Amicus Curiae Brief — Boston Parent Coalition for Academic Excellence Corp., Petitioner v. The School Committee for the City of Boston, et al.

No. 23-1137

In the

Supreme Court of the United States

BOSTON PARENT COALITION FOR ACADEMIC

EXCELLENCE CORP.,

Petitioner,

v.

THE SCHOOL COMMITTEE FOR THE CITY OF BOSTON;

ALEXANDRA OLIVER-DÁVILA; MICHAEL O’NEILL;

HARDIN COLEMAN; LORNA RIVERA; JERI ROBINSON;

QUOC TRAN; ERNANI DERAUJO; BRENDA CASSELLIUS,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the First Circuit

BRIEF AMICI CURIAE OF THE BEACON CENTER

OF TENNESSEE, GOLDWATER INSTITUTE,

PUERTO RICO INSTITUTE FOR ECONOMIC

LIBERTY, AND JONATHAN ROBERTS IN

SUPPORT OF PETITIONER

WENCONG FA

Counsel of Record

BEN STORMES

BEACON CENTER OF TENNESSEE

1200 Clinton St. #205

Nashville, TN 37203

(615) 383-6431

wen@beacontn.org

Counsel for Amici Curiae

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

Whether an equal protection challenge to facially raceneutral admission criteria is barred simply because

members of the racial groups targeted for decline still

receive a balanced share of admissions offers commensurate with their share of the applicant pool.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

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

IDENTITY AND INTEREST OF AMICI CURIAE ....1

INTRODUCTION AND SUMMARY OF REASONS

TO GRANT THE PETITION ......................................2

REASONS FOR GRANTING THE PETITION..........4

I.

The Question Presented is Important Given

the Alarming Rise in Government Programs

that Discriminate on the Basis of Race................4

II. Racial Discrimination by Proxy Undermines

the Fourteenth Amendment’s Core Value of

Individual Treatment Just as Much as

Express Racial Preferences ................................10

III. The First Circuit’s Decision Cannot Be

Squared with This Court’s Precedents .............13

CONCLUSION ..........................................................16

iii

Cases

TABLE OF AUTHORITIES

Adarand Constructors, Inc. v. Pena,

515 U.S. 200 (1995) .............................................. 3, 4

Carter v. Tahsuda,

743 Fed. Appx. 823 (9th Cir. 2018) ......................... 1

City of Richmond v. J.A. Croson,

488 U.S. 469 (1989) ................................................ 12

Coal. for TJ v. Fairfax Cnty. Sch. Bd.,

68 F.4th 864 (4th Cir. 2023), cert. denied,

No. 23-180 (Feb. 20, 2024) ....................................... 8

Coal. for TJ v. Fairfax Cnty. Sch. Bd.,

No. 23-170, Slip Op. (Feb. 20, 2024) ...................... 13

Fisher v. Univ. of Texas at Austin,

579 U.S. 365 (2016) .......................................... 11, 12

Gratz v. Bollinger,

539 U.S. 244 (2003) ................................................ 10

Grutter v. Bollinger,

539 U.S. 306 (2003) .................................................. 4

Holman v. Vilsack,

21-cv-1085, 2021 U.S. Dist. LEXIS 127334

(W.D. Tenn. Jul. 8, 2021) ......................................... 6

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) .............................................. 5, 8

Miller v. Johnson,

515 U.S. 900 (1995) ................................................ 10

Miller v. Vilsack,

21-cv-0595, 2021 U.S. Dist. LEXIS 264778

(N.D. Tex. Jul. 1, 2021) ............................................ 6

iv

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

No. 1, 551 U.S. 701 (2007) ............................. 3, 4, 13

Rice v. Cayetano,

528 U.S. 495 (2000) ................................................ 11

Roberts v. McDonald,

143 S. Ct. 2425 (2023) .............................................. 5

Students for Fair Admissions, Inc. v. President and

Fellows of Harvard Coll.,

143 S. Ct. 2141 (2023) .................. 8, 9, 10, 12, 13, 14

Thompson v. Henderson,

143 S. Ct. 2412 (2023) .......................................... 2, 3

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) ................................................ 15

