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

Supreme Court briefMay 17, 2024

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No. 23-1137

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In the

Supreme Court of the United States

BOSTON PARENT COALITION FOR

ACADEMIC EXCELLENCE CORP.,

Petitioner,

THE SCHOOL COMMITTEE FOR THE

CITY OF BOSTON, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIRST

CIRCUIT

BRIEF OF AMICI CURIAE THE ASIAN

AMERICAN COALITION FOR EDUCATION,

THE ASIAN AMERICAN LEGAL

FOUNDATION, AND FRIENDS OF LOWELL

FOUNDATION, IN SUPPORT OF PETITIONER

Lee C. Cheng

Director and Secretary

Asian American Legal

Foundation

11 Malta Street

San Francisco, CA 94131

Gordon M. Fauth, Jr.

(counsel of record)

Fauth Law Firm

66 Franklin St., Ste. 300

Oakland, CA 94607

gmf@classlitigation.com

Tel: (510) 238-9610

Counsel for Amici Curiae

──────────────────────────────────

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iv

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

SUMMARY OF ARGUMENT .................................... 4

ARGUMENT ............................................................... 6

IT IS VITAL THAT THIS COURT EXAMINE

BOSTON’S USE OF PROXIES DESIGNED TO

FORCE ASIAN AMERICAN AND WHITE

APPLICANTS TO ACHIEVE HIGHER

STANDARDS FOR ADMISSION THAN

APPLICANTS OF OTHER RACES.. ................. 6

II.

THE ADMISSIONS PLAN WAS ROOTED IN

EVIDENCED RACIAL ANIMUS, AND

DESIGNED TO LOWER ASIAN AMERICAN

AND WHITE ENROLLMENT........................... 9

III. ASIAN AMERICANS ARE DIVERSE AND

CONTRIBUTE SIGNIFICANTLY TO

DIVERSITY ...................................................... 10

IV. THE MESSAGE THAT ASIAN AMERICANS

ARE “OVERREPRESENTED” FUELS

HOSTILITY AND VIOLENCE AGAINST

MEMBERS OF THIS GROUP......................... 12

THE RATIONALE USED TO JUSTIFY

DISCRIMINATION IN BOSTON ECHOES

THE REPELLANT STEREOTYPES

HISTORICALLY USED TO JUSTIFY

DISCRIMINATION AGAINST ASIAN

AMERICANS .................................................... 15

Throughout Much of America’s History,

Discrimination Against and Persecution

of Asian Americans Was the Shameful

Norm ........................................................ 15

The Page Act and Chinese

Exclusion Act. .......................................... 17

World War II Internment of Japanese

American Families................................... 18

The Disgraceful History of

Discrimination Against Asian Americans

in Education ............................................. 19

VI. THE BOSTON ADMISSIONS PLAN IS PART

OF AN ACTIVIST “RACIAL EQUITY”

MOVEMENT THAT SEEKS

UNCONSTITUTIONALLY TO IMPOSE

EQUAL RESULTS AMONG RACIAL

GROUPS AT MERIT-BASED SCHOOLS....... 22

VII. ELIMINATING OBJECTIVE CRITERIA FOR

ADMISSION TO MAGNET SCHOOLS

BENEFITS NO ONE, AND WILL ONLY

PERPETUATE RACIAL DIVISIONS WHILE

UNDERMINING AMERICA'S

COMPETITIVENESS ...................................... 26

VIII. THIS COURT’S RULING IN STUDENTS FOR

FAIR ADMISSIONS DOES NOT ADDRESS

THE ISSUE PRESENTED HERE .................. 28

iii

IX.

THERE IS AN URGENT NEED TO FORBID

CYNICAL RACE PROXIES IF THE EROSION

OF EQUAL PROTECTION IS TO BE

STOPPED ......................................................... 30

CONCLUSION.......................................................... 31

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Pena, 515 U.S. 200

(1995) .................................................................. 7

Brown v. Board of Education,

347 U.S. 483 (1954) .............................. 21, 30, 31

Gong Lum v. Rice, 275 U.S. 78 (1927) ..................... 20

Hirabayashi v. United States,

320 U.S. 81 (1943) ............................................ 18

Hirabayashi v. United States,

828 F. 2d 591 (9th Cir. 1987) ........................... 19

Ho Ah Kow v. Nunan,

12 F. Cal. 252 (C.C.D. Cal. 1879) ..................... 16

Ho v. San Francisco Unified Sch. Dist.,

147 F. 3d 854 (9th Cir. 1998) ................. 3, 20, 21

In re Ah Chong,

2 F. 733 (C.C.D. Cal. 1880) .............................. 16

In re Lee Sing,

43 F. 359 (C.C.D. Cal. 1890) ............................ 17

In re Tiburcio Parrott,

1 F. 481 (C.C.D. Cal. 1880) .............................. 16

Johnson v. California, 543 U.S. 499 (2005) ............. 10

Korematsu v. United States,

584 F. Supp. 1406 (N.D. Cal. 1984) ................. 19

Lee v. Johnson,

404 U.S. 1215 (1971) ........................................ 21

Miller v. Johnson, 515 U.S. 900 (1995) .................... 29

Parents Inv. In Comm. Sch. v. Seattle School No. 1,

551 U.S. 701, 127 S. Ct. 2738 (2007) ........... 7, 29

People v. Hall, 4 Cal. 399 (1854) .............................. 16

Plessy v. Ferguson, 163 U.S. 537 (1896)................... 20

Rice v. Cayetano, 528 U.S. 495 (2000) ........................ 8

Richmond v. Croson, 488 U.S. 469 (1989) ............... 12

San Francisco NAACP v. San Francisco Unified Sch.

Dist., 59 F. Supp. 2d 1021 (N.D. Cal. 1999) .... 21

Shaw v. Hunt, 517 U.S. 899 (1996) .......................... 29

Students for Fair Admissions, Inc. v. President and

Fellows of Harvard College, 600 U.S. 181,

143 S. Ct. 2141 (2023) ......................... 1, 7, 28-30

Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885) .............. 19

United States v. Wong Kim Ark,

169 U.S. 649 (1898) .......................................... 17

Wong Him v. Callahan,

119 F. 381 (C.C.N.D. Cal. 1902) ...................... 20

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ...................................... 8, 17

Statutes, Orders

18 U.S.C. § 97a ................................................... 18 n. 6

Chinese Exclusion Act ......................................... 17-18

Executive Order 9066 ........................................ 18 n. 6

Record

Joint Agreed Statement of Facts exhibits (cited in

form “ASE___.”) ..................................................... 9, 10

Petitioner’s Appendix (cited as “App.”). ........... 8, 9, 10

Books

Low, Victor. The Unimpressible Race

(East/West Publishing Co. 1982) ..................... 15

McClain, Charles. In Search of Equality

(Univ. of Cal. Press 1994) ......................... 15, 19

Sandmeyer, Elmer C. The Anti-Chinese Movement

in California, (Univ. of Ill. Press 1991) ......... 15

Miscellaneous

Affirmative Action and the Harvard College

Diversity-Discretion Model: Paradigm or Pretext, 1

Cardozo L. Rev. 379, 385-399 (1979) ........................ 22

Aftermath of Brown v. Board of Education, Legal

Information Institute, found at https://www.law.

