup Contact Theory, 90 J. Pers. & Soc. Psychol. 751, 76667 (2006).

See Rebecca Carey et al., Is Diversity Enough? CrossRace and Cross-Class Interactions in College Occur Less Often

Than Expected, but Benefit Members of Lower-Status Groups

When They Occur, 123 J. Pers. & Soc. Psychol. (forthcoming

2022); Maryam Hussain et al., Discrimination, Diversity, and

Sense of Belonging: Experiences of Students of Color, 14 J.

Diversity in Higher Educ. 63 (2021); see also Juan C. Garibay et

al., Racially Inclusive Climates Within Degree Programs and

Increasing Student of Color Enrollment: An Examination of

Environmental/Sustainability Programs, 11 J. Diversity in

Higher Educ. 201 (2018).

behavior and cognitive impairment it causes.44

Although “[p]eople are remarkably adept at dividing

up the world into us and them,”45 individuals are not

rigidly predisposed to draw these lines based on race.

The lines are malleable: “by changing the basis of

categorization from race to an alternative, inclusive

dimension, one can alter who ‘we’ is and who ‘they’

are,” in a way that undermines the mental processes

that engender bias.46

Psychological studies have demonstrated the

strength of such ingroup affiliation by measuring

students’ abilities to recognize the faces of peers.47

When the faces were grouped simply by race,

participants had superior recall for faces of those in

their own racial group.48 But when the faces were

grouped by university, students had superior recall

for faces of those in their university group and race

had no effect.49 Expanding the ingroup to include

members of different races thus diminished

Jay J. Van Bavel & William A. Cunningham, SelfCategorization with a Novel Mixed-Race Group Moderates

Automatic Social and Racial Biases, 35 Pers. & Soc. Psychol.

Bull. 321, 322 (2009).

Id.

Adam R. Pearson et al., The Nature of Contemporary

Prejudice: Insights from Aversive Racism, 3 Soc. & Pers. Psychol.

Compass 3, 14 (2009).

Eric Hehman et al., Where the Division Lies: Common

Ingroup Identity Moderates the Cross-Race Facial-Recognition

Effect, 46 J. Experimental Soc. Psychol. 445, 447 (2010).

Id.; see also Daniel B. Wright et al., Inter-racial Contact

and the Own-race Bias for Face Recognition in South Africa and

England, 17 Applied Cognitive Psychol. 365, 371 (2003).

Hehman et al., 46 J. Experimental Soc. Psychol. at 447.

automatic social categorization based on race.50

Other studies have reached similar conclusions,

finding that a greater sense of common identity in the

university environment related to greater perceived

similarities and prosocial orientations.51

Forming personal connections with members of an

outgroup may reduce implicit bias even more.52 A

recent study conducted at the Air Force Academy

found that White cadets who were randomly assigned

to a sufficiently diverse squadron in their first year

were more likely to choose a racial or ethnic minority

colleague as a roommate in their second year.53 Other

studies show that individuals who have dated a

member of another race or whose children have

married a member of another race may replace

negative implicit bias with favorable implicit

attitudes.54 And prolonged contact between members

See id. at 448; see also Van Bavel & Cunningham, 35

Pers. & Soc. Psychol. Bull. at 333.

See Edward P. Lemay, Jr. et al., Common Ingroup

Identity, Perceived Similarity, and Communal Interracial

Relationships, 47 Pers. & Soc. Psychol. Bull. 985 (2021); Wendy

J. Quinton, Unwelcome on Campus? Predictors of Prejudice

Against International Students, 12 J. of Diversity in Higher

Educ. 156 (2019).

Andreas Olsson et al., The Role of Social Groups in the

Persistence of Learned Fear, 309 Sci. 785, 785 (2005).

See Scott Carrell, et al., The Impact of College Diversity

on Behavior Toward Minorities, 11 Am. Econ. J.: Econ. Pol’y 159

(2019).

See Anthony G. Greenwald & Linda Hamilton Kreiger,

Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945, 96465 (2006).

of different racial groups frequently reduces implicit

negative attitudes.55

b. A 2021 study indicates that diversity is an

effective antidote to societal discrimination and

prejudice.56 This study is one of the most important

empirical psychological field assessments of

intergroup behavior on university campuses

undertaken since the 1980s. And it suggests that

discrimination—while still prevalent—can manifest

differently on diverse campuses than in general

society.

