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 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 OF AMICI CURIAE AMERICAN G.I. FORUM,

ET AL. SUPPORTING RESPONDENTS

ELIZABETH A. RITVO*

LOURDES M. ROSADO

*Counsel of Record

President & General Counsel

JOSHUA P. DUNN

FRANCISCA FAJANA

LUIS A. VARGAS RIVERA

LATINOJUSTICE PRLDEF

BROWN RUDNICK LLP

475 Riverside Drive

One Financial Center

Suite 1901

Boston, MA 02111

New York, NY 10115

(617) 856-8200

eritvo@brownrudnick.com

August 1, 2022

— Additional Amici Listed on the Inside Cover —

BATEMAN & SLADE, INC.

STONEHAM, MASSACHUSETTS

ASPIRA Association

ASPIRA of New York

Hispanic Association of Colleges And Universities

Hispanic Federation, Inc.

Hispanic National Bar Association

LatinoJustice PRLDEF

League of United Latin American Citizens

Massachusetts Advocates for Children

MANA, A National Latina Organization

Massachusetts Advocates for Children

Massachusetts Law Reform Institute

National Association of Latino Elected and

Appointed Officials Educational Fund

National Hispanic Caucus of State Legislators

National Hispanic Medical Association

National Latinx Psychological Association

New York Communities for Change

Parents Leading for Educational Equity

SER Jobs for Progress National, Inc.

United States Hispanic Leadership Institute, Inc.

TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT.....................................9

ARGUMENT .............................................................10

II.

THE EQUAL PROTECTION

CLAUSE DOES NOT REQUIRE

COLORBLINDNESS. ............................10

The History and Purposes of

the Fourteenth Amendment

Do Not Support Petitioner’s

Argument that

Colorblindness is

Constitutionally Required. .............10

Under Court Precedent,

the Equal Protection

Clause Does Not Require

Colorblindness. ..........................13

EDUCATIONAL DIVERSITY,

AND OBTAINING ITS

BENEFITS, REMAIN

COMPELLING INTERESTS. .............19

III.

This Court has Long

Recognized the

Substantial Educational

Benefits of Student Body

Diversity. ...................................20

Higher Income, Increased

Leadership Opportunity,

and Higher Rates of Civic

Engagement All Flow

From Educational

Diversity. ...................................21

MANDATORY

COLORBLINDNESS WILL

MASK EXISTING RACIAL

DISPARITIES, THWARTING

THE PROMISE OF EQUAL

PROTECTION. ....................................25

Racial Disparities Exist in

Multiple Areas and Would

Worsen with

Colorblindness. ..........................25

Schools Should Not Be

Forced to Ignore Existing

Racial Disparities, As

Such Disregard Will

Ensure That Those

Disparities Persist. ...................30

CONCLUSION ..........................................................34

iii

TABLE OF AUTHORITIES

CASES:

Brown v. Board of Ed. of Topeka,

347 U.S. 483 (1954) ............................ 13-14, 25

Dobbs v. Jackson Women’s Health Org.,

2022 WL 2276808 (U.S. June 24, 2022) ........32

Fisher v. University of Texas at Austin,

579 U.S. 365 (2016) ................................ passim

Fisher v. University of Texas at Austin,

570 U.S. 297 (2013) ....................................9, 18

Grutter v. Bollinger,

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

Hernandez v. Texas,

347 U.S. 475 (1954) ..................................14, 15

Keyes v. School Dist. No.,

413 U.S. 189 (1973) ........................................15

Keyishian v. Board of Regents,

385 U.S. 589 (1967) ........................................17

Lawrence v. Texas,

539 U.S. 558 (2003) ........................................32

Obergefell v. Hodges,

576 U.S. 644 (2015) ..................................31, 32

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

Dist. No., 551 U.S. 701 (2007) ........................30

Plessy v. Ferguson,

163 U.S. 537 (1896) ........................................14

Plyler v. Doe,

457 U.S. 202 (1982) ........................................15

Regents of Univ. of California v. Bakke,

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

Schuette v. Coalition to Def. Affirmative Action,

572 U.S. 291 (2014) ........................................26

Slaughterhouse Cases,

83 U.S. 36 (1872) ......................................11, 12

Strauder v. West Virginia,

100 U.S. 303 (1879) ........................................12

Tigner v. Texas,

310 U.S. 141 (1940) ........................................16

STATUTES:

U.S. Const., amend. XIV .................... 10, 11, 12 16, 17

42 USC § 300u-6(g)(2) ...............................................13

OTHER AUTHORITIES:

Neil Bhutta et al., Disparities in Wealth by

Race and Ethnicity in the 2019 Survey

of Consumer Finances, Board of

Governors of the Federal Reserve

System (Sep. 28, 2020) ...................................30

Boddie, The Indignities of Color Blindness, 64

UCLA L. Rev. Discourse 64 (2016) ................32

Christopher A. Bracey, Dignity in Race

Jurisprudence, 7 U. PA. J. CONST. L.

669 (2005) .......................................................32

Dr. Margaret Cahalan, Widening

Participation in Higher Education in

the United States of America 6, Edge

Hill University (Oct. 2013) ....................... 25-26

David Cooper, Workers of color are far more

likely to be paid poverty-level wages

than white workers, Economic Policy

Institute (June 21, 2018) ................................27

De Brey, et al., Status and Trends in the

Education of Racial and Ethnic Groups

2018, National Center For Education

Statistics .........................................................26

The White House, Winning the Future:

Improving Education for the Latino

Community, Department of Education

(Sep. 2011) ......................................................28

William C. Dudley, Household Borrowing,

Student Debt Trends and

Homeownership, Press Briefing from

the Federal Reserve Bank of New York

(Apr. 3, 2017) ..................................................29

Excelencia in Education, Latino College

Completion: United States .............................27

Kelly Field, More Hispanics are going to

college and graduating, but disparity

persists, PBS, (May 14, 2018) ........................26

Stephanie A. Fryberg and Nicole M. Stephens,

When the World is Colorblind,

American Indians Are Invisible: A

Diversity Science Approach, Psychology

Press (June 6, 2010) .......................................32

Eric R. Hansen, Andrew Tyner, Educational

Attainment and Social Norms of Voting,

4-5, Political Behavior (Oct. 2019) .................24

Harvard J.A. 916, Testimony of Itzel Libertad

Vasquez-Rodriguez .........................................20

Harvard J.A. 942, Testimony of Cecilia Nunez .......32

Historical Census of Housing Tables:

Homeownership by Race and Hispanic

Origin, UNITED STATES CENSUS (last

visited June 22, 2022) ....................................29

vii

Martin Luther King Jr., Where do We Go

From Here?, Annual Report Delivered

at the 11th Convention of the Southern

Christian Leadership Conference (Aug.