Wynn v. Vilsack,

545 F.Supp.3d 1271 (M.D. Fla. 2021) ..................... 6

Constitution and Statutes

U.S. Const. amend. XIV .................. 3, 4, 10, 11, 13, 14

Pub. L. No. 117-169 (2022) .......................................... 6

Other Authorities

An Antiracist Agenda for Medicine, Boston R.,

Mar. 17, 2021 ........................................................... 6

Berkeley Law Dean Caught Telling Class He’d Lie

in Deposition Now Says He Was Joking, College

Fix, July 14, 2024 ..................................................... 9

Aatish Bhatia & Emily Badger, Can You Create a

Diverse College Class Without Affirmative

Action, NY TIMES (Mar. 9, 2024) ......................... 8, 9

v

Erica Breunlin, Colorado Universities Will Double

Down on Diversity After Supreme Court

Effectively Barred Affirmative Action, The Colo.

Sun (Jun. 30, 2023) .................................................. 8

Complaint, Cusano v. Cook County, No. 1:22-cv7196, (N.D. Ill. Dec. 21, 2022).................................. 7

Complaint, Dalton v. Hao, No. 1:23-cv-11216 (D.

Mass. May 31, 2023) ................................................ 7

Cong. Globe, 39th Cong., 1st Sess. 2766 (1866)

(statement of Sen. Howard) ..................................... 4

Decl. of Independence, 1 Stat. 1 (1776) ...................... 4

Dep’t of Educ. Office of Civil Rights & Dep’t of

Justice’s Educ. Opp. Section, Questions and

Answers Regarding the Supreme Court’s

Decision in Students for Fair Admissions, Inc. v.

Harvard Coll. and Univ. of North Carolina

(Aug. 14, 2023) ......................................................... 9

Jerome Karabel, The Chosen: The Hidden History

of Admissions at Harvard, Yale, and Princeton

(2005) ...................................................................... 14

Asra Nomani, How Mama Bears Won a Court

Victory—and Helped Elect a Governor—in

Virginia (Education Next, Aug. 23, 2022)............. 12

Order Granting in Part and Reserving Ruling in

Part on Plaintiff’s Motion for Temporary

Restraining Order and Preliminary Injunction,

Collins v. Meyers, No. 21-cv-2713-WJM-NY (D.

Colo. Oct. 12, 2021) .................................................. 7

vi

Alex Zimmerman and Monica Disare, De Blasio’s

Specialized School Proposal Spurs Outrage in

Asian Communities (Chalkbeat, Jun. 5, 2018) ..... 12

1

IDENTITY AND INTEREST OF AMICI CURIAE 1

The Beacon Center of Tennessee is a nonprofit

public interest organization that strives to protect individual rights and eliminate government barriers to

opportunity. To this end, Beacon represents Tennesseans and other Americans free-of-charge in public interest litigation. This case is relevant to Beacon because Beacon seeks to eliminate government-imposed

barriers — such as racial discrimination — to educational opportunity for all.

The Goldwater Institute is a nonpartisan public

policy and research foundation dedicated to advancing

the principles of limited government, economic freedom, and individual responsibility. Through its

Scharf-Norton Center for Constitutional Litigation,

the Institute litigates on behalf of clients and participates as amicus curiae in cases involving constitutional liberty. The Institute has worked to end government racial discrimination, having helped draft the

Arizona Civil Rights Initiative in 2010, and litigating

against discrimination in many cases. See, e.g., Carter

v. Tahsuda, 743 Fed. Appx. 823 (9th Cir. 2018).

The Puerto Rico Institute for Economic Liberty (ILE for its Spanish acronym) is a nonpartisan

public policy foundation dedicated to advancing the

principles of individual liberties, the rule of law, private property rights, and limited government. ILE’s

mission includes identifying and removing public

1 The parties were notified that amici intended to file this brief at

least 10 days before its filing. See Sup. Ct. R. 37.2. No party’s

counsel authored any part of this brief, and Amici alone funded

its preparation and submission. See Sup. Ct. R. 37.6.

2

sector barriers to provide opportunities and enable all

Puerto Rico residents to prosper under a free marketbased system that allows them to achieve their goals,

eliminate dependency, and live the kind of lives they

value.