cornell.edu/constitution-conan/amendment14/section-1/aftermath-of-brown-v-board-ofeducation .................................................................. 30

Americans for Merit-Based Admissions, Wall Street

Journal (April 28, 2022), found at https://www.wsj.

com/articles/americans-for-merit-based-admissionspew-research-poll-ibram-x-kendi-11651181826 ...... 27

Anti-Asian Hate Crimes Rose 73% Last Year,

Updated FBI Data Says, NBCNews (Oct. 25, 2021),

found at https://www. nbcnews.com/news/asianamerica/anti-asian-hate-crimes-rose-73-last-yearupdated-fbi- data-says-rcna3741 .............................. 13

vii

Anti-Asian Hate Crimes Increased 339 Percent

Nationwide Last Year, Report Says, NBCNews (Jan.

31, 2022), found at https://www. nbcnews.

com/news/asian-america/anti-asian-hate-crimesincreased-339-percent-nationwide-last-year-reporcna14282 .................................................................. 13

Boston Public Schools Sued over Alleged Race-Based

Admissions, Breitbart (June 13, 2022), found at

https://www.breitbart.com/education/2022/06/13/bost

on-public-schools-sued-over-alleged-race-basedadmissions/ ....................................................... 6-7 n. 2

Boston School Committee Chair Resigns After

Outrage Over His Mocking Of Asian American

Names, found at https://www.wbur.org/ edify/

2020/10/22/ loconto-mocking-resigns ....................... 10

Chinese Immigration and the Chinese Exclusion

Acts, found at https://history.state.gov/

milestones/1866-1898/chinese-immigration ....... 17-18

DOE-Sponsored Group Said Asians Benefit From

White Privilege, New York Post (May 26, 2019),

found at https://nypost.com/2019/ 05/26/doe-mayhave-claimed-asian- students-benefit-from-whitesupremacy/ ................................................................ 14

Exam Schools Admissions Task Force, found at

https://www. bostonpublicschools.org/ domain/2931 . 9

Expelling Asian Americans From Top Schools Proves

NYC Education Is Off The Rails, New York Post,

May 3, 2021), found at https://nypost.com/2021/

05/03/expelling-asian-americans-from-top-schoolsproves- nyc-education- is-off-the-rails/ ..................... 24

Free Dictionary, The, found at https://idioms.

thefreedictionary.com/Chinaman%27s+chance ....... 15

viii

Group Rights, American Jews, and the Failure of

Group Libel Laws, 66 Brook. L. Rev. 71, 111-12

(Spring 2000) ............................................................. 22

Harvard Warns That Chinese Tech Is Rapidly

Overtaking American Capabilities, The Byte, found

at https://futurism. com/the-byte/harvard-reportchina-tech .................................................................. 26

Hate Crimes Against Asian Americans Are on the

Rise, Time, Feb. 18, 2021, found at https://time.com

/5938482/asian-american-attacks/ ........................... 13

How Colleges Partner With K-12 On Student

Success, University Business, Oct. 17, 2019, found

at https://universitybusiness. com/ colleges-partnerk-12-student-success/ ................................................ 28

Income Inequality in the U.S. Is Rising Most Rapidly

Among Asians, Pew Research Center, July 12, 2018,

found at https://www.pewresearch.org/socialtrends/2018/ 07/12/income- inequality-in-the-u-s-is rising- most-rapidly-among-asians/ ......................... 11

Key Facts about Asian Americans, a Diverse and

Growing Population, Pew Research Center (April

21, 1921), found at https://www .pewresearch.

org/fact -tank/2021/04/29/key -facts-about-asianamericans/ ................................................................. 11

Lowell High School / Lottery Based Admissions,

Wikipedia, found at https://en.wikipedia.org/

wiki/Lowell_ High_ School_(San_Francisco) ........... 23

Negative Action Against Asian Americans: The

Internal Instability Of Dworkin’s Defense Of

Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 36

(Winter 1996) ..................................................... 22 n. 7

Page Act of 1875, Wikipedia, found at

https://en.wikipedia. org/wiki/Page_Act_of_1875 .... 17

SF Police Data Shows 567% Increase In Reports Of

Hate Crimes Against Asian Americans, The

Guardian (Jan. 26, 2022), found at https://www.

theguardian. com/us-news/ 2022/jan/26 /san francisco-increase- hate-crime-anti-asian-aapi ....... 13

SFNAACP Fails Black Students, Critical Rice

Theory (Dec. 22, 2021), found at https://dianey.

substack.com/p/sfnaacp-fails-black-students?s=w .. 24

Surge in Anti-Asian Hate Crimes Raises Fears, Daily

Bulletin, March 5, 2021, found at

https://www.dailybulletin. com/2021/03/05/surge-inanti-asian-hate-crimes-raises-fears-in-southerncalifornia/ .................................................................. 13

Tape v. Hurley, Aftermath, found at

https://en.wikipedia.org/wiki/ Tape_v._Hurley ........ 19

The Assault On Meritocracy Helps No One (Orange

County Register, June 3, 1921) found at

https://www.ocregister.com/2021/06/ 03/the- assaulton-meritocracy- helps-no-one/ .................................. 27

The Founding Fathers Made Our Schools Public. We

Should Keep Them That Way, The Washington Post

(Aug. 20, 2017) found at https://www.

washingtonpost.com/news/ made-by-history/

wp/2017/ 08/20/early-america-had-school-choice-thefounders-rejected-it/?utm_term=.815adf5587ba ..... 19

Thomas Jefferson high School Escaped The Supreme

Court — And Others Are Eager To Follow, Politico

(2/23/2024), found at https://www.politico.com/

news/2024/02/23/race-in-school-admissions-legalbattles-supreme-court-00142980.............................. 24

U.S. Antisemitic Incidents Soared 140 percent in

2023 – Breaking All Previous Records, ADL

(4/15/2024), found at https://www.adl.org/resources

/press-release/ us-antisemitic -incidents- soared140-percent -2023-breaking-all-previous ............ 22-23

U.S. Commission on Civil Rights 2023 Statutory

Enforcement Report, found at https://www.usccr.

gov/files/2023-10/fy-2023-se-report.pdf ............... 12-13

THE INTEREST OF AMICI CURIAE 1

This case involves use of zip code block quotas as

proxies for race in school admissions, to reduce

enrollment of Asian American and white students at

Boston’s “Exam Schools,” attempting to circumvent

this Court’s recent decision in Students for Fair

Admissions v. Harvard College (“SFFA”), 600 U.S.

181, 143 S. Ct. 2141 (2023), that banned use of race.