16, 1967)..........................................................31

Jens Manuel Krogstad & Mark Hugo Lopez,

Latino voters’ interest in presidential

race is mixed, and about half are

‘extremely motivated’ to vote, Pew

Research Center (October 26, 2020) ..............24

Hugo Lopez et al., Who is Hispanic?, Pew

Research (Sep. 23, 2021) ................................13

Denise Lu, Faces of Power: 80% Are White,

Even as U.S. Becomes More Diverse,

The New York Times (September 9,

2020)................................................................23

Emily Manis, New research provides insight

into why our education says way more

about our politics than it used to,

PsyPost (May 16, 2022) ..................................24

Kyle K. Moore, State Unemployment by race

and ethnicity, Economic Policy Institute

(May 2022) ......................................................27

The Benefits of Homeownership, National

Association of Home Builders Housing

Policy Department ..........................................29

OECD, Fostering Diversity in the Public

Service, (2009) ................................................23

viii

Claude F. Oubre, Forty Acres and a Mule: The

Freedmen’s Bureau and Black Land

Ownership 20-21, Louisiana State

University Press (1978) ..................................11

Thomas Peele and Daniel J. Willis, Dropping

affirmative action had huge impact on

California’s public universities,

EdSource (Oct. 29, 2020) ................................26

Victoria C. Plaut, Diversity Science: Why and

How Difference Makes a Difference, 21

PSYCH. INQUIRY 77 (2010) .........................31

Adrianna Rodriguez, Latinos are fastest

growing population in U.S. military, but

higher ranks remain out of reach, USA

TODAY (May 23, 2020) ....................................22

Amy Stahl, 3 Benefits Of Diversity In The

Workplace, Forbes (December 17, 2021) .......21

Elka Torpey, Education pays, 2020, Career

Outlook (June 2021) .......................................30

U.S. Bureau of Labor Statistics (October 2019) .......28

United States Senate, Freedmen’s Bureau

Acts of 1865 and 1866, senate.gov .................11

Washington State University Carson College

of Business, 10 Benefits of Diversity in

the Workplace (January 14, 2021) .................21

Ryan Zamarripa, Closing Latino Labor

Market Gap Requires Targeted Policies

to End Discrimination, Center for

American Progress (Oct. 21, 2020) ................28

INTEREST OF AMICI CURIAE1

Amici are national and local organizations and

associations whose missions include serving the

educational interests of the Latino community. Amici

believe that preserving race-conscious admissions

policies in higher education is critical to the

advancement of Latinos—the nation’s fastest growing

and largest minority community—and, thus, critical

to the future of our nation as a whole. Accordingly,

all have an interest in these proceedings, and all urge

affirmance of the decisions below. Amici are the

following organizations and associations:

The American G.I. Forum (AGIF).

AGIF is a

congressionally chartered Hispanic veterans and civil

rights organization. Its motto is “Education is Our

Freedom and Freedom should be Everybody’s

Business.”

AGIF currently operates chapters

throughout the United States, with a focus on

veterans’ issues, education, and civil rights. AGIF’s

mission has expanded into non-veterans’ issues such

as voting rights, jury selection, and educational

desegregation. One of AGIF’s newer initiatives is the

principios program, which offers financial incentives

to elementary school students to stay in school. To

help these students transition to and thrive in college,

AGIF supports racial and ethnic diversity on college

campuses.

No counsel for any party has authored this brief in

whole or in part, and no person other than amici, their members,

or their counsel have made any monetary contribution intended

to fund the preparation or submission of this brief. The parties’

letters consenting to the filing of amicus curiae briefs have been

filed with the Clerk’s office.

ASPIRA Association (ASPIRA). ASPIRA is a national

organization dedicated to the education and

leadership development of Latino youth. Founded in

1961, its mission is to promote the socioeconomic

development of the Latino community through

advocacy,

education

and

youth

leadership

development. ASPIRA has Associate offices in five

states (DE, IL, NJ, NY, PA) and Puerto Rico, as well

as formal partnerships with over 75 regional and local

organizations across the country. ASPIRA serves

over 45,000 students each year in after-school

academic enrichment, tutoring, mentoring, career

and college counseling, SAT/ACT Prep, and

leadership development programs.

ASPIRA of New York (ASPIRA of NY). Founded in

1961, ASPIRA of NY is dedicated to fostering the

social advancement of the Puerto Rican/Latino

community by supporting its youths’ pursuit of

educational excellence. Through its Leadership and

College Access Program, ASPIRA of NY has served

thousands of young people, helping them to

understand the college process and their career

choices.

Maintaining race conscious admissions

policies in colleges not only allows young students to

holistically describe themselves during the

admissions process but enhances an inclusive and

vibrant college setting.

Hispanic Association of Colleges And Universities

(HACU).

HACU has championed the higher

education success of the nation’s youngest and largest

ethnic population. HACU also advocates on behalf of

Hispanic Serving School Districts and the Hispanic

K-12 students they educate. The formal mission of

HACU is to promote the development of member

colleges and universities; to improve access to and the

quality of postsecondary educational opportunities for

Hispanic students; and to meet the needs of business,

industry and government through the development

and sharing of resources, information, and expertise.

Hispanic Federation, Inc. (HF). HF is the nation’s

premier Latino nonprofit membership organization.

Founded in 1990, HF seeks to empower and advance

the Hispanic community, support Hispanic families,

and strengthen Latino institutions through work in

the areas of education, health, immigration, civic

engagement, economic empowerment, and the

environment. For two decades, HF has worked to

advance educational equity, promote racial diversity

and diminish racial isolation for students of color,

particularly Latinx students.

HF promotes its

education objectives through several initiatives,

including Pathways to Academic Excellence with its

Pathways to College Prep and Pathways for Early

Childhood Literacy components.

HF supports

increased racial, ethnic, and socioeconomic diversity

in higher education to enhance pathways to

opportunity for Latinx students.

The Hispanic National Bar Association (HNBA).

Founded in 1972, HNBA has a membership

comprised of thousands of Latino lawyers, law

professors, law students, legal professionals, state

and federal judges, legislators, and bar affiliates

across the country. HNBA regularly participates as

amicus curiae in this Court, including in civil rights

and constitutional cases of importance to the millions

of people of Hispanic heritage living in the United

States.

LatinoJustice PRLDEF.

LatinoJustice PRLDEF

(formerly known as the Puerto Rican Legal Defense

and Education Fund) was founded in 1972. Its

mission is to protect the civil rights of all Latinos and

to promote justice for the pan-Latino community.

LatinoJustice PRLDEF helped establish bilingual

education in New York City, and has since combated

the forced segregation of Latino children in

Connecticut,

Delaware,

Pennsylvania,

and

Massachusetts. In addition to creating pathways for

success for Spanish-speaking children in public

schools, it has fifty years of experience increasing the

cadre of Latino/a law students and attorneys in the

country with its pre-law counseling and mentoring

programs.

League of United Latin American Citizens (LULAC).

LULAC is the largest and oldest Hispanic

membership organization in the United States. With

over 135,000 members in virtually every state of the

nation, LULAC advances the economic condition,

educational attainment, political influence, health,

and civil rights of Hispanic Americans. For more than

93 years, LULAC’s members have sought increased

opportunities in higher education for Hispanic

students through the desegregation of public schools,

reaching parity in school funding, the provision of

scholarships, educational counseling, and strong

affirmative action programs.

MANA, A National Latina Organization. MANA is a

nonprofit, advocacy organization established in 1974

whose mission is to empower Latinas through

leadership development, community service, and

advocacy.