Jonathan Roberts is a lifelong New Yorker and

a strong proponent of equality before the law. In 2022,

Mr. Roberts filed a civil rights lawsuit challenging

government-issued directives that instructed medical

providers to use race in prioritizing then-scarce

COVID-19 treatments. As Justice Alito noted, the government’s actions in Mr. Roberts’s case “illustrate[d]

the danger of departing from the foundational principle that in the United States all people are entitled to

‘equal justice under law.’” Thompson v. Henderson,

143 S. Ct. 2412, 2414 (2023) (Alito, J., respecting denial of cert.).

INTRODUCTION AND SUMMARY OF

REASONS TO GRANT THE PETITION

For twenty years, admission to three of Boston’s

selective public schools was based on GPA and performance on a standardized test. App. 5a. In 2020, the

Boston School Committee convened a working group

and charged it with revising the admissions process.

Id. at 6a–7a. That group’s “equity impact statement”

declared that it will “work towards an admissions process” to tailor “enrollment at each of the [three] schools

so that it better reflects the racial, socioeconomic and

geographic diversity of all students (K-12) in the city

of Boston.” Id.

3

To that end, the group “reviewed multiple simulations of the racial compositions that would result from

different potential admissions criteria.” Id. at 7a.

Following deliberations infected with racial animus, the School Committee replaced its longstanding

admissions policy with a plan that reserved seats for

applicants from each of Boston’s 29 zip codes. See id.

at 8a–9a. The gerrymandered admissions process had

its intended effect: the proportion of white and Asian

students fell from 61% to 49%. Id. at 16a. The First

Circuit upheld the new admissions plan. It accepted

that “the Plan was chosen precisely to alter racial demographics,” id. at 29a, but nonetheless held that the

Coalition failed to establish a disparate impact merely

because Asian American and white applicants still

earned more seats than their share of the applicant

pool. See App. 17a–19a.

This Court should grant the Petition. First, the

Fourteenth Amendment recognizes that every American is “a unique individual and must be treated as

such by the law.” Thompson, 143 S. Ct. at 2414 (Alito,

J., respecting denial of cert.). Recent years have witnessed an alarming rise in government programs that

“divide [us] up by race or ancestry,” id., and discriminate on the basis of race. Review is sorely needed to

clarify that governments may not sidestep the prohibition on racial discrimination by resorting to facially

neutral proxies for race.

Second, as this Court has explained time and

again, the Fourteenth Amendment “protect[s] persons,

not groups.” Adarand Constructors, Inc. v. Pena, 515

U.S. 200, 227 (1995) (emphasis in original); Parents

Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551

4

U.S. 701, 743 (2007); Grutter v. Bollinger, 539 U.S.

306, 326 (2003). Yet discrimination by proxy threatens

individualism every bit as much as express racial classifications.

Third, the First Circuit’s disparate impact analysis clashes with this Court’s equal protection jurisprudence. That court veered in the wrong direction when

it tied the viability of an equal protection claim to

whether the plaintiff was a part of an overrepresented

racial group, as opposed to whether he or she suffered

discrimination. See App. 26a. That analysis contravenes the Fourteenth Amendment’s demand that the

government treat all Americans as individuals.

REASONS FOR GRANTING THE PETITION

I.

The Question Presented is Important Given

the Alarming Rise in Government Programs

that Discriminate on the Basis of Race

“All men are created equal,” endowed with “unalienable Rights.” Decl. of Independence, 1 Stat. 1

(1776). The Fourteenth Amendment enshrines this

fundamental guarantee of “equality before the law,

and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful.”

Cong. Globe, 39th Cong., 1st Sess. 2766 (1866) (statement of Sen. Howard).

The concept of “a creditor or debtor race” is “alien

to the Constitution’s focus upon the individual.”

Adarand Constructors, 515 U.S. at 239 (Scalia, J., concurring). “In the eyes of government, we are just one

race here. It is American.” Id.

5

Yet it has become increasingly fashionable in recent years to “divvy[] us up by race.” League of United

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

(LULAC) (Roberts, C.J., concurring). Government entities—federal, state, and local—have increasingly

flouted the Constitution’s guarantee of equality before

the law. In so doing, they have discarded the principle

of equal rights among individuals, in favor of equal

outcomes among groups.