Most social science research has found that

discrimination in general society follows a “dispersed

discrimination” paradigm. What that means is a

large proportion of individuals, often informed by

implicit biases, engage in small acts of discriminatory

behavior at least occasionally.57 This dispersal of

prejudice can make its harm particularly pronounced

while also making the prejudice more challenging to

address—requiring broad, intensive interventions.

This recent study found that bias on a diverse

campus does not fit within the dispersed

discrimination paradigm. Only about 20% of student

colleagues

were

responsible

for

acts

discrimination. Such a finding maps onto a distinct

phenomenon psychologists refer to as “concentrated

See Christopher L. Aberson & Sarah C. Haag, Contact,

Perspective Taking, and Anxiety as Predictors of Stereotype

Endorsement, Explicit Attitudes, and Implicit Attitudes,

10 Group Processes & Intergroup Relations 179, 195 (2007).

See Campbell, 150 J. Experimental Psychol: General at

759.

See id. at 757.

Id. at 756.

discrimination.”59

This alternative paradigm

suggests that, even in communities with rising

egalitarian attitudes, the biases of a subsection of the

community can continue to exact harm on members.

But because this bias is concentrated in a small group,

it can be addressed with discrete, highly tailored

interventions that can prevent discrimination with

greater success. For example, research demonstrates

that more frequent and positive contact between

members of different groups not only reduces

prejudice and discrimination generally,60 but is

particularly effective among people who hold strong

biases.61

These findings suggest that campus diversity

reduces the extent of prejudice and makes it easier for

university communities to mitigate the impact of the

prejudice that remains. And they confirm that

Grutter works: social attitudes are indeed changed by

the campus environment, the composition of the

student body, the university’s pedagogical priorities,

and the educational experience.

c. Opponents of race-conscious admissions

policies (including several amici here)62 have argued

the opposite. That is, they continue to advance the

theory that minority students are harmed by race59

Id. at 756-758.

Elizabeth Levy Paluck et al., Prejudice Reduction:

Progress and Challenges, 72 Ann. Rev. Psychol. 533 (2021).

Rhiannon N. Turner et al., The Role of Individual

Differences in Understanding and Enhancing Intergroup

Contact, 14 Soc. & Pers. Psychol. Compass 1 (2020).

See, e.g., Br. of National Association of Scholars in Supp.

of Pet’r at 7-10; Br. of Pacific Legal Foundation et al. in Supp. of

Pet’r at 22.

conscious admissions due to “a mismatch between

their academic preparation . . . and the scholastic

requirements of the schools that admitted them by

taking race into account.”63 Empirical studies have

discredited this “academic mismatch” hypothesis.

Over two decades ago, a pair of seminal studies

demonstrated that graduation rates of all students,

including racial and ethnic minority students, rise as

the selectivity of the institution increases.64 More

recently, research has reaffirmed that “the mismatch

hypothesis . . . is empirically groundless for black and

Hispanic (as well as for white and Asian) students.”65

Another study, which examined nationwide data,

found that “[i]n no case did . . . having an SAT score

below the institutional average undermine[] the

performance or well being of individual minority

students.

If anything minority students who

benefited from affirmative action earned higher

Sigal Alon & Marta Tienda, Assessing the “Mismatch”

Hypothesis: Differences in College Graduation Rates by

Institutional Selectivity, 78 Sociol. Educ. 294, 295 (2005); see

Terrance J. Pell, Racial Preferences and Formal Equality,

34 J. Soc. Phil. 309, 310 (2003).

See William G. Bowen & Derek Bok, The Shape of the

River: Long-Term Consequences of Considering Race in College

and University Admissions 53, 59 (1998); see also Thomas J.

Kane, Misconceptions in the Debate Over Affirmative Action in

College Admissions, in Chilling Admissions: The Affirmative

Action Crisis and the Search for Alternatives 17, 17-18 (Gary

Orfield & Edward Miller eds., 1998).

Alon & Tienda, 78 Sociol. Educ. at 309.

grades and left school at lower rates than others

. . . .”66

Studies supporting the academic mismatch

hypothesis are fundamentally flawed because they

assume a direct relationship between a student’s

entering credentials and resulting academic success.

This proposition finds little support in scholarly

research.67 The hypothesis also ignores alternative

explanations for racial and ethnic minority

underperformance in certain academic settings.