MANA fulfills its mission through

programs designed to develop the leadership skills of

Latinas, promote community service by Latinas, and

provide Latinas with advocacy opportunities.

Massachusetts Advocates for Children (MAC).

Founded in 1969, MAC is a statewide public interest

organization that advocates for the rights of children

who face significant barriers to equal educational and

life opportunities, particularly those who have

disabilities, are low income, and/or are racially,

culturally, or linguistically diverse. MAC applies a

racial justice lens to its advocacy and has a strong

interest in diversification of the workforce at all levels

to meet the needs of culturally and linguistically

diverse students in Massachusetts.

The Massachusetts Law Reform Institute (MLRI).

MLRI is a statewide nonprofit law and poverty center,

and a principal support center for Massachusetts civil

legal aid agencies. Its mission is to advance economic,

social, and racial justice for low-income persons and

communities. For over fifty years, MLRI has engaged

in legislative, administrative, and judicial advocacy

on behalf of its clients. Addressing public and

institutional policies and procedures that either

contribute to, or perpetuate, the cycle of poverty, and

advancing racial equity, are two of the three

fundamental frameworks guiding MLRI’s mission.

MLRI has a particular interest in supporting robust

admissions in educational institutions that allow for

a broad representation of society.

National Association of Latino Elected and Appointed

Officials (NALEO) Educational Fund. The NALEO

Educational Fund is the leading nonprofit

organization that facilitates full Latino participation

in the American political process, from citizenship to

public service. Its constituents include the more than

7,000 Latino elected and appointed officials

nationwide who serve at every level of government,

including positions with local and state education

jurisdictions; counties, municipalities and special

districts; state governance bodies; and the U.S.

Congress.

The NALEO Educational Fund is

committed to strengthening the vitality and

responsiveness of our democracy by ensuring that all

of our nation’s residents can become active

contributors to our civic life.

The National Hispanic Caucus of State Legislators

(NHCSL). NHCSL is the preeminent bipartisan

organization representing the, currently, 449

Hispanic state legislators in 42 states and Puerto

Rico. Since NHCSL legislators have a duty to the best

interests of their constituents, they have legislated

policies that call for diverse student bodies in state

universities, but have found that, despite the

increasing diversity those policies have achieved,

episodes of racism, discrimination, and racial and

ethnic insensitivity continue to plague higher

education institutions. They have thus called for

state legislatures to craft, adopt and require cultural

competency plans for their states’ higher education

institutions in order to promote greater inclusivity;

plans which would be undermined without actual

diversity on campuses fostered by race- and ethnicityconscious admissions policies.

The National Hispanic Medical Association (NHMA).

NHMA is a nonprofit representing 50,000 licensed

Hispanic physicians dedicated to improving the

health of Hispanics and other underserved groups.

NHMA believes the diversity of medical education is

key to educating physicians to better care for all

Americans, and it strongly supports race/ethnic based

admissions to improve the health of all Americans.

National Latinx Psychological Association (NLPA).

NLPA is an organization of mental health

professionals, academics, researchers and students

whose objective is to generate and advance

psychological knowledge and foster its effective

application for the benefit of the Latinx population.

NLPA aims for physical, psychological and social

environments for Latinxs in the U.S. that reflect the

ideals of respect for mental health, dignity and

human and civil rights. NLPA supports racially and

ethnically diverse college campuses because they help

prepare future generations of Latinx psychologists for

an increasingly racially diverse workforce.

New York Communities for Change (NYCC). NYCC

unites communities in bold campaigns to advance

racial and economic justice. NYCC has led hundreds

of campaigns, including promoting accountability in

K-12 schools. NYCC supports campaigns that ensure

that low-income students, English language learners

and Black and Latino students have equal

opportunity to enter institutions of higher learning.

Parents Leading for Educational Equity (PLEE).

PLEE is a parent-of-color founded and led grassroots

organization in Rhode Island that works to elevate

the voices of parents of color in advocating for

improved educational outcomes, education equity and

anti-racist schools. PLEE works collaboratively with

state and local leaders to create systems that support

the future of Rhode Island children, especially

children of color.

SER Jobs For Progress National, Inc. (SER). SER is

a national nonprofit 501c(3) corporation serving the

needs of Hispanic Americans. SER was organized in

1964 by the League of United Latin American

Citizens and the American GI Forum to help

Hispanics prepare for and find jobs. SER now

operates charter schools, daycare centers, one stop

centers, and programs for the elderly, teaches

financial literacy courses, and provides many other

services that help individuals become productive

members of society. SER is made up of 35 affiliate

organizations across the country operating in over

200 cities and serving over 1.3 million individuals a

year. It is recognized by the U.S. Department of

Labor as the “premier community-based organization

serving the employment needs of the Hispanic

community.”

United States Hispanic Leadership Institute, Inc.

(USHLI).

USHLI is a national, nonprofit

organization whose mission is to promote education,

leadership development, and fulfill the promises of

democracy for Latinos and other similarly

disenfranchised groups. USHLI is one of only three

Hispanic organizations in history honored by both the

President of the United States and the Government of

Mexico for promoting education and leadership

development. Through its programs, USHLI seeks to

unite parents and educators in 30 states to create a

Culture

Education,

making

educational

advancement every family’s goal. USHLI has been

recognized by the American Association for Hispanics

in Higher Education for its impact in promoting and

facilitating access to higher education for Latino

students.

SUMMARY OF ARGUMENT

For nearly half a century, this Court has

upheld as constitutional the ability of colleges and

universities to consider race, as one of many factors,

in deciding which students to admit and has

recognized that there is a compelling government

interest in student body diversity and in “obtaining

‘the educational benefits that flow from student body

diversity.’” Fisher v. University of Texas at Austin,

579 U.S. 365, 381 (2016) (“Fisher II ”) (quoting Fisher

v. University of Texas at Austin, 570 U.S. 297, 310

(2013) (“Fisher I ”)); see Grutter v. Bollinger, 539 U.S.

306, 343 (2003); Regents of Univ. of California v.

Bakke, 438 U.S. 265, 314-15 (1978).

Petitioner’s claim that the Equal Protection

Clause of the Fourteenth Amendment requires

colorblindness, see Pet. Br. 6, 69, is contrary to

decades of precedent from the Court. The Equal

Protection Clause does not compel colorblindness, but

instead allows for sufficiently tailored race-conscious

measures like those employed by Harvard College

and the University of North Carolina in these cases.

Compelled colorblindness in higher education

admission processes would only obscure for the Court

and educational institutions the disparities

minorities continue to face and ensure their

perpetuation and exacerbation.

Student body diversity, and obtaining the

benefits that flow from it, are as important today as

when they were first acknowledged in Bakke. Yet

groups that have historically been underrepresented

in higher education, including Latinos, continue to lag

behind in several key socioeconomic indicators. There

remains, therefore, a pressing need to continue taking

concrete steps to support and protect student

diversity in higher education to “better prepare[ ]

students for an increasingly diverse workforce and

society.” Grutter, 539 U.S. at 330.

ARGUMENT

THE EQUAL PROTECTION CLAUSE DOES

NOT REQUIRE COLORBLINDNESS.