One example involves racial preferences in the

distribution of lifesaving COVID-19 treatments. In

December 2021, Americans faced the largest wave of

reported COVID-19 cases during the pandemic, and a

severe supply shortage of effective COVID-19 antivirals. The State of New York and New York City issued

directives to healthcare providers instructing them to

prioritize treatment for certain patients. Aside from

race-neutral factors such as kidney disease and heart

conditions, however, these governments directed providers to prioritize treatment to non-white or Hispanic

patients. Roberts v. McDonald, 143 S. Ct. 2425, 2425

(2023) (Alito, J., respecting denial of cert.). The government attempted to use “longstanding systemic

health and social inequities” to justify these mechanical racial preferences. Id. Fortunately, however, the

supply shortage giving rise to the case soon ended, but

New York’s actions reflect a disturbing instinct to prioritize medical treatment on the basis of race.

Some health care officials, in fact, now openly advocate discriminating against whites and other groups

in the provision of medicine. In a 2021 article in the

Boston Review, physicians Bram Wispelwey and

Michelle Morse of Brigham and Women’s Hospital in

6

Boston boasted of their choice to give “a preferential

admission option for Black and Latinx heart failure

patients to our specialty cardiology service,” and indeed to rely on race “rather than rely on provider discretion or patient self-advocacy to determine whether

they should go to cardiology or general medicine.”

Such discrimination, they claimed, was required to

correct for “our system of colorblind law.” An Antiracist Agenda for Medicine, Boston R., Mar. 17, 2021. 2

The federal government has even instituted mechanical racial preferences. The American Rescue

Plan Act of 2021 called for billions of dollars in debt

relief to farmers and ranchers. Yet the government

provided debt relief only to socially disadvantaged

farmers and defined “social disadvantage” exclusively

in terms of race and ethnicity. Wynn v. Vilsack, 545

F.Supp.3d 1271, 1275 (M.D. Fla. 2021). Regardless of

a farmer’s individual circumstance, the program provided debt relief for all black, Hispanic, and Asian

farmers with eligible loans, while categorically excluding white (non-Hispanic) farmers. 3

Other examples involve racial preferences in

COVID-19 relief grants. In Colorado, an event planner

https://www.bostonreview.net/articles/michelle-morsebramwispelwey-what-we-owe-patients-case-medical-reparations/

3

Three different federal courts issued preliminary injunctions preventing the government from forgiving loans on the basis of race, and the federal government subsequently repealed the

discriminatory program. Wynn, 545 F.Supp.3d at 1294–95; Miller

v. Vilsack, 21-cv-0595, 2021 U.S. Dist. LEXIS 264778, at *35–36

(N.D. Tex. Jul. 1, 2021); Holman v. Vilsack, 21-cv-1085, 2021 U.S.

Dist. LEXIS 127334 at *35 (W.D. Tenn. Jul. 8, 2021); see also Pub.

L. No. 117-169, §§ 22007-08 (2022) (repealing race-based forgiveness program).

2

7

who had lost all revenue generated from his event

planning business because of COVID-19 cancellations

challenged a statewide relief plan that allocated relief

“mechanical[ly]” based on racial qualifiers. Order

Granting in Part and Reserving Ruling in Part on

Plaintiff’s Motion for Temporary Restraining Order

and Preliminary Injunction at 5, Collins v. Meyers

(Collins TRO), No. 21-cv-2713-WJM-NY (D. Colo. Oct.

12, 2021).

In Illinois, a chiropractor sued Cook County for

discriminating against him through its COVID-19

small business grant program. The application required applicants to identify whether the business is

at least 51% minority-owned, operated, and controlled, and noted that the grant program “prioritizes

historically excluded populations for selection, including People of Color, Women, Veterans, and Persons

with a Disability.” Complaint at ¶¶ 23–24, Cusano v.

Cook County, No. 1:22-cv-7196, (N.D. Ill. Dec. 21,

2022).

Small business owner Brian Dalton challenged a

Massachusetts program that excluded his business

from consideration for a grant because of his race. The

state’s Inclusive Recovery Grant Program aimed to assist small businesses with grants of up to $75,000. Yet

this “inclusive” program excluded applicants from consideration unless they were members of a racial minority, or women, or LGBTQ+. Complaint at ¶ 2, Dalton v. Hao, No. 1:23-cv-11216 (D. Mass. May 31, 2023).