Amici Curiae and their constituents, Americans

of predominantly Asian ethnic descent. believe it is

vitally important that this Court grant certiorari to

clarify that schools cannot evade equal protection by

utilizing “race-neutral” proxies to unequally burden

targeted ethnic groups.

Asian Americans have historically faced

persecution. In education, they were subjected to

egregious discrimination for almost as long as Asians

have been in America. At many selective schools,

admissions processes denied them equal access to

opportunity. Many of Amici’s constituents have

children who were denied entrance to or who may

one day aspire to attend the Exam Schools or other

selective institutions with similar discriminatory

practices.

1 No counsel for a party authored this brief in whole or in part,

nor did any person or entity, other than amici or their counsel,

make a monetary contribution intended to fund the preparation

or submission of this brief. Amici Curiae have timely provided

notice of their intent to file this brief to counsel for all parties.

Issues raised by this case are particularly

poignant as the Asian American community is

experiencing a pandemic of race-based violence, with

vulnerable members, including the elderly and

children, viciously attacked and even murdered in

the streets of American cities. These horrific attacks

are often carried out using the same rationales

applied to justify discrimination in education—that

Asian Americans are “other,” “overrepresented,” and

not “diverse.”

The Asian American Coalition for Education

(“AACE”) is an apolitical, non-profit, national

alliance, devoted to promoting equal rights for Asian

Americans in education and education-related

activities. The leaders of AACE and its supporting

organizations are Asian American community

leaders, business leaders and, most importantly,

parents. They are not professional “civil rights

advocates” and do not get funding from large

corporations or foundations, but were forced to

become civil rights advocates to expose and prevent

discrimination that the “professionals” ignore and

facilitate. In this amici filing, AACE represents the

81 organizations listed in Appendix A hereto. More

information

AACE

can

found

http://asianamericanforeducation.org.

The Asian American Legal Foundation (“AALF”),

a non-profit organization based in San Francisco,

was founded in 1994 to protect the civil rights of

Asian Americans. AALF focuses on situations where

Asian Americans are discriminated against for a

purportedly benign purpose and where high profile

groups deny that discrimination even exists.

Members of AALF were instrumental in the struggle

to end discrimination against Chinese American

students in San Francisco’s public school system. See

Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854

(9th Cir. 1998). AALF has consistently championed

equal protection for Asian Americans, and all

Americans. More information on AALF can be found

at http://www.asianamericanlegal.com.

The Friends of Lowell Foundation (“FOLF”) is a

non-profit organization formed by Lowell High

School (San Francisco) alumni to protect and

preserve their alma mater as an alternative, magnet

public school with admissions determined by

academic merit. In 2021, FOLF was among the

organizations that successfully challenged the San

Francisco Board of Education’s replacement of

Lowell’s long-standing merit-based admissions with

a racially-motivated, unfair lottery. This lottery had

been justified as a “race-neutral” means to make

Lowell more “diverse.” In addition to advocating for

merit-based admissions, FOLF works to improve

educational opportunities for younger children to

prepare them to apply to and excel at rigorous

schools like Lowell. More information on FOLF can

be found at https://www.friendsoflowell.org/.

Amici Curiae ask this Court to hear their

arguments in support of Petitioner.

SUMMARY OF ARGUMENT

Amici Curiae are appalled that lower courts have

approved an admissions plan deliberately created to

use zip code block quotas to reduce Asian American

and white enrollment at Boston’s three selective

Exam Schools.

While the stated goal of the Boston Schools

Committee (“BSC”) was to increase “diversity,”

communications and statements of board and

committee members reveal the racial animus

underlying the new admissions plan, much of it

directed against Asian Americans. The message sent

by school officials throughout was that Asian

Americans are “overrepresented” and lacking in

“diversity”—sentiments that have historically caused

immense suffering to Asian Americans.

Discrimination is not excused just because it

purportedly benefits blacks instead of whites.

Targeting Asian Americans is particularly unfair,

given America’s historical bigotry toward this

group—often rationalized by depicting them as

featureless members of a “yellow horde,” lacking the

human

attributes

other

Americans,

“overrepresented” and not deserving to be treated as

individuals. It is sad to see Asian Americans again

subjected

negative

stereotyping

and

discrimination, and in Boston, a city that was

instrumental in the founding of this nation and

establishment of its constitutional principles.

The pernicious view that Asian Americans are

“overrepresented” non-contributors to diversity at

selective schools is unfortunately ubiquitous across

the nation. It causes real and tangible harm,

resulting in Asian American children being excluded

from educational opportunities, causing them to feel

a sense of inferiority, anger, and hopelessness in

their academic endeavors, knowing they will face

additional hurdles because of their ethnicity. It has

also led to increased discrimination and violence

against members of the Asian American community,

including children.

America exists in a competitive world. If we are

to retain our leading position we need to place more

emphasis on merit, not less. Attempts to destroy the

academic nature of selective high schools in the name

of collectivist “equity” are not only unconstitutional,

they are misguided in terms of those they purport to

help. Deficiencies in K-8 education should be

addressed, but they cannot be remedied by racially

balancing academic high schools—something that

will only serve to destroy academic schools, depriving

Americans of all ethnicities of a valuable public

resource.

If the BSC’s use of proxies to achieve a desired

racial result is allowed to stand, this type of

discrimination will be emulated across the nation,

ushering in decades of further racial strife and

division in our schools. It is therefore of utmost

importance that this Court grant certiorari so that it

can clarify the constitutional principles that are

under attack.

ARGUMENT

IT IS VITAL THAT THIS COURT

EXAMINE BOSTON’S USE OF PROXIES

THAT FORCE ASIAN AMERICAN AND

WHITE APPLICANTS TO ACHIEVE

HIGHER STANDARDS FOR ADMISSION

THAN APPLICANTS OF OTHER RACES.

Amici and their constituents are outraged and

horrified that lower courts have allowed Boston to

use thinly-disguised zip code proxies to place an

unequal burden on Asian and white applicants who

aspire to attend the city’s prestigious “Exam

Schools.” By tailoring a quota system using zip code

blocks, BSC has taken advantage of Boston’s

neighborhood racial demographics to require

students from predominantly Asian American and

white neighborhoods to attain a significantly higher

GPA for admission than students from black and

Hispanic neighborhoods.2 This Court has rightly

Citing perceived “overrepresentation” of Asian and white

Americans, the BSC adopted an admissions plan using zip codes

as proxies for race, then, following public disclosure of the racial

animus underlying the plan, adjusted it to a system

emphasizing socioeconomic status. See Boston Public Schools

Sued over Alleged Race-Based Admissions, Breitbart (June 13,

2022), found at https://www.breitbart.com/education /2022/06/13

/boston-public-schools-sued-over-alleged-race-based-admissions/

(last visited 5/5/2024).

called racial distinctions “odious” and “invidious in

all contexts.” See SFFA, 143 S. Ct. at 2162, 2166

(citations omitted). That same rule should apply

here, where racial proxies are used.