The History and Purposes of the Fourteenth

Amendment Do Not Support Petitioner’s

Argument

that

Colorblindness

Constitutionally Required.

The Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution

provides that “[n]o state shall . . . deny to any person

within its jurisdiction the equal protection of the

laws.” U.S. Const., amend. XIV. Congressional action

at the time of the Amendment’s passage and this

Court’s decisions shortly after its ratification

establish that a primary purpose of the Fourteenth

Amendment was not only to stop state-sanctioned

discrimination but also to protect newly freed African

Americans in the South and address their grievances.

The 39th Congress, which passed the

Fourteenth Amendment, enacted laws aimed at

remedying the effects of past discrimination in the

same session. The Freedmen’s Bureau Act of 1866,

enacted close in time to the passage of the Fourteenth

Amendment by Congress on June 13, 1866, tasked the

Freedmen’s Bureau with providing food, shelter,

clothing, medical services, and land to displaced and

newly freed African Americans from the South,

among other refugees.2 The establishment of the

Bureau demonstrated the intention to address the

needs of African Americans in the wake of the Civil

War. Congress also enacted multiple other raceconscious measures during this timeframe, such as

establishing hospitals and schools specifically for

newly free individuals and redistributing property

confiscated from plantation owners in the South to

newly free people.3

Similarly, the Court’s decisions in the decade

following ratification of the Fourteenth Amendment

confirmed

that

remedying

past

race-based

discrimination was a principal purpose of the

Fourteenth Amendment. In the Slaughterhouse

Cases, for example, the Court explained that the “one

pervading purpose” in passing the Thirteenth,

Fourteenth, and Fifteenth Amendments was to

“remedy” the “grievances” of African Americans:

We repeat, then, in the light of this

recapitulation of events, almost too

recent to be called history, but which are

familiar to us all, and on the most casual

examination of the language of these

amendments, no one can fail to be

impressed with the one pervading

purpose found in them all, lying at the

1865

See United States Senate, Freedmen’s Bureau Acts of

and

1866,

senate.gov,

https://www.senate.gov/artandhistory/history/common/generic/

FreedmensBureau.htm#:~:text=On%20March%203%2C%20186

5%2C%20Congress,including%20newly%20freed%20African%2

0Americans.

See Claude F. Oubre, Forty Acres and a Mule: The

Freedmen’s Bureau and Black Land Ownership 20-21,

Louisiana State University Press (1978).

foundation of each, and without which

none of them would have been even

suggested; we mean the freedom of the

slave race, the security and firm

establishment of that freedom, and the

protection of the newly-made freeman

and citizen from the oppressions of those

who had formerly exercised unlimited

dominion over him. It is true that only

the fifteenth amendment, in terms,

mentions the negro by speaking of his

color and his slavery. But it is just as

true that each of the other articles was

addressed to the grievances of that race,

and designed to remedy them as the

fifteenth.

Slaughterhouse Cases, 83 U.S. 36, 71-72 (1872)

(emphases added). Similarly, the Court underscored

seven years later that the Fourteenth Amendment

was “one of a series of constitutional provisions

having a common purpose; namely, securing to a race

recently emancipated, a race that through many

generations had been held in slavery, all the civil

rights that the superior race enjoy.” Strauder v. West

Virginia, 100 U.S. 303, 306 (1879) (holding that a

person of color had the right to a jury which could

include other people of color). The Court recognized,

even then, that judicial intervention was necessary to

protect the rights of minorities against an oftenhostile majority. Id.

In short, the historical record does not support

Petitioner’s

assertion

that

the

Fourteenth

Amendment was intended to enshrine an imperative

of constitutional colorblindness. See Pet. Br. at 50.

Instead, the Equal Protection Clause anticipated the

use of race-conscious measures to achieve its principal

purposes.

Under Court Precedent, the Equal

Protection Clause Does Not Require

Colorblindness.

Apart from being inconsistent with a principal

purpose of the Equal Protection Clause, Petitioner’s

claim of a constitutionally required colorblindness

conflicts with decades of this Court’s precedent. Not

only has this Court repeatedly approved the use of

sufficiently tailored race-conscious measures, but its

decisions have routinely considered the racial

makeup of communities, the disparate impact that

laws have across races, including on Latinos,4 and the

need for increasing diversity in the jury pool, higher

education, the workplace, and society at large. Given

such longstanding precedent, Petitioner’s call for a

new and broad constitutional rule of colorblindness

should be rejected.

In Brown, for example, after examining the

way segregation impacted a specific race, this Court

recognized the need to diversify student bodies in

public education. See Brown v. Board of Ed. of

“Hispanic” and “Latino,” while often used

interchangeably, mean different things. “Hispanic” refers to

individuals who originate from Spanish-speaking countries. See

42 USC § 300u-6(g)(2). “Latino,” meanwhile, refers to

individuals whose origins are from Latin America, which

includes Mexico, Central America, and South America. See Hugo

Lopez et al., Who is Hispanic?, Pew Research (Sep. 23, 2021),

https://www.pewresearch.org/fact-tank/2021/09/23/who-ishispanic/. In using both terms throughout this brief, amici are

not implying interchangeability, but are instead simply

recognizing that the cited references use one or the other of these

terms.

Topeka, 347 U.S. 483, 494 (1954) (“Segregation with

the sanction of law, therefore, has a tendency to

(retard) the educational and mental development of

Negro children and to deprive them of some of the

benefits they would receive in a racially integrated

school system.” (internal quotations omitted)). The

Court thus analyzed how laws requiring “separate but

equal” applications could still cause harm toward

people of color and, conscious of that, struck down

segregation laws, specific to public education, as

violating equal protection. See id. at 488-95.5

The Court has also directly applied the Equal

Protection Clause to protect other identifiable

minorities. In Hernandez v. Texas, 347 U.S. 475, 478

(1954), the Court explained that “[t]hroughout our

history differences in race and color have defined

easily identifiable groups which at times required the

aid of the courts in securing equal treatment under

the laws.” Id. at 478 (emphasis added). It emphasized

that the protections of the Equal Protection Clause

must account for evolving circumstances: “community

prejudices are not static, and from time to time other

differences from the community norm may define

other groups which need the same protection.” Id.

After acknowledging the defendant’s ethnic identity,

the racial makeup of the area in which he was tried,

and the fact that there had not been a juror of

Mexican descent in the area for the last twenty-five

Despite Petitioner’s reliance on Justice Harlan’s

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

Justice Harlan opines that “[o]ur constitution is color-blind,” the

Court has never adopted that position in subsequent cases. See,

e.g., Bakke, 438 U.S. at 336 (Brennan, J., concurring in the

judgment in part and dissenting) (“[N]o decision of this Court

has ever adopted the proposition that the Constitution must be

colorblind.”).

years, the Court held that sufficient evidence existed

to create a prima facie case of denial of equal

protection. See id. at 480-81. The Court reached its

holding despite the testimony of five jury

commissioners who had assured the lower court that

their “only objective had been to select those whom

they thought were best qualified.” Id. at 481. The

Court found that the persistent absence of a juror of

Mexican descent for such a prolonged period

“bespeaks discrimination, whether or not it was a

conscious decision on the part of any individual jury

commissioner.” Id. at 482.