These civil rights lawsuits led to happy endings.

Faced with legal challenges, the government entities

either scrapped their race-based programs or gave

grants to all who had applied. Yet these cases also

8

show the regrettable persistence of government efforts

to “divvy[] us up by race.” LULAC, 548 U.S. at 511

(Roberts, C.J., concurring).

This Court’s precedents provide a clear path for

victims of overt racial discrimination to seek a remedy

in court. Last term’s landmark decision in Students for

Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 143 S. Ct. 2141 (2023), made plain that

there is no higher-education exception to the Constitution’s mandate of equality before the law. Yet, as

demonstrated by this case and the Fourth Circuit’s decision in Coal. for TJ v. Fairfax Cnty. Sch. Bd., 68

F.4th 864 (4th Cir. 2023), cert. denied, No. 23-180

(Feb. 20, 2024), students suffering the sting of racial

discrimination by proxy face a murky doctrine in raising their equal protection claims.

This issue will only grow in importance. Many

schools now forbidden from overtly using racial classifications to generate some preconceived racial demographic outcome will turn to purportedly neutral proxies for race to achieve the same ends. After this Court’s

decision in Students for Fair Admissions, the University of Colorado reiterated its “unwavering” commitment to doing just that. See Erica Breunlin, Colorado

Universities Will Double Down on Diversity After Supreme Court Effectively Barred Affirmative Action,

The Colo. Sun (Jun. 30, 2023). 4 Many other selective

colleges did likewise. See Aatish Bhatia & Emily

4 https://coloradosun.com/2023/06/30/colorado-colleges-universities-affirmative-action/.

9

Badger, Can You Create a Diverse College Class Without Affirmative Action, NY TIMES (Mar. 9, 2024). 5

Erwin Chemerinsky, Dean of the University of

California, Berkeley School of Law, even told an audience last year that the school engages in racial discrimination in faculty hiring to achieve “diversity,” despite the fact that this is illegal, adding “if ever I’m

deposed, I’m going to deny I said this to you.” Berkeley

Law Dean Caught Telling Class He’d Lie in Deposition

Now Says He Was Joking, College Fix, July 14, 2024. 6

In March, the New York Times published an interactive article that modeled ways for universities to engage in racial balancing without using overt racial

preferences. Bhatia & Badger, supra, and the federal

government offered similar guidance in August. It advised schools to use “information about the applicant’s

neighborhood and high school” as a permissible way to

achieve a desired racial outcome after Students for

Fair Admissions. Dep’t of Educ. Office of Civil Rights

& Dep’t of Justice’s Educ. Opp. Section, Questions and

Answers Regarding the Supreme Court’s Decision in

Students for Fair Admissions, Inc. v. Harvard Coll.

and Univ. of North Carolina (Aug. 14, 2023). 7

In all, Petitioner is correct in noting that this issue

is not going away. Pet. for Cert at 4.

5 https://www.nytimes.com/interactive/2024/03/09/upshot/affirmative-action-alternatives.html?smid=nytcore-ios-share&referringSource=articleShare&sgrp=c-cb.

6

https://www.thecollegefix.com/berkeley-law-dean-caught-telling-class-hed-lie-in-deposition-now-says-he-was-joking/.

7 ocr-questionsandanswers-tvi-20230814.pdf (ed.gov)

10

II. Racial Discrimination by Proxy Undermines

the Fourteenth Amendment’s Core Value of

Individual Treatment Just as Much as Express Racial Preferences

The Constitution prohibits both overt and covert

forms of discrimination. That’s because, regardless of

form, government-sponsored discrimination flouts the

constitutional mandate that government must treat

each American as an individual. Miller v. Johnson,

515 U.S. 900, 911 (1995). “Race-based assignments

embody stereotypes that treat individuals as the product of their race.” Id. at 912 (internal quotation marks

omitted).

When the State assigns voters on the basis of race,

for instance, it engages in “the offensive and demeaning assumption that voters of a particular race, because of their race, think alike.” Id. at 911–12. In admissions decisions, too, a student must be assessed by

“[his or her] unique ability to contribute to the university . . . based on his or her experience as an individual—not on the basis of race.” Students for Fair Admissions, 143 S. Ct. at 2176.