The ostensible justification for the new

admissions plan was that it would produce student

bodies better reflecting the racial makeup of the city.

However, racial balancing is something this Court

has long taught is forbidden. “We have many times

over reaffirmed that ‘[r]acial balance is not to be

achieved for its own sake.’” Parents Inv. In Comm.

Sch. v. Seattle School No. 1, 551 U.S. 701, 127 S. Ct.

2738, 2757 (2007) (citing cases). Similarly, it was

wrong for the courts below to reason that there is no

equal protection violation because under the plan

total Asian and white enrollment is not below these

groups’ “share” of the applicant pool. As this Court

has explained, “the Constitution protect[s] persons,

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

U.S. 200, 227 (1995). Here, it is undeniable that the

plan was adopted to reduce their enrollment by

forcing individual Asian American and white

applicants to have higher GPAs than others to gain

admission.

The admissions plan was deliberately crafted to

reduce perceived “overrepresentation” of Asian

American and white students at Boston’s exam

schools. App. 72a. The plan “demeans the dignity and

worth” of these students by judging them by ancestry

instead of by their “own merit and essential

qualities.” Rice v. Cayetano, 528 U.S. 495, 517 (2000).

The plan should not escape scrutiny just because it

uses proxies to accomplish its discriminatory

purpose. The situation is analogous to that in Yick

Wo v. Hopkins, 118 U.S. 356 (1886), where, more

than a century ago, this Court found that San

Francisco’s laundry licensing ordinance, even though

it did not mention race, was deliberately crafted to

target

Chinese

Americans

and

therefore

unconstitutional:

Though the law itself be fair on its face

and impartial in appearance, yet, if it is

applied and administered by public

authority with an evil eye and an

unequal hand, so as practically to make

unjust and illegal discriminations

between

persons

similar

circumstances…the denial of equal

justice is still within the prohibition of

the Constitution.

Id. at 373-74. Here also, a school district should not

be allowed to practice racial discrimination just

because it does so using proxies “fair” and “impartial

in appearance” to accomplish the discrimination.

II.

THE ADMISSIONS PLAN WAS ROOTED

IN EVIDENCED RACIAL ANIMUS, AND

DESIGNED TO LOWER ASIAN

AMERICAN AND WHITE ENROLLMENT.

It is beyond dispute that the admissions plan was

designed to lower Asian American and white

enrollment. Without even a pretense of impartiality,

the Working Group convened by BPS was co-chaired

by the President of the NAACP’s Boston chapter,

with a declared agenda of racial balancing. See Exam

Schools Admissions Task Force, found at

https://www. bostonpublicschools.org/ domain/2931

(last visited 5/15/2024). A stated goal of the “BPS

Racial Equity Planning Tool” utilized was to “Work

towards an admissions process that will support

student enrollment at each of the exam schools such

that it better reflects the socioeconomic, racial and

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

of Boston.” ASE01755.3 BSC member Lorna Rivera

stated, “[W]e do need to just, you know, be explicit

about racial equity, and we do need to figure out

again how we could increase those admission rates,

especially for Latinx and Black students.” App. 76a,

n. 21.4 BSC Vice-Chairperson Oliver-Davila’s stated,

“I want to see those schools reflect the District.

There’s no excuse, you know, for why they shouldn’t

3 Citations in the form “ASE_____” are to Bates Numbers of the

Joint Agreed Statement of Facts exhibits, see First Circuit

appendix.

4 Citations to “App.” are to the Petitioner’s Appendix.

reflect the District, which has a larger Latino

population and black African American population.”

App. 77a; ASE00490; see ASE01323 (Working Group

chart showing anticipated shift in racial balances).

That the Plan was fueled by anti-Asian animus

was amply demonstrated by the Plan’s proponents,

including BSC chair Michael Loconto, who, at the

October 21, 2020 meeting approving the Plan, was

caught by a “hot mike” making anti-Asian slurs. See

Boston School Committee Chair Resigns After

Outrage Over His Mocking Of Asian American

Names,

located at https://www.wbur.org/ edify/

2020/10/22/loconto-mocking-resigns

(last

visited

4/1/2021); App. 62a (“The School Committee

Chairperson made racist comments publicly during

the October 21, 2020 meeting directed at Boston’s

Asian American communities . . . ”)

Given

the

race-balancing

agenda

and

demonstrated racial animus, this Court should grant

certiorari to examine the admissions plan under

strict scrutiny, something that the courts below

failed to do. See Johnson v. California, 543 U.S. 499,

505 (2005) (“We have insisted on strict scrutiny in

every context…”)

III.

ASIAN AMERICANS ARE DIVERSE AND

CONTRIBUTE SIGNIFICANTLY TO

DIVERSITY.

Underlying the racial animus displayed by BSC

was the sentiment that Asian Americans did not

contribute to diversity at the Exam Schools. That

could not be more wrong. “Asian Americans trace

their roots to more than 20 countries in East and

Southeast Asia and the Indian subcontinent, each

with unique histories, cultures, languages and other

characteristics.” Abby Budiman & Neil G. Ruiz, Key

Facts about Asian Americans, a Diverse and Growing

Population, Pew Research Center (April 21, 1921),

found at https://www. pewresearch. org/fact -tank/

2021/04/29/key-facts-about- asian-americans/ (last

visited 5/6/2024).

Among each of these “Asian” countries (and their

American descendants), are further racial, dialect

and other distinctions, multiplying the diversity even

more. Between each of these many “Asian” subgroups

there is considerable variance in terms of educational

tradition; and within each, as might be expected,

there are extreme differences in family background

and resources. Indeed, Asian Americans have the

highest income inequality of any racial group in the

United States. See Income Inequality in the U.S. Is

Rising Most Rapidly Among Asians, Pew Research

Center, July 12, 2018, found at https:// www.

pewresearch .org/social- trends/2018/ 07/12/incomeinequality-in-the-u-s-is -rising- most-rapidly-amongasians/ (last visited 5/6/2024).

Thus, by any reasonable measure, Asian

Americans contribute significantly to diversity. It is

ridiculous to suggest otherwise.

IV.

THE MESSAGE THAT ASIAN

AMERICANS ARE “OVERREPRESENTED” FUELS HOSTILITY

AND VIOLENCE AGAINST MEMBERS OF

THIS GROUP.

As this Court has warned, unless reserved for

remedial settings, governmental use of race “may in

fact promote notions of racial inferiority and lead to a

politics of racial hostility.” Richmond v. J. A. Croson

Co., 488 U. S. 469, 493-94 (1989). That is what is

happening in the schools and streets of American

cities today.

We are presently experiencing a multi-year trend

in which schools and institutions at all levels depict

Asian Americans as “overrepresented” and seek ways

to reduce their numbers. This has fueled resentment

and an upsurge in violence against members of this

historically disadvantaged minority group.

[A]nti-Asian hate crimes rose 164

percent in 16 of the largest cities and

counties in the first quarter of 2021

compared to the same period in 2020.