Keyes v. School Dist. No. 1, 413 U.S. 189

(1973), represents yet another example where this

Court examined evolving racial disparities—a factor

that would not be permitted if Petitioner’s colorblind

paradigm

were

adopted.

After

reaffirming

Hernandez’s holding that “Hispanos constitute an

identifiable class for purposes of the Fourteenth

Amendment,” the Court noted that “Hispanos suffer

the same educational inequities as Negroes and

American Indians.” Id. at 197. It explained that, in

determining whether a school is segregated, a court

must consider “the racial and ethnic composition of a

school’s student body” as well as “other factors, such

as the racial and ethnic composition of faculty and

staff and the community and administration

attitudes towards the school.” Id. at 196.

The Court, in Plyler v. Doe, 457 U.S. 202, 230

(1982), held that laws authorizing school districts to

deny undocumented Mexican children admission to

their local public schools were unconstitutional in

violation of the Equal Protection Clause. The Plyler

decision represents yet another example of the Court

recognizing that the Equal Protection Clause does not

compel colorblindness. The Court there explained

that the Fourteenth Amendment’s Equal Protection

Clause was “intended to work nothing less than the

abolition of all caste-based and invidious class-based

legislation,” id. at 213, and that, although the Clause

generally directs that all similarly situated persons be

treated alike, “the ‘Constitution does not require

things which are different in fact or opinion to be

treated in law as though they were the same.’” Id. at

216 (quoting Tigner v. Texas, 310 U.S. 141, 147

(1940)).

Besides prohibiting invidious race-based

discrimination, this Court has also repeatedly held

that the Equal Protection Clause specifically permits

sufficiently tailored race-conscious admissions

practices in higher education. Beginning with Bakke,

Justice Powell, in a part of his opinion joined by a

majority of the Court, found 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.” 438 U.S. at 320. Indeed, four justices

in Bakke rejected outright Petitioner’s argument that

the Equal Protection Clause requires colorblindness:

“no decision of this Court has ever adopted the

proposition that the Constitution must be colorblind.”

Id. at 336 (Brennan, J., concurring in the judgment in

part and dissenting). Justice Powell recognized that

the attainment of a diverse student body was “a

constitutionally permissible goal for an institution of

higher education,” because of the essential

“atmosphere of speculation, experiment, and

creation” that such diversity promotes. Id. at 311

(opinion of Powell, J.). As the Bakke Court noted, our

country’s future “depends upon leaders trained

through wide exposure to the ideas and mores of

students as diverse as this Nation of many peoples.”

Id. at 313 (citing Keyishian v. Board of Regents, 385

U.S. 589, 603 (1967)).

In Grutter, the Court adopted and “endorse[d]

Justice Powell’s view [in Bakke] that student body

diversity is a compelling state interest that can justify

the use of race in university admissions,” 539 U.S. at

325, and thereby confirmed once again that the Equal

Protection Clause does not, as Petitioner claims,

compel colorblindness. The Court emphasized that

“not every decision influenced by race is equally

objectionable,” and that “strict scrutiny is designed to

provide a framework for carefully examining the

importance and sincerity of the reasons advanced by

the governmental decisionmaker for the use of race in

that particular context.” Id. at 327. Finding that the

race-conscious admissions policies of the University of

Michigan Law School did not violate the Fourteenth

Amendment, the Court outlined the “substantial”

benefits of a diverse student body: “cross-racial

understanding,” the breaking down of “racial

stereotypes,” and “livelier, more spirited, and simply

more enlightening and interesting” classroom

discussions. Id. at 330.

As the Grutter Court explained, however, the

benefits of student body diversity do not end at the

classroom door.

Student body diversity “better

prepares students for an increasingly diverse

workforce and society,” and “promotes learning

outcomes.” Id. Major American companies agreed,

telling the Court that “the skills needed in today’s

increasingly global marketplace can only be

developed through exposure to widely diverse people,

cultures, ideas, and viewpoints.” Id. (citing Brief for

3M et al. as Amici Curiae 5; Brief for General Motors

Corp. as Amicus Curiae 3-4). Similarly, the Grutter

Court noted that the military likewise maintained

that “a highly qualified, racially diverse officer corps

is essential to the military’s ability to fulfill its

principle [sic] mission to provide national security,”

and that “the military cannot achieve an officer corps

that is both highly qualified and racially diverse

unless the service academies and the ROTC use

limited race-conscious recruiting and admissions

policies.” Id. at 330-31. The Court determined that

“our country’s other most selective institutions must

[similarly] remain both diverse and selective.” Id. at

331.

The most recent commitment from this Court

to student body diversity as a compelling government

interest justifying the use of race-conscious

admissions was just six years ago, in Fisher II. The

Court reiterated that race-conscious admissions are

permissible so long as the practice “can withstand

strict scrutiny.” 579 U.S. at 376 (citing Fisher I, 570

U.S. at 309). Accepting that “the use of race-neutral

policies and programs had not been successful in

achieving sufficient racial diversity at the

University,” the Court held that the University had

met its burden of “showing that it had not obtained

the educational benefits of diversity before it turned

to a race-conscious plan.” Id. at 383 (internal

quotations and alterations omitted). The Court so

found, citing to the increase in the University of Texas

at Austin’s minority enrollment, 54% for Hispanics

and 94% for African Americans respectively, just

three years after the University implemented its raceconscious admissions policy.

The Fisher Court

acknowledged that, while there “remains an enduring

challenge to our Nation’s education system to

reconcile the pursuit of diversity with the

constitutional promise of equal treatment and

dignity,” the University’s admissions policy was both

constitutional and necessary. Id. at 388.

As shown by decades of Court precedent and

analysis, Petitioner’s demand for a colorblind

constitution should be rejected. No circumstances

have changed that would justify such a radical

departure from precedent and the overturning of

Grutter.

II.

EDUCATIONAL

DIVERSITY,

AND

OBTAINING ITS BENEFITS, REMAIN

COMPELLING INTERESTS.

As noted above, obtaining the benefits of

student body diversity has long been recognized as a

compelling government interest. See Fisher II, 579

U.S. at 381; Grutter, 539 U.S. at 343; Bakke, 438 U.S.

at 315. With almost fifty years of race-conscious

policies in admissions for colleges and universities

across the country, progress has undeniably been

made towards improving the socioeconomic outlook

for minorities underrepresented in higher education.

Education plays a vital role in the progress that

has been made by Latinos and other people of color.

Studies show that a better education leads to higher

income, wealth, higher homeownership rates, lower

rates of unemployment, and increased civic

participation. This positive domino effect of higher

education benefits not only individuals, but society as

a whole. These benefits strengthen the economy,

unlock the benefits of diverse workforces, and

increase community engagement.

This Court has Long Recognized the

Substantial Educational Benefits of

Student Body Diversity.

Contrary to the Petitioner’s narrative,

diversity is not an illusory advantage. Instead, the

benefits of student body diversity are significant, both

on campus and in society at large.

Just six years ago, this Court reaffirmed the

substantial educational benefits that flow from

student body diversity:

[E]nrolling a diverse student body

“promotes cross-racial understanding,

helps to break down racial stereotypes,

and enables students to better

understand persons of different races.”