Regardless of form, race-based admissions decisions offend the basic constitutional principle of individualism. Admissions plans that employ proxies to

achieve the government’s desired racial balance suffer

from three fatal flaws.

First, such plans rely on race in a “nonindividualized, mechanical” way. Gratz v. Bollinger, 539 U.S.

244, 280 (2003) (O’Connor, J., concurring). Students

are admitted not because of their individual characteristics, but because they reside in an area that

11

makes them a likely member of the government’s desired racial group. This form of racial discrimination

not only contravenes the Fourteenth Amendment but

also the reasoning advanced by proponents of racial

preferences in admissions. As one advocate defending

a university’s use of racial preferences asserted to this

Court, a “holistic” admissions process would be needed

to further “diversity within diversity.” Fisher v. Univ.

of Texas at Austin, 579 U.S. 365, 416 (2016) (Fisher II)

(Alito, J., dissenting) (citing University’s brief at 34).

But geographic quotas—like the one here—undermine

that goal because they all but ensure that the increase

in members of a racial group will all come from the

same geographic area.

Second, admissions programs that discriminate

by the clever use of proxies of race are still just racial

classifications. Some consider them facially race-neutral because they don’t consider the race of any student, but the programs nonetheless fixate on the racial

composition of the student body. How else would they

determine whether a group is “overrepresented” or

not?

“The very object” of proxy-based discrimination is

to “single[] out ‘identifiable classes of persons . . .

solely because of their ancestry or ethnic characteristics,’” and to do so “for a racial purpose.” Rice v. Cayetano, 528 U.S. 495, 515 (2000) (citation omitted). It

relies on government-created racial labels—and those

labels are broad and arbitrary. See App. 7a–8a (noting

the working group’s fixation on sorting students into

one of four categories: “White,” “Asian,” “Black,” and

“Latinx.”). The broad racial category “Asian,” for example, has been used by universities to group together

12

Chinese, Korean, Japanese, Indian, Bangladeshi, and

Pakistani individuals: individuals with vastly different appearances, languages, and cultures. See Students for Fair Admissions, 143 S. Ct. at 2210–12 (Gorsuch, J., concurring). “It would be ludicrous to suggest

that all of these students have similar backgrounds

and similar ideas and experience to share. So why [are

they lumped] together[?]” Fisher II, 579 U.S. at 414

(Alito, J., dissenting).

Third, admissions programs that discriminate

through proxies increase racial hostilities just as

much as plans that use express racial classifications.

Cf. City of Richmond v. J.A. Croson, 488 U.S. 469, 493

(1989) (racial classifications must be “strictly reserved

for remedial settings” in part because they “lead to a

politics of racial hostility”). 8 See also Asra Nomani,

How Mama Bears Won a Court Victory—and Helped

Elect a Governor—in Virginia (Education Next, Aug.

23, 2022) (detailing Coalition for TJ member’s fight for

equality at Thomas Jefferson High School) 9; Alex Zimmerman and Monica Disare, De Blasio’s Specialized

School Proposal Spurs Outrage in Asian Communities

(Chalkbeat, Jun. 5, 2018). 10

8 To be sure, racial discrimination is wrong regardless of the re-

action it evokes. It is the act of discrimination, not the reaction to

it, that violates the constitutional mandate of equality under the

law.

9

https://www.educationnext.org/how-mama-bears-won-courtvictory-helped-elect-governor-virginia-immigrant-parents-asiafight-discrimination/

10

https://www.chalkbeat.org/newyork/2018/6/5/21105142/deblasio-s-specialized-school-proposal-spurs-outrage-in-asian-communities/

13

This is no surprise. Admissions programs like the

one here “effectively assure that race will always be

relevant in American life, and that the ultimate goal

of eliminating entirely from governmental decisionmaking such irrelevant factors as a human being’s

race will never be achieved.” Parents Involved, 551

U.S. at 730 (internal quotation marks omitted).