BJA wrote that the first quarter

increases in 2021 followed a “historic

surge” in anti-Asian hate crimes that

started in 2020, with anti-Asian hate

crimes increasing 149 percent in 16 of

the largest cities in 2020.

U.S. Commission on Civil Rights 2023 Statutory

Enforcement Report, found at https://www.usccr.

gov/files/2023-10/fy-2023-se-report.pdf (last visited

5/7/2024); see Anti-Asian Hate Crimes Rose 73% Last

Year, Updated FBI Data Says, NBCNews (Oct. 25,

2021), found at https://www. nbcnews.com/news/

asian-america/anti-asian- hate-crimes- rose-73-lastyear- updated- fbi- data-says -rcna3741 (last visited

5/5/2024); Anti-Asian Hate Crimes Increased 339

Percent Nationwide Last Year, Report Says,

NBCNews (Jan. 31, 2022), found at https://www.

nbcnews.

com/news/asian-america/anti-asian-hatecrimes-increased-339-percent- nationwide -last-yearrepo-rcna14282 (last visited 5/5/2024). Surge in AntiAsian Hate Crimes Raises Fears, Daily Bulletin

(March 5, 2021), found at https://www. dailybulletin.

com/ 2021/03/05/surge-in -anti-asian- hate-crimesraises-fears -in-southern- california/ (last visited

5/5/2024).

Increased hostility toward Asian Americans has

particularly been felt in San Francisco, California,

ironically the center of historical anti-Asian racism.

See Hate Crimes Against Asian Americans Are on the

Rise, Time (Feb. 18, 2021), found at https://

time.com/5938482/asian-american-attacks/

(last

visited 5/5/2024); SF Police Data Shows 567%

Increase In Reports Of Hate Crimes Against Asian

Americans, The Guardian (Jan. 26, 2022), found at

https://www. theguardian. com/us-news/ 2022/jan/26

/san -francisco-increase- hate-crime-anti-asian-aapi

(last visited 5/5/2024).

In a strange inversion, noteworthy in this case

where both Asian and white Americans were

targeted, discrimination against Asian Americans in

school admissions is increasingly justified by the

accusation that “Asian American students ‘benefit

from white supremacy’ and ‘proximity to white

privilege.’” See DOE-Sponsored Group Said Asians

Benefit From White Privilege, New York Post (May

26, 2019), found at https://nypost.com/2019/

05/26/doe-may- have-claimed-asian- students-benefit

-from-white-supremacy/ (last visited 5/5/2024).

The stereotyping of “Asians” as deficient in

ordinary human qualities and “overrepresented,”

undoubtedly plays a role in the hostility,

unprecedented in modern times, toward Asian

Americans. That same unfortunate—and racist—

sentiment, which ignores that individual rights are

at stake, is demonstrated by what transpired at

Boston’s Exam Schools.

THE RATIONALE USED TO JUSTIFY

DISCRIMINATION IN BOSTON ECHOES

THE REPELLANT STEREOTYPES

HISTORICALLY USED TO JUSTIFY

DISCRIMINATION AGAINST ASIAN

AMERICANS.

Throughout Much of America’s

History, Discrimination Against

and Persecution of Asian

Americans Was the Shameful Norm.

The attitude that Asian Americans are

“overrepresented” and not contributors to “diversity”

evokes the stereotypes historically used to justify

discrimination against Asian Americans, when they

were marginalized as somehow lacking in ordinary

human qualities and denied opportunities open to

others. See, e.g., Charles McClain, In Search of

Equality (Univ. of Cal. Press 1994); Elmer Clarence

Sandmeyer, The Anti-Chinese Movement in

California (Univ. of Ill. Press 1991); Victor Low, The

Unimpressible Race (East/West Publishing Co. 1982).

While Asian American immigrants were drawn

to the United States by its promise of a better life, all

too often they found only hardship and the dangerous

work that nobody else wanted. Their treatment was

so dismal it gave rise to the expression “a

Chinaman’s Chance,” a term meaning, “Little or no

chance at all; a completely hopeless prospect.” The

Free

Dictionary,

found

https://idioms.

Thefreedictionary.com/Chinaman%27s+chance (last

visited 5/2/2024).5

Historical court cases in which Asian Americans

struggled for equal treatment provide a record of

discrimination that is tragic, outrageous and

impossible to refute.

In 1854, in People v. Hall, 4 Cal. 399, 404-05

(1854), the California Supreme Court invalidated the

testimony of Chinese American witnesses to a

murder, explaining that Chinese were “a distinct

people . . . whose mendacity is proverbial; a race of

people whom nature has marked as inferior, and who

are incapable of progress or intellectual development

beyond a certain point, as their history has shown;

differing in language, opinions, color, and physical

conformation; between whom and ourselves nature

has placed an impassable difference.”

In Ho Ah Kow v. Nunan, 12 F. Cal. 252 (C.C.D.

Cal. 1879) (No. 6,546), a district court invalidated

San Francisco’s infamous “Queue Ordinance” on

equal protection grounds.

In In re Ah Chong, 2 F. 733 (C.C.D. Cal. 1880),

the court found unconstitutional a law forbidding

Chinese Americans from fishing in California waters.

In In re Tiburcio Parrott, 1 F. 481 (C.C.D. Cal.

1880), the court declared unconstitutional a provision

5 There are various explanations for the origin of this phrase.

“One is that they were given the most dangerous jobs, such as

setting and igniting explosives. Another is that judges and

juries routinely convicted Chinese defendants on the flimsiest of

evidence. A third is that Chinese miners were allowed to work

gold claims only after others had taken the best ore.” Id.

of California’s 1879 constitution that forbade

corporations and municipalities from hiring Chinese

Americans.

In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the

Supreme Court ruled that Chinese were “persons”

under the Fourteenth Amendment and could not be

singled out for unequal burden under a San

Francisco laundry licensing ordinance.

In In re Lee Sing, 43 F. 359 (C.C.D. Cal. 1890),

the court found unconstitutional the “Bingham

Ordinance,” which had mandated residential

segregation of Chinese Americans.

In United States v. Wong Kim Ark, 169 U.S. 649

(1898), the Supreme Court ruled that a Chinese

American boy, born in San Francisco, could not be

prevented from returning to the city after a trip

abroad.

The Page Act and Chinese

Exclusion Act.

The Page Act of 1875 was the first restrictive

federal immigration law, and effectively barred the

entry of Chinese women to the United States under

the guise of preventing prostitution. See Page Act of

1875, Wikipedia, found at https://en.wikipedia.

org/wiki/Page_Act_of_1875 (last visited 5/15/2024.) In

1882, in an even more extraordinary attack on equal

protection, Congress passed the Chinese Exclusion

Act, a law enacted to prevent an entire ethnic group

from immigrating to the United States. See Chinese

Immigration and the Chinese Exclusion Acts, found

https://history.

state.gov/

milestones/18661898/chinese-immigration (last visited 5/15/2024). As

aptly described by opponent Republican Senator

George Frisbie Hoar, it was “nothing less than the

legalization of racial discrimination.” Id.