Equally important, “student body

diversity promotes learning outcomes,

and better prepares students for an

increasingly diverse workforce and

society.”

See Fisher II, 579 U.S. at 381 (quoting Grutter, 539

U.S. at 330).6 Nothing has changed in the last six

See also Harvard J.A. 916, Testimony of Itzel Libertad

Vasquez-Rodriguez (“I think having had experiences and

relationships with people from different ethnoracial groups

made me a much better listener, a more empathetic person,

someone who is a more critical thinker, and whose, like,

perspective of the world is more broad. . . . And I think now, with

my work in California, working in a state that is so diverse and

that is only becoming more ethnoracially diverse, it was

important for me to have had experience and to have had

interactions with people from a variety of ethnoracial

backgrounds. And I think, again, like having had those

years to diminish the vital benefits of student body

diversity recognized by this Court.

Higher Income, Increased Leadership

Opportunity, and Higher Rates of Civic

Engagement All Flow From Educational

Diversity.

The benefits from student body diversity

continue long after students graduate and extend to

all aspects of society. As this Court has recognized,

increasing student body diversity at colleges and

universities will “better prepare[ ] students for an

increasingly diverse workforce.” Grutter, 539 U.S. at

330. A more diverse workforce is good for business,

not simply as an abstract concept, but for a company’s

bottom line: “companies with a diverse workforce are

35% more likely to experience greater financial

returns

than

their

respective

non-diverse

counterparts.”7 This financial advantage has been

linked to the creativity that a diverse group offers,

allowing for a free flow of new ideas and the

development of many varied solutions to business

problems.8 An analysis of 600 business decisions

made by 200 teams found that the decision making of

diverse teams outperformed individual decision

experiences made me a better policy maker, a better policy

thinker and much better equipped for this fellowship.”).

Amy Stahl, 3 Benefits Of Diversity In The Workplace ,

Forbes

(December

17,

2021),

https://www.forbes.com/sites/ashleystahl/2021/12/17/3-benefitsof-diversity-in-the-workplace/?sh=2be3bb0822ed.

Washington State University Carson College of

Business, 10 Benefits of Diversity in the Workplace (January 14,

2021), https://onlinemba.wsu.edu/blog/10-benefits-of-diversityin-the-workplace.

making up to 87% of the time.9 As companies

continue to unlock the benefits of a diverse workforce,

colleges and universities must be able to continue to

better prepare students for the post-graduate

workforce by increasing student body diversity on

campus. See Grutter, 539 U.S. at 330.

Similarly, as was true when this Court decided

Grutter, see id. at 330-31, the nation’s military

continues to seek a diverse set of perspectives in its

high-ranking positions.10 Although Hispanics are the

fastest growing population within the military, they

make up only 8% of the officer corps and 2% of

general/flag officers.11 There is thus still a need for

allowing institutions of higher education, including

service academies, to increase student body diversity

in order to obtain the “highly qualified, racially

diverse officer corps” that “is essential” to “national

security.” Grutter, 539 U.S. at 331.

Id.

Adrianna Rodriguez, Latinos are fastest growing

population in U.S. military, but higher ranks remain out of

reach,

USA

TODAY

(May

23,

2020),

https://www.usatoday.com/indepth/news/nation/2020/05/23/latino-hispanic-military-highranking-commissioned-officer-positions/4668013002/ (quoting

statement from the U.S. Department of Defense that “As [the

Department of Defense] continues to build on its efforts to

cultivate a diverse and inclusive workforce for all who serve, we

will draw upon the widest possible set of backgrounds, talents

and skills to maximize our warfighting capability, adapt to

address new threats and challenges, and take advantage of new

opportunities—strengthening the lethality and readiness of the

Total Force.”)

Id.

Additionally, increasing student body diversity

is critical in “cultivat[ing] a set of leaders with

legitimacy in the eyes of the citizenry.” Id. at 332.

This Court has recognized that universities

“represent the training ground for a large number of

our Nation’s leaders,” and that, for this reason, “it is

necessary that the path to leadership be visibly open

to talented and qualified individuals of every race and

ethnicity.” Id. Studies show that higher education

helps diverse students obtain and hold leadership

positions in public service careers. In a review of more

than 900 officials and executives in prominent

positions in law enforcement and government, the

review found only about 20% identify as Black,

Hispanic, Asian, Native American, multiracial or

otherwise a person of color.12 Increasing diverse

representation in government can help in multiple

ways, including “maintaining core public values,

increasing managerial efficiency, improving policy

effectiveness, raising the quality of public services,

and enhancing social mobility.”13 Therefore, it is

critical that the institutions that serve as “the

training ground” for this country’s leaders be

permitted to use race as one factor in admissions “so

that all members of our heterogenous society may

participate in the educational institutions that

provide the training and education necessary to

succeed in America.” Grutter, 539 U.S. at 332-33.

Denise Lu, Faces of Power: 80% Are White, Even as

U.S. Becomes More Diverse, The New York Times (September 9,

2020),

https://www.nytimes.com/interactive/2020/09/09/us/powerfulpeople-race-us.html.

OECD, Fostering Diversity in the Public Service,

(2009), https://www.oecd.org/gov/pem/paper-fostering-diversitypublic-service.pdf.

Allowing institutions of higher learning to

continue to increase student body diversity through

race-conscious admissions practices will also increase

civic participation among Latinos and other minority

groups.14 Studies show that those who attain higher

levels of education are more likely to vote.15 Students

often begin college near the age they can legally vote

and “are exposed to norms of voting in ways that

young people outside of colleges do not experience.”16

Yet Hispanics have typically voted at lower rates than

U.S. voters overall,17 which can result in the group’s

interests not being adequately represented. This

Court has “repeatedly acknowledged the overriding

importance of preparing students for work and

citizenship” and “has long recognized that ‘education

Jens Manuel Krogstad & Mark Hugo Lopez, Latino

voters’ interest in presidential race is mixed, and about half are

‘extremely motivated’ to vote, Pew Research Center (October 26,

2020),

pewresearch.org/fact-tank/2020/10/26/latino-votersinterest-in-presidential-race-is-mixed-and-about-half-areextremely-motivated-to-vote/ (“Civic participation, especially

voting, is an expected behavior among the highly educated in the

US, and consistent reminders of this expectation should

eventually become self-enforcing.”).

See Emily Manis, New research provides insight into

why our education says way more about our politics than it used

to,

PsyPost

(May

16,

2022),

https://www.psypost.org/2022/05/new-research-providesinsight-into-why-our-education-says-way-more-about-ourpolitics-than-it-used-to-63152 (“Educational levels have also

been linked with political participation, with more educated

people being more politically active, more likely to vote, work on

political campaigns, and commit to advocacy.”)

Eric R. Hansen, Andrew Tyner, Educational

Attainment and Social Norms of Voting, 4-5, Political Behavior

(Oct. 2019).

Krogstad & Lopez, supra note 13.

. . . is the very foundation of good citizenship.’”