Phenomena such as social identity threat may explain

not only racial and ethnic minority students’ lower

retention rates in college and graduate school

generally but also in specific academic majors—

especially in science, technology, engineering, and

medical fields.68 But, as discussed above, raceconscious admissions programs redress these

negative psychological and academic effects; they do

not cause them.69

When

examined

without

these

flawed

assumptions, the evidence indicates that race66

Mary J. Fischer & Douglas S. Massey, The Effects of

Affirmative Action in Higher Education, 36 Soc. Sci. Res. 531,

544 (2007).

See Ian Ayres & Richard Brooks, Does Affirmative Action

Reduce the Number of Black Lawyers?, 57 Stan. L. Rev. 1807,

1813 (2005).

See Melissa Williams, et al., The Face of STEM: Racial

Phenotypic Stereotypicality Predicts STEM Persistence by—and

Ability Attributions About—Students of Color, 116 J. Personality

& Soc. Psychol. 416 (2019); Mitchell J. Chang et al., Considering

the Impact of Racial Stigmas and Science Identity: Persistence

Among Biomedical and Behavioral Science Aspirants,

82 J. Higher Educ. 564, 586 (2011).

Ayres & Brooks, 57 Stan. L. Rev. at 1838-39.

conscious admissions programs narrow retention rate

gaps between different student groups.70 Research

also demonstrates that racial and ethnic minority

students who attend selective colleges show an

increase in “the completion of advanced degrees,

earnings, and overall satisfaction with college

experiences.”71

3. The educational benefits of sufficient campus

diversity inure to the benefit of all students.

Scientific research has found that exposure to

diversity enhances critical thinking and promotes

deeper information processing, the objective review of

information, and problem-solving skills.72 Campus

diversity also improves student satisfaction and

motivation,73 general knowledge,74 intellectual self-

Alon & Tienda, 78 Sociol. Educ. at 309.

Id. at 296.

See, e.g., Nida Denson & Shirley Zhang, The Impact of

Student Experiences with Diversity on Developing Graduate

Attributes, 35 Studies Higher Educ. 529, 540 (2010).

Birenee A. Nagda et al., Learning About Difference,

Learning with Others, Learning to Transgress, 60 J. Soc. Issues

195, 208 (2004).

Nida Denson & Mitchell J. Chang, Racial Diversity

Matters: The Impact of Diversity-Related Student Engagement

and Institutional Context, 46 Am. Educ. Res. J. 322, 325 (2009)

see also Jiali Luo & David Jamieson-Drake, A Retrospective

Assessment of the Educational Benefits of Interaction Across

Racial Boundaries, 50 J. Coll. Student Dev. 67, 80-81 (2009).

confidence,75 and productive and cooperative

communication and collaboration skills.76

These academic benefits flow largely from

interaction with the “broader collection of thoughts,

ideas, and opinions held by” the range of individuals

present in diverse student bodies.77 This exposure to

differing perspectives creates an “atmosphere of

‘speculation, experiment and creation,’ [which is]

essential to the quality of higher education.” Bakke,

438 U.S. at 312. As social science research shows,

“the mere inclusion of different perspectives, and

especially divergent ones, in any course of discussion

leads to the kind of learning outcomes” universities

seek.78 And while informal interactions produce

important gains, “the formal interactions that take

place in a course discussion offer the most potential

for educators to extract the benefits of structural

diversity on college campuses.”79 Scores of studies

have continued to find that such educational

Thomas F. Nelson Laird, College Students’ Experiences

with Diversity and Their Effects on Academic Self-Confidence,

Social Agency, and Disposition Toward Critical Thinking, 46

Res. Higher Educ. 365, 382-83 (2005); see Anthony L. Antonio,

The Influence of Friendship Groups on Intellectual SelfConfidence and Educational Aspirations in College, 75 J. Higher

Educ. 446, 455 (2004).

See Rose Meleady, et al., Evidence of a Dynamic

Association Between Intergroup Contact and Intercultural

Competence, 24 Group Processes & Intergroup Rel. 1427 (2020).

Milem,

https://web.stanford.edu/group/siher/Antonio

MilemChang_makingdiversitywork.pdf, at 7.

Richard Pitt & Josh Packard, Activating Diversity: The

Impact of Student Race on Contributions to Course Discussions,

53 Sociol. Q. 295, 298 (2012).

Id. at 315.

experiences encourage the development of “crossracial understanding.” Grutter, 539 U.S. at 330.80

These formal and informal interactions directly

impact intellectual growth and educational outcomes.