It was not until 1943, when China was an ally in

the war against the Empire of Japan, that the United

States finally repealed the Chinese Exclusion Act.

Id.

World War II Internment of

Japanese American Families.

An egregious modern attack on the constitutional

rights of Asian Americans occurred during World

War II, when entire families of Japanese Americans

were removed from their West Coast homes and

placed in internment camps.6 Supported by the

statements of authorities who declared the measure

necessary to national security, the internment of

Americans in concentration camps on American soil

was allowed by the courts. See Hirabayashi v. United

States, 320 U.S. 81 (1943). Only decades later was it

Executive Order No. 9066, issued February 19, 1942,

authorized the Secretary of War and military commanders “to

prescribe military areas from which any persons may be

excluded as protection against espionage and sabotage.”

Congress enacted § 97a of Title 18 of the United States Code,

making it a crime for anyone to remain in restricted zones in

violation of such orders. Military commanders then issued

proclamations excluding Japanese Americans from West Coast

areas and sending them to internment camps. See Korematsu,

584 F. Supp. at 1409.

acknowledged there had been no justification for this

abrogation of constitutional rights. See Korematsu v.

United States, 584 F. Supp. 1406, 1416-20 (N.D. Cal.

1984) (motivation was “racism” and “hysteria,” not

“military necessity”); Hirabayashi v. United States,

828 F.2d 591 (9th Cir. 1987).

The Disgraceful History of

Discrimination Against Asian

Americans in Education.

After the 1776 Revolution, Americans agreed

with Thomas Jefferson “that the future of the

republic depended on an educated citizenry” and that

universal public education should be provided to all

children. Johann N. Neem, The Founding Fathers

Made Our Schools Public. We Should Keep Them

That Way, The Washington Post (Aug. 20, 2017),

found

https://www.washingtonpost.com/news/

made-by-history /wp/2017/08/20/early- america-hadschool-choice-the-founders-rejected-it/ (last visited

5/15/2024). Alas, that noble sentiment did not extend

to Asian American children, who were often denied

access to public education.

In Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885), it

took a court battle to force San Francisco schools to

admit a Chinese American girl denied entry because,

as stated by the State Superintendent of Public

Instruction, public schools were not open to

“Mongolian” children. McClain, supra, at 137. In

response to the ruling, the California legislature

authorized the establishment of separate “Chinese”

schools: “When such separate schools are established,

Chinese or Mongolian children must not be admitted

into any other schools.” See Tape v. Hurley,

Aftermath, found at https://en.wikipedia.org/wiki/

Tape_v._Hurley (last visited 5/15/2024.) Chinese

American schoolchildren were restricted to those

schools until well into the twentieth century. Ho, 147

F.3d at 864.

Asian American schoolchildren were among the

first victims of the “separate-but-equal” doctrine

created in Plessy v. Ferguson, 163 U.S. 537 (1896).

The Court created the doctrine in a case where a

black passenger attempted to board a “white” railway

car. Id. In 1902, in Wong Him v. Callahan, 119 F.

381 (C.C.N.D. Cal. 1902), this doctrine was applied to

schools when a court ruled that Chinese American

children in San Francisco could be barred from

“white” schools because the “Chinese” school in

Chinatown was “separate but equal.”

In Gong Lum v. Rice, 275 U.S. 78 (1927), the

Supreme Court affirmed that the separate-but-equal

doctrine applied to K-12 schools, finding that a nineyear-old Chinese American girl in Mississippi could

be denied entry to the local “white” school because

she was a member of the “yellow” race. Id. at 87.

In Ho v. San Francisco Unified Sch. Dist., 147

F.3d 854, a striking modern example of discrimination against Asian Americans, constituents of

Amici Curiae were forced to engage in five years of

vigorous litigation to end the San Francisco school

district’s policy of assigning children to K-12 schools

based on their race. See id.; San Francisco NAACP v.

San Francisco Unified. Sch. Dist., 59 F. Supp. 2d

1021 (N.D. Cal. 1999). This was the first instance in

American history where Asian Americans challenged

allegedly “benign” racial discrimination.

The Ho case was particularly ironic as just a few

decades earlier, in Lee v. Johnson, 404 U.S. 1215,

1215-16 (1971), Supreme Court Justice Douglas,

recognizing the long history of discrimination against

Asian Americans in education, wrote: “Historically,

California statutorily provided for the establishment

of separate schools for children of Chinese ancestry.”

Id. “That was the classic case of de jure segregation

involved [and found unconstitutional] in Brown v.

Board of Education [347 U.S. 483 (1954)]. . . ” Id.

“Brown v. Board of Education was not written for

blacks alone. It rests on the Equal Protection Clause

of the Fourteenth Amendment, one of the first

beneficiaries of which were the Chinese people of San

Francisco.” Id.

Unfortunately, the same discriminatory intent is

alive today, now cloaked as a striving for collective

“equity” and skin-deep “diversity.”

VI.

THE BOSTON ADMISSIONS PLAN IS

PART OF AN ACTIVIST “RACIAL

EQUITY” MOVEMENT THAT SEEKS

UNCONSTITUTIONALLY TO IMPOSE

EQUAL RESULTS AMONG RACIAL

GROUPS AT MERIT-BASED SCHOOLS.

The present racial balancing trend finds its roots

in the quota system that Harvard College

maintained for Jews during the first half of the 20th

century. Beginning in the 1920s, Harvard and other

prominent colleges reacted to the perceived “overrepresentation” of Jews in their student bodies by

imposing quotas for applicants of the Jewish faith

that persisted through the 1950s. See Evan P.

Schultz, Group Rights, American Jews, and the

Failure of Group Libel Laws, 66 Brook. L. Rev. 71,

111-12 (Spring 2000); Alan M. Dershowitz and Laura

Hanft, Affirmative Action and the Harvard College

Diversity-Discretion Model: Paradigm or Pretext, 1

Cardozo L. Rev. 379, 385-399 (1979).

In another current irony, the present disrespect

for law and polarization caused by discrimination

cloaked as “racial equity,” in addition to causing

violence against Asian Americans, is also a factor

encouraging renewed antisemitism at Harvard and

other campuses and in the streets. See U.S.

Antisemitic Incidents Soared 140 percent in 2023 –

Breaking All Previous Records, ADL (4/15/2024),

found at https://www.adl.org/resources /press-release/

us-antisemitic -incidents- soared- 140-percent -2023breaking-all-previous (last visited 5/15/2024).

The legacy of Harvard’s racial balancing remains

with us today, at all levels of education.7 The

situation at Boston’s Exam Schools is similar to what

has been happening to other selective public high

schools nationwide, where proponents of racial

balancing seek to eliminate merit-based admissions

systems that have been in place for generations.