Grutter, 539 U.S. at 331 (quoting Brown, 347 U.S. at

493). Allowing for the continued use of race as one

factor in higher education admissions will help attain

the “[e]ffective participation by members of all racial

and ethnic groups in the civic life of our Nation” that

this Court recognized “is essential if the dream of one

Nation, indivisible, is to be realized.” Id. at 332.

Demonstrable progress has been made in

addressing educational disparities in higher

education when a holistic, race-conscious approach is

taken. But the need for obtaining the benefits of

student body diversity at colleges and universities

remains compelling.

Overturning Grutter and

requiring the use of a strictly colorblind paradigm in

higher education would halt this progress and would

ensure that disparities across our society, including in

education, the labor force, and civic engagement,

persist and worsen.

III.

MANDATORY COLORBLINDNESS WILL

MASK EXISTING RACIAL DISPARITIES,

THWARTING THE PROMISE OF EQUAL

PROTECTION.

Racial Disparities Exist in Multiple

Areas and Would Worsen with

Colorblindness.

Despite the progress made since Bakke,

disparities still persist between Latinos and their

white peers in higher education. Education, what

Horace Mann long ago called the “great equalizer of

the conditions of men, the balance wheel of the social

machinery,” serves to alleviate most of these

disparities. See Dr. Margaret Cahalan, Widening

Participation in Higher Education in the United

States of America 6, Edge Hill University (Oct. 2013).

Therefore, increasing student body diversity at

colleges and universities remains essential today.

Although the enrollment rates of underrepresented

minorities in higher education have slowly but

steadily improved,18 racial disparities persist in

multiple areas and would worsen if colleges and

universities are forced to use colorblind admissions.19

At present, even though the Hispanic

population comprises “the nation’s largest minority

group, expected to make up 29 percent of the

population by 2060,”20 educational outcomes for

Latinos are still not on par with those of their white

De Brey, et al., Status and Trends in the Education of

Racial and Ethnic Groups 2018, National Center For Education

Statistics, https://nces.ed.gov/pubs2019/2019038.pdf (Between

“2000 and 2016, Hispanic undergraduate enrollment more than

doubled (a 134% increase from 1.4 million to 3.2 million

students).”).

See Thomas Peele and Daniel J. Willis, Dropping

affirmative action had huge impact on California’s public

universities,

EdSource

(Oct.

29,

2020),

https://edsource.org/2020/dropping-affirmative-action-hadhuge-impact-on-californias-public-universities/642437 (finding

California’s ban on affirmative action in 1996 lowered minority

enrollment); see also Schuette v. Coalition to Def. Affirmative

Action, 572 U.S. 291, 385 (2014) (Sotomayor, J., dissenting) (“In

2006 before [Michigan’s affirmative action ban] took effect,

underrepresented minorities made up 12.15 percent of the

University of Michigan’s freshman class, compared to 9.54

percent in 2012—a roughly 25 percent decline.”).

Kelly Field, More Hispanics are going to college and

graduating, but disparity persists, PBS, (May 14, 2018) at vi,

https://www.pbs.org/newshour/education/more-hispanics-aregoing-to-college-and-graduating-but-disparity-persists.

counterparts.21 In the United States, as of 2020, 24%

of Hispanic adults (25 and older) had earned an

associate degree or higher, compared to 46% of white

adults.22 These racial disparities in higher education

carry over to other facets of life. For example, similar

racial disparities are reflected in the nation’s labor

force,23 leaving many Hispanic families limited to lowto middle-wage jobs.24 Although Hispanics hold one of

the highest labor force participation rates in the

country, most of those jobs do not require a college

degree.25 Yet, half of the fastest-growing occupations

See supra, note 19.

Excelencia in Education, Latino College Completion:

United

States,

https://www.edexcelencia.org/sites/default/files/LCCStateStats/

Exc-2020-50StateFS-USA-05.pdf.

Kyle K. Moore, State Unemployment by race and

Economic

Policy

Institute

(May

2022),

https://www.epi.org/indicators/state-unemployment-raceethnicity/.

ethnicity,

“[W]orkers of color are far more likely to be paid

poverty-level wages than white workers. In 2017, 8.6 percent of

white workers were paid poverty wages—i.e., hourly wages that

would leave them below the federal poverty guideline for their

family size if they are the sole earner in the family, even if they

work full-time, year-round. In contrast, 19.2 percent—nearly one

in five—Hispanic workers were paid poverty wages, and 14.3

percent—roughly one in seven—black workers were paid

poverty wages.” David Cooper, Workers of color are far more

likely to be paid poverty-level wages than white workers,

Economic

Policy

Institute

(June

21,

2018),

https://www.epi.org/blog/workers-of-color-are-far-more-likelyto-be-paid-poverty-level-wages-than-white-workers/.

“In 2018, Latino workers represented just 17.8 percent

of the workforce overall but constituted 27.6 percent in

construction; 31.6 percent in agriculture, forestry, fishing, and

hunting; and 23.8 percent in the accommodation and food

services industries. These industries are more closely tied to the

in America require at least a four-year college

degree.26

Latinos

are

therefore

being

disproportionally left behind from these emerging

occupations.

These educational and employment disparities

impact not only Latino families, but the U.S. economy

as a whole. Given the size of the Hispanic population

as a percentage of this country’s overall population, if

this educational gap is not filled, there will be fewer

educated workers to take on high-skilled, higherpaying jobs, and this could cause “annual household

incomes for all Americans [to] drop by 5 percent by

2060.”27

Preparing

Hispanics

and

other

underrepresented minorities for the work force

through higher education, then, is essential to the

long-term strength of this nation’s economy.

business cycle than the economy overall, and their higher

cyclicality results in less stable employment for their workers.

Latinos are overrepresented in these industries, which tend to

have workers with lower levels of educational attainment,

potentially due to the lower percentage of Latino workers with a

college education.” Ryan Zamarripa, Closing Latino Labor

Market Gap Requires Targeted Policies to End Discrimination ,

Center

for

American

Progress

(Oct.

21,

2020),

https://www.americanprogress.org/article/closing-latino-labormarket-gap-requires-targeted-policies-end-discrimination/; see

also .Labor force characteristics by race and ethnicity, 2018, U.S.

Bureau

Labor

Statistics

(October

2019),

https://www.bls.gov/opub/reports/race-andethnicity/2018/home.htm#:~:text=The%20labor%20force%20par

ticipation%20rate,and%20Whites%20(57.6%20percent).

The White House, Winning the Future: Improving

Education for the Latino Community, Department of Education

(Sep. 2011), www2.ed.gov/about/inits/list/hispanic-initiative/winningthe-future-improving-education-latino-community.pdf.

Supra, note 19.

With, on average, less education and higher

unemployment rates, homeownership rates for

Hispanics lag as well.28 This disparity impacts a host

of other social and economic metrics. Homeownership

provides many benefits to both individuals and

communities,

including

“increased

wealth

accumulation, improved labor market outcomes,

better mental and physical health, increased financial

and physical health for seniors, reduced rates of

divorce, and improved school performance and

development of children.”29 Homeowners are also

more likely to become involved in community

organizations, resulting in reduced crime and greater

environmental awareness.30 But Hispanics have just

a 46% homeownership rate, compared with 72% for

non-Hispanic whites.31 This disparity is substantial,

especially when considering the socioeconomic

benefits that homeownership can provide to both

individuals and entire communities.