Comparing

homogeneous

and

heterogeneous

discussion groups, one study showed that the

presence of racial and ethnic minorities stimulates an

increase in the complexity with which students—

especially nonminority students—approach a given

issue.81 Members of homogeneous groups in this

study exhibited no such cognitive stimulation nor

complexity of thought.82 “[W]hen a student is exposed

to thoughts and ideas different from his or her own, it

tends

produce

cognitive

disequilibrium,

dissonance, or incongruity.”

Resetting cognitive

equilibrium requires complex processing and

gathering of data, as well as consideration of revised

viewpoints.84 This process often causes students to

develop a preference for “effortful” thinking and to

seek nuanced explanations for human behavior.85

See Gary Pike et al., Relationships Among Structural

Diversity, Informal Peer Interactions and Perceptions of the

Campus Environment, 29 Rev. Higher Educ. 425, 435 (2006).

Anthony L. Antonio et al., Effects of Racial Diversity on

Complex Thinking in College Students, 15 Psychol. Sci. 507, 509

(2004).

See id.; see also Samuel R. Sommers et al., Cognitive

Effects of Racial Diversity: White Individuals’ Information

Processing in Heterogeneous Groups, 44 J. Experimental Soc.

Psychol. 1129, 1134-35 (2008).

Chang et al., 45 Res. in Higher Educ. at 545.

See id.

Nicholas A. Bowman, College Diversity Experiences and

Cognitive Development: A Meta-Analysis, 80 Rev. Educ. Res. 4, 6

(2010); see Sylvia Hurtado, The Next Generation of Diversity and

4. The educational benefits that flow from

campus diversity also have lasting impacts that

benefit students and society long after graduation.

Sufficiently

diverse

campuses

promote

the

development of a student’s cultural competence and

“pluralistic orientation: the ability to see multiple

perspectives; the ability to work cooperatively with

diverse people; the ability to discuss and negotiate

controversial issues; openness to having one’s views

challenged; and tolerance of others with different

beliefs.”86 These skills are essential for citizens to

engage productively in a flourishing democracy. They

are also necessary, as this Court noted in Grutter, for

businesses to remain competitive “in today’s

increasingly global marketplace.” 539 U.S. at 330.

Social scientists have observed societal benefits in

other areas too—underscoring the widespread,

positive impact of diverse educational experiences.

Doctors who have studied in diverse medical schools

and work on diverse teams provide better medical

care, especially for racial and ethnic minority

patients.87 Police officers who have trained and

served in diverse communities are less likely to use

Intergroup Relations Research, 61 J. Soc. Issues 595, 598-599

(2005).

Mark E. Engberg, Educating the Workforce for the 21st

Century: A Cross-Disciplinary Analysis of the Impact of the

Undergraduate Experience on Students’ Development of a

Pluralistic Orientation, 48 Res. Higher Educ. 283, 285 (2007).

See Onyeador, 31 Psychol. Sci. at 18; L.E. Gomez, et al.,

Diversity Improves Performance and Outcomes, 111 J. Natl. Med.

Assoc. 383 (2019).

unnecessary or excessive force.88 And members of the

armed forces who have trained in diverse teams are

more likely to build bonds with racial and ethnic

minority colleagues—directly impacting national

security interests.89

That is, the educational benefits that flow from

diverse campuses are by no means limited to the

lecture hall or dorm room. They continue to enrich

our communities, enliven our constitutional values,

and strengthen the Nation.

See Melody S. Sadler, et al., The World Is Not Black and

White: Racial Bias in the Decision to Shoot in a Multiethnic

Context, 68 J. Soc. Sci. Issues 286 (2012).

See, e.g., Carrell, 11 Am. Econ. J.: Econ. Pol’y at 159.

CONCLUSION

For the foregoing reasons, the Court should

reaffirm Grutter and affirm the judgments below.

Respectfully submitted,

DEANNE M. OTTAVIANO

General Counsel

NATHALIE GILFOYLE

AMERICAN PSYCHOLOGICAL

ASSOCIATION

750 First Street, NE

Washington, DC 20002

MELISSA ARBUS SHERRY

Counsel of Record

PETER A. PRINDIVILLE*

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Washington, DC 20004

Suite 1000

(202) 637-2200

melissa.sherry@lw.com

*Admitted to practice in

Illinois only. All work

supervised by a member of

the D.C. Bar.

Counsel for Amici Curiae

August 1, 2022

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