● San Francisco’s Lowell High School. First

voting to halt consideration of test scores and grades

as a “temporary” Covid measure, the San Francisco

School Board then voted to make the change

permanent. “On February 9, 2021, the Board ...

made that change to a lottery-based system

permanent, citing ‘pervasive systemic racism’ and

the school's lack of diversity as reasons.” See Lowell

High School / Lottery Based Admissions, Wikipedia,

found at https://en.wikipedia.org/wiki/Lowell_ High_

School_(San_Francisco) (last visited 5/15/2024). Two

years later, after plummeting student performance

and a recall of three board members, merit-based

admission was re-instated—at least for now. Id.

The arguments supporting historical and modern-day racial

balancing schemes are virtually identical. “President Lowell of

Harvard called [the Jewish quota] a ‘benign’ cap, which would

help the University get beyond race.” Jerry Kang, Negative

Action Against Asian Americans: The Internal Instability Of

Dworkin’s Defense Of Affirmative Action, 31 Harv. C.R.-C.L. L.

Rev. 1, 36 (Winter 1996).

In San Francisco, as in Boston, proponents of

racial balancing seek to increase “diversity” by

limiting Asian American enrollment. However, far

from discriminating against anyone, Lowell, like

Boston’s Exam Schools, reached across racial and

socioeconomic lines to enable children of all

backgrounds to excel in a public school environment

open to all:

Lowell’s merit-based admissions did not

consider (much less discriminate based

on) race. To get into Lowell, a student

needed

only

attend

school

consistently, do their assigned work,

and study enough to achieve good

grades and pass their proficiency exams.

All of that can be accomplished by

students of any race.

Diane Yap, SFNAACP Fails Black Students, Critical

Rice Theory (Dec. 22, 2021), found at https://

dianey.substack.com/p/sfnaacp-fails- black-students

(last visited 5/15/2024).

● New York’s Specialized High Schools. New

York’s eight selective specialized high schools come

under perennial attack, always fueled by the

accusation that Asian Americans and whites are

“overrepresented.” See Expelling Asian Americans

From Top Schools Proves NYC Education Is Off The

Rails, New York Post, May 3, 2021), found at

https://nypost.

com/2021/05/03/

expelling-asian-

americans-from- top-schools-proves- nyc-educationis-off-the-rails/ (last visited 9/11/2023). “Anti-Asian

violence in New York right now is more than random

street-corner sucker punches and terrifying subway

shoves. It’s also the deliberate disassembly of

meritocratic public education under the guise of

ethnic equity…” Id.

● Thomas Jefferson High School, Virginia.

With the goal of mirroring the racial “diversity” of

Northern Virginia, the Fairfax County School Board

adopted an admission plan that scrapped the

entrance exam, capped admission from each middle

school at 1.5%, and gave bonus points for “Experience

Factors.” See Thomas Jefferson high School Escaped

The Supreme Court — And Others Are Eager To

Follow, Politico (2/23/2024), found at https://www.

politico.com/news /2024/02/23/ race-in- schooladmissions -legal-battles- supreme-court-00142980

(last visited 5/16/2024). There, as in Boston, the

admissions plan was crafted to reduce Asian

American enrollment using proxies, and the message

sent by school officials was that Asian Americans

were “overrepresented” and lacking in “diversity.”

Unless the present political trend of elevating

skin-deep diversity over individual merit is stopped,

it will lead to the elimination of all public academic

high schools. That would destroy a vital public

resource, leaving only the wealthy with access to

academic enrichment.

VII.

ELIMINATING OBJECTIVE CRITERIA

FOR ADMISSION TO MAGNET

SCHOOLS BENEFITS NO ONE, AND

WILL ONLY PERPETUATE RACIAL

DIVISIONS WHILE UNDERMINING

AMERICA'S COMPETITIVENESS.

Common sense should tell us that if some ethnic

groups are “underrepresented” at an academic high

school where admission is based on grades and test

scores, racially balancing enrollment is not going to

fix the underlying K-8 educational deficiencies; it will

only result in an admissions policy that trammels

individual rights while obfuscating the actual

problems. Advocates of racial balancing are not using

common sense. If America is to retain its position as

the world’s technology and business leader, it must

continue to value and encourage academic

achievement. See Harvard Warns That Chinese Tech

Is Rapidly Overtaking American Capabilities, The

Byte, found at https://futurism. com/the-byte/

harvard-report-china-tech (last visited 5/5/2024). “’In

some races, [China] has already become No 1,’ reads

the report. ‘In others, on current trajectories, it will

overtake the US within the next decade.’” Id.

China’s recent history furnishes a cautionary

example illustrating the danger in elevating

politicized “equity” over merit. “During China’s

Cultural Revolution, Chinese dictator Mao Zedong

abolished China’s college entrance exam in order to

bring “class equity” to workers, peasants, and

soldiers.” Yukong Zhao, The Assault On Meritocracy

Helps No One (Orange County Register, June 3,

1921) found at https://www.ocregister.com/2021/06/

03/the- assault- on-meritocracy- helps-no-one/ (last

visited 5/5/2024). “After destroying meritocracy,

China educated millions of revolutionaries who could

not conduct research or manage enterprises.” Id. “As

a consequence, China’s technological innovation

stalled, and its economy rapidly collapsed.” Id. “In

1977, Chinese leader Deng Xiaoping wisely restored

meritocracy [including] the college entrance exam.”

Id. “Since then, China has rapidly become a global

superpower in technological innovation.” Id.

America was founded on the principle of

meritocracy. While some proponents of racial

balancing want to pretend that in education only

Asian Americans still believe in meritocracy, in fact

that is not so, as shown by a Pew Research Center

poll. “The survey . . . asked more than 10,000

respondents what factors should matter for college

admissions. In a landslide, respondents favored

academic achievement over race and gender.”

Americans for Merit-Based Admissions, Wall Street

Journal (April 28, 2022), found at https://www.

wsj.com

/articles

/americans-for

-merit-basedadmissions -pew-research- poll-ibram- x-kendi11651181826 (last visited 5/5/2024). Nearly three of

four said race or ethnicity should not be a factor in

admissions. That included 59% of blacks, 68% of

Hispanics, 63% of Asians and 62% of Democrats. Id.

Educational deficiencies in elementary and

middle school education should certainly be

addressed. All children, of whatever ethnicity,

deserve to be nurtured, educated and guided toward

academic success. Racial politics in high school

admissions is not the answer. Addressing early

educational deficiencies requires real work, as well

as honesty in confronting the true problems—

including rampant truantism and lack of parental

involvement. While Boston is enviably placed in

terms of resources for doing the necessary work

compared to many cities, there are also nongovernmental resources that can be utilized. See e.g.,

Matt Zalasnick, How Colleges Partner With K-12 On

Student Success, University Business (Oct. 17, 2019),

found at https://universitybusiness.com/higher-edk12-partnerships/ (last visited 5/5/2024). If the

Boston School Committee truly wants to help K-8

children it believes are missing out on educational

opportunities, it can easily find ways to help them

that do not violate constitutional rights.