See William C. Dudley, Household Borrowing, Student

Debt Trends and Homeownership, Press Briefing from the

Federal Reserve Bank of New York (Apr. 3, 2017) (showing

college graduates have higher homeownership rates).

The Benefits of Homeownership, National Association

Home

Builders

Housing

Policy

Department,

https://www.internationalhousingassociation.org/fileUpload_de

tails.aspx?contentTypeID=3&contentID=266313&subContentI

D=721506&channelID=38488.

Id. at 3.

Historical Census of Housing Tables: Homeownership

by Race and Hispanic Origin, UNITED STATES CENSUS (last

visited

June

22,

2022),

https://www.census.gov/data/tables/2000/dec/cohownershipbyrace.html#:~:text=Hispanic%20householders%20(o

f%20any%20race,and%20Asians%20(53%20percent).

Finally, the disparities that persist in

education have also created persistent disparities in

wealth.32 For example, the median and mean family

wealth for white families of $188,200 and $983,400,

respectively, is significantly higher than the $36,100

and $165,500, respectively, for Hispanic families.

In short, creating a diverse student body in

higher education allows for Latinos and other

underrepresented groups to earn more, be more

gainfully employed,33 and have the financial support

to build stable communities for their families and for

their community members for generations to come.

Schools Should Not Be Forced to Ignore

Existing Racial Disparities, As Such

Disregard Will Ensure That Those

Disparities Persist.

Petitioner’s

demand

for

constitutional

colorblindness is not, as Petitioner suggests, “[t]he

way to stop discrimination on the basis of race.” Pet.

Br. at 71 (quoting Parents Involved in Cmty. Sch. v.

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

of Roberts, C.J.)). Racial discrimination—and the

longstanding

racial

disparities

that

such

discrimination fosters—cannot be addressed by

simply blinding oneself to race, as Petitioner appears

Neil Bhutta et al., Disparities in Wealth by Race and

Ethnicity in the 2019 Survey of Consumer Finances, Board of

Governors of the Federal Reserve System (Sep. 28, 2020),

https://www.federalreserve.gov/econres/notes/fedsnotes/disparities-in-wealth-by-race-and-ethnicity-in-the-2019survey-of-consumer-finances-20200928.htm.

Elka Torpey, Education pays, 2020, Career Outlook

(June 2021) (showing that the higher education level one has,

the less likely that person is to be unemployed).

to contend. In fact, doing so “can actually lead to

greater, not weaker, racial bias.”34

Instead,

mandatory colorblindness would simply obscure for

the courts and educational institutions the many

racial disparities that exist across so many facets of

society, thereby ensuring that those disparities

persist and worsen over time. See supra, Argument

Section III.A.

The Court has long recognized that

universities “occupy a special niche in our

constitutional tradition” and that “the freedom of a

university to make its own judgments as to education

includes the selection of its student body.” Grutter,

539 U.S. at 329.

A blanket policy requiring

institutions of higher education to use a colorblind

admissions process, then, infringes on that freedom

and forces those institutions to ignore what is often

an indispensable and inseverable component of who

college applicants are. The Constitution promises

“liberty to all within its reach” to “define and express

their identity.” Obergefell v. Hodges, 576 U.S. 644,

652 (2015). “[T]he most intimate and personal choices

a person may make in a lifetime, choices central to

personal dignity and autonomy, are central to the

liberty protected by the Fourteenth Amendment.”

See Victoria C. Plaut, Diversity Science: Why and How

Difference Makes a Difference, 21 PSYCH. INQUIRY 77, 87

(2010); see also Martin Luther King Jr., Where do We Go From

Here?, Annual Report Delivered at the 11th Convention of the

Southern Christian Leadership Conference (Aug. 16, 1967) (“The

tendency to ignore the Negro’s contribution to American life and

strip him of his personhood is as old as the earliest history books

and as contemporary as the morning’s newspaper.”).

Lawrence v. Texas, 539 U.S. 558, 574 (2003).35 And

dignity “remains the core aspirational value in the

struggle for racial justice.”36

Yet Petitioner’s

nationwide colorblind admissions policy would also

disadvantage students for whom race forms a critical

component of their dignity and self-identity.37 Such a

policy would limit the ability of these applicants both

to express themselves more fully and to provide

institutions, as part of the admissions process, with a

more complete understanding of who they are. This

limitation can then impact students’ desire to share

their identities with their classmates.38 These far35

In Dobbs v. Jackson Women’s Health Org., No. 191392, 2022 WL 2276808, at *37 (U.S. June 24, 2022), this Court

declared, after citing both Obergefell and Lawrence (among

other decisions): “to ensure that our decision is not

misunderstood or mischaracterized . . . [n]othing in this opinion

should be understood to cast doubt on precedents that do not

concern abortion.”

Christopher A. Bracey, Dignity in Race Jurisprudence,

7 U. PA. J. CONST. L. 669, 669 (2005); see also Boddie, The

Indignities of Color Blindness, 64 UCLA L. Rev. Discourse 64

(2016) (explaining in greater detail the argument that the

dignity of expressing one’s full self should extend to expressing

oneself in the context of race in higher education).

See Stephanie A. Fryberg and Nicole M. Stephens,

When the World is Colorblind, American Indians Are Invisible:

A Diversity Science Approach, Psychology Press (June 6, 2010)

(explaining how colorblindness creates a “lack of self-relevant

social representations” which “limits how members of [racial]

groups understand who they are and what they see as possible

for themselves.”).

See Harvard J.A. 942, Testimony of Cecilia Nunez (“I

think that for me it’s been really rewarding to be on a campus

where there are other students of color, who I think can kind of

connect to my own issues and my own identity, that I can have

meaningful conversations with. And I think it’s also been very

powerful to interact with students who don’t share my ethnic

reaching consequences for both the educational

institutions and for these applicants are neither

constitutionally required nor consistent with the

“judicial deference” given to a school’s conclusion as to

what serves its “educational goals.” Fisher II, 579

U.S. at 376-77.

This Court should reaffirm that colleges and

universities may consider race as one factor in

admissions, if they so choose, consistent with nearly

half a century of precedent from this Court. Colleges

and universities (and, by extension, society at large)

must be permitted to continue to unlock the benefits

that flow from student body diversity and “better

prepare[] students for [our] increasingly diverse

workforce and society.” Grutter, 539 U.S. at 330.

identity per se, and therefore I think we can have various

conversations about what the differences are and what kind of

the cultural experiences there have been like.”).

CONCLUSION

The judgments below should be affirmed.

Respectfully submitted,

ELIZABETH A. RITVO*

*Counsel of Record

JOSHUA P. DUNN

LUIS A. VARGAS RIVERA

BROWN RUDNICK LLP

One Financial Center

Boston, MA 02111

(617) 856-8200

eritva@brownrudnick.com

LOURDES M. ROSADO

President & General Counsel

FRANCISCA FAJANA

LATINOJUSTICE - PRLDEF

475 Riverside Drive

Suite 1901

New York, NY 10001

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.