In the end, the “Constitution deals with substance, not shadows, and the prohibition against racial discrimination is levelled at the thing, not the

name.” Students for Fair Admissions, 143 S. Ct. at

2176 (internal quotation marks omitted). This Court

should take this case to resolve once and for all that

racial balancing, whatever its form, is “patently unconstitutional.” Parents Involved, 551 U.S. at 730.

III. The First Circuit’s Decision Cannot Be

Squared with This Court’s Precedents

The decision below was wrong in two key respects.

First, the court below incorrectly concluded that the

admission plan couldn’t be a “subterfuge for . . . a racebased selection process” merely because “admission

under the Plan correlates positively with being White

and Asian, the only groups numerically over-represented under the Plan.” App. 25a–26a. The Fourteenth Amendment forbids government from discriminating on the basis of race. Yet the First Circuit’s

holding “effectively licenses official actors to discriminate against any racial group with impunity as long

as that group continues to perform at a higher rate

than other groups.” Coal. for TJ v. Fairfax Cnty. Sch.

Bd., No. 23-170, Slip Op. at 8 (Feb. 20, 2024) (Alito, J.,

dissenting from denial of certiorari).

14

The First Circuit’s logic is incompatible with this

Court’s decision in Students for Fair Admissions. Harvard’s admissions plan violated Title VI because it disadvantaged Asian students—even though Asian students were “overrepresented” under either Harvard’s

plan or a racial-neutral one. 143 S. Ct. at 2171 (Asian

Americans made up between 17% to 20% of the incoming class at Harvard even under a system that discriminated against them); id. at 2156 & n.2 (discrimination that violates the Equal Protection Clause also

violates Title VI when committed by an institution

that accepts federal funds).

The First Circuit’s rationale would have also excused Harvard’s disreputable discrimination against

Jewish students roughly a century ago. See Jerome

Karabel, The Chosen: The Hidden History of Admissions at Harvard, Yale, and Princeton 96 (2005) (Harvard admissions subcommittee used information

about a student’s name, place of birth, and parents to

assign the student a J1, J2, or J3 to designate the likelihood that the applicant was Jewish). After all, Jewish students were “overrepresented” at elite colleges

like Harvard.

In all, the First Circuit’s test—which prevents

white and Asian students from prevailing on an equal

protection claim because their group is overrepresented—is incompatible with the Constitution’s demand that government treat each person as an individual. Protection under the Fourteenth Amendment

doesn’t depend on (perceived) political power, but on

the moral and constitutional imperative of equality before the law.

15

Second, the First Circuit failed to appreciate that

the Committee’s two-tier system served as strong evidence of discrimination. Cf. Vill. of Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977)

(substantive departures may be relevant, especially if

factors usually considered important by the decisionmaker strongly favor a decision contrary to the

one reached).

The initial phase of the new admission plan reflected the Committee’s decision to use GPA as the indicator of merit. App. 45. The Committee ranked applicants by GPA and filled 20% of seats at Boston’s selective exam schools with the highest-ranked students. Id. But subsequent rounds of admission reserved seats for applicants by geographic area, and

pitted applicants only against peers from the same zip

code. Because student performance varied among the

school districts, the zip code quota marked a sharp departure from the criterion (GPA) the Committee

viewed as dispositive in the first phase. Over 60% of

students admitted from one predominantly black and

Hispanic zip code were admitted with a GPA of below

10.0 on a 12-point scale. Pet. for Cert. 10. In at least

six majority white and Asian zip codes, however, the

number of students with a sub-10 GPA was zero. See

id. In other words, the Committee departed substantively from its norm by skipping students with high

GPAs in high-performing zip codes. It did so because

it believed that they were likely white or Asian—

which violates the Equal Protection Clause.

In the end, the First Circuit joined the Fourth Circuit in endorsing an admissions plan that deprives

students of educational opportunities on the basis of

16

race. This Court should grant review to ensure that

the First Circuit’s reasoning doesn’t spread to deny

other students of their fundamental right to equality

under the law.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

WENCONG FA

Counsel of Record

BEN STORMES

BEACON CENTER OF TENNESSEE

1200 Clinton St. #205

Nashville, TN 37203

(615) 383-6431

wen@beacontn.org

Counsel for Amici Beacon Center

of Tennessee, Goldwater Institute,

Puerto Rico Institute for Economic

Liberty, and Jonathan Roberts