VIII. THIS COURT’S RULING IN STUDENTS

FOR FAIR ADMISSIONS DOES NOT

ADDRESS THE ISSUE PRESENTED

HERE.

This Court should grant certiorari to consider

whether a school district’s use of facially-neutral

proxies to accomplish its expressed racial goals

requires examination under strict scrutiny—an

issue not settled by the ruling in SFFA, 143 S. Ct.

2141, where this Court found use of race in college

admissions to be unconstitutional. In the

Harvard/UNC college cases, admissions officers

directly considered the race of the applicant. Id. at

2154-56. By contrast, with Boston’s Exam Schools,

proxies are used. While use of race proxies to

discriminate would also be wrong at a college, it

should be found even less permissible here, at the

grade school level. See Parents Inv. In Comm. Sch.,

127 S.Ct. at 2742.

The BSC plan using zip code proxies was

carefully designed to exploit the racial demographics

of the city, much as with race gerrymandering cases

where voting districts are drawn to dilute the effect

of black voters. In redistricting cases, “[s]trict

scrutiny applies when race is the ‘predominant’

consideration in drawing district lines…” Shaw v.

Hunt, 517 U.S. 899, 907 (1996). That same reasoning

should apply here, where race was undeniably the

predominant consideration. As this Court has stated,

“outside the districting context, statutes are subject

to strict scrutiny under the Equal Protection Clause

not just when they contain express racial

classifications, but also when, though race neutral on

their face, they are motivated by a racial purpose or

object.” Miller v. Johnson, 515 U.S. 900, 913 (1995).

IX.

THERE IS AN URGENT NEED TO

FORBID CYNICAL RACE PROXIES IF

THE EROSION OF EQUAL PROTECTION

IS TO BE STOPPED.

Following this Court’s landmark ruling in

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

local

school

boards

attempted

evade

desegregation

through

purportedly

neutral

mechanisms such as “student placement laws” and

“freedom of choice” plans. See Aftermath of Brown

v. Board of Education, Legal Information Institute,

found at https://www.law.cornell.edu/constitutionconan/amendment-14/section-1/aftermath-of-brownv-board-of-education

(last

visited

5/4/2024).

Similarly, in Boston, school officials achieved

desired racial results using facially-neutral methods

which proponents hope will evade this Court’s

recent decision in Students for Fair Admissions. If

their plan succeeds, it will be emulated at countless

schools across the nation.

If we are to avoid decades of additional

discrimination and litigation such as was caused by

the post-Brown efforts of segregationists who fought

to deny black children equal rights, this Court must

emphatically clarify, sooner rather than later, that a

school’s use of race-neutral proxies will not shield a

racially-motivated admissions program from a

skeptical inquiry under strict scrutiny. Amici implore

this Court not to let injustice fester for a day longer

than necessary.

CONCLUSION

Some 70 years ago, in Brown v. Board of

Education, 347 U.S. 483, this Court recognized the

inherent constitutional injury when schools treat

children differently because of their race; and found

that such discrimination was unlawful, whatever the

stated rationale. That same reasoning should apply

here today.

This Court should grant certiorari.

Respectfully submitted,

Lee C. Cheng

Director and Secretary

Asian American Legal

Foundation

11 Malta Street

San Francisco, CA 94131

Gordon M. Fauth, Jr.

(counsel of record)

Fauth Law Firm

66 Franklin St., Ste. 300

Oakland, CA 94607

gmf@classlitigation.com

Tel: (510) 238-9610

May 17, 2024

Counsel for Amici Curiae

APPENDIX

Table of Appendices

Appendix A (organizations represented by

Amicus AACE) ............................................. 1a-3a

Appendix A

1. 1441 Manufactured-Home Residents Association

2. 2Twenty Club

3. 80-20 Educational Foundation, Inc.

4. 80-20 Initiative DC Chapter

5. AAPI Action Group

6. Allstar Institute

7. American Hindu Coalition

8. American Lin Ze Xu Foundation, Inc

9. ASC English & ASC Aplus Program

10. Asian American Agriculture Society

11. Asian American Coalition for Education

12. Asian American Voters

13. Association for Education Fairness

14. Boston Forward Foundation

15. Bowen Capital LLC

16. Californians for Equal Rights Foundation

17. Chimerica Women Association

18. Chinese American Alliance

19. Chinese American Heritage Association Inc

20. Chinese American Parent Association of Loudoun

County (CAPA-Loudoun)

21. Chinese American Parent Association of

Montgomery County (CAPA-MC)

22. Chinese American Parent Association of

Northern Virginia (CAPA-NOVA)

23. Chinese Association of Tallahassee

24. Chinese Club of Western New York

25. Chinese Culture Society of Greater Nashua

26. Chinese Social Services Center

27. Chinese Association of Northwest Arkansas

28. Coalition For TJ

29. Community Center of Houston

30. Equal Rights for All PAC

31. First Han International Language School

32. Fujian Association of South USA

33. Gansu Chinese American Association

34. Global Children Foundation of Virginia (GCF)

35. Global Organization of People of Indian Origin

36. Global Professional Mentorship Foundation

37. Greater Los Angeles Communities Alliance

38. Hanlin Education Foundation of America

39. Harrison Chinese Association

40. Huaxia Evangelical Seminary

41. Korean American Society of Virginia

42. Korean Association of Howard County

43. Korean Association of Mongomery County

44. Korean Association of Princes Maryland

45. Korean Association of Shenandoah Valley

46. Korean Council of Washington DC

47. Korean Television Broadcast USA, Georgia

(KTB USA)

48. Law Office of Michael Lu

49. Lions Clubs International Woo Rhee Ga LLC

50. Long Island Chinese American Association

51. Lung Kong Tin Yee Association of Sacramento

52. Michigan Conservative Chinese Americans

53. Millburn Short Hills Chinese Association

54. Minnesota Chinese Association

55. NC Asian American Coalition

56. New Jersey Chinese Community Center

57. New York City Residents Alliance

58. NY Laundromat Business Association

59. Orlando Chinese Association

60. Parents Group of New York

61. Peninsula Korean Association of Virginia

62. Resources International Care of America Inc

63. San Diego Asian Americans for Equality

64. Silicon Valley Chinese Association

65. Sino-American Finance Association

66. The Greater San Antonio Chinese Chamber of

Commerce

67. The Korean American Association of Houston

68. The Korean Association of Maryland

69. Tidewater Korean Association of Virginia Korean

70. United Chinese Association of Utah

71. United Community Oriented Development

Association

72. United Cultural Association

73. Universal Chinese Culture Recovery Foundation

74. US Korean Association of Washington

75. Utah Chinese Golden Spike Society

76. Venus Chinese School

77. Washington John Baptist Church

78. Washington VA United Korean Senior Citizens’

Association

79. WEL Education Group

80. World-class Kook Ki Won World TKD Federation

81. Young Chinese American Professional

Development Association

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