Amicus Curiae Brief — Coalition for TJ, Petitioner v. Fairfax County School Board

Supreme Court briefSep 20, 2023

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No. 23-170

IN THE

___________

COALITION FOR TJ,

PETITIONER,

FAIRFAX COUNTY SCHOOL BOARD,

RESPONDENT.

______________________

On Petition for Writ of Certiorari to the

U.S. Court of Appeals for the Fourth Circuit

__________

BRIEF OF THE LIBERTY JUSTICE CENTER

AND MOMOKO TAKAHASHI AS

AMICI CURIAE IN SUPPORT OF PETITIONER

__________

September 20, 2023

M.E. Buck Dougherty III

Counsel of Record

James J. McQuaid

LIBERTY JUSTICE CENTER

440 N. Wells St., Ste. 200

Chicago, IL 60654

(312) 637-2280

bdougherty@libertyjusticecenter.org

TABLE OF CONTENTS

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

INTEREST OF THE AMICUS CURIAE ................... 1

SUMMARY OF ARGUMENT & INTRODUCTION ........................................................................... 2

ARGUMENT ............................................................... 2

I. The Court should clarify the Arlington

Heights test. ..................................................... 2

II. “Benign” discrimination should not be excused. ................................................................ 3

CONCLUSION ......................................................... 10

TABLE OF AUTHORITIES

Cases

Bishop of Charleston v. Adams,

No. 2:21-cv-1093-BHH, 2022 U.S. Dist. LEXIS

24090 (D.S.C. Feb. 10, 2022).................................... 3

Democratic Nat’l Comm. v. Hobbs,

948 F.3d 989 (9th Cir. 2020) .................................... 3

N.C. State Conf. of the NAACP v. Raymond,

981 F.3d 295 (4th Cir. 2020) .................................... 3

N.C. State Conference of the NAACP v. McCrory,

831 F.3d 204 (4th Cir. 2016) .................................... 3

New York v. United States DOC,

315 F. Supp. 3d 766 (S.D.N.Y. 2018) ....................... 3

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

No. 1,

551 U.S. 701 (2007) .................................................. 9

Students for Fair Admissions, Inc. v. President &

Fellows of Harv. Coll.,

143 S. Ct. 2141 (2023) .............................................. 4

Vidal v. Nielsen,

291 F. Supp. 3d 260 (E.D.N.Y. 2018)....................... 3

Village of Arlington Heights v. Metro. Hous. Dev.

Corp.,

429 U.S. 252 (1997) .............................................. 1, 2

Other Authorities

Abby Budiman & Neil G. Ruiz, Key Facts About

Asian-Americans, a Diverse and Growing

Population, PEW RESEARCH (Apr. 29, 2021) ............ 5

Asian Americans Then and Now, ASIA SOCIETY. .... 6, 9

iii

Barry R. Chiswick & Paul W. Miller, Linguistic

Distance: A Quantitative Measure of the Distance

Between English and Other Languages, IZA

Discussion Paper No. 1246 (Aug. 2004) .................. 5

Benjamin Chang, Asian Americans and Education,

OXFORD RESEARCH ENCYCLOPEDIA OF EDUCATION

(Feb. 2017) ................................................................ 8

Children of Asian Immigrants Reveal Sacrifices Their

Parents Made, YouTube (June 16, 2015) ................ 6

Dedrick Asante-Muhammad & Sally Sim, Racial

Wealth Snapshot: Asian Americans and the Racial

Wealth Divide, NATIONAL COMMUNITY

REINVESTMENT COALITION (May 14, 2020) .............. 8

Foreign Language Training, Foreign Service

Institute, U.S. Department of State,

https://www.state.gov/foreign-language-training/

(last visited April 26, 2022)...................................... 5

Guofang Li, Other People’s Success: Impact of the

‘Model Minority’ Myth on Underachieving Asian

Students in North America, KEDI JOURNAL OF

EDUCATIONAL POLICY, Vol 2., Issue 1, 69 (2005) ..... 5

Huizhong Wu, The Model Minority Myth: Why AsianAmerican Poverty Goes Unseen, MASHABLE

(December 14, 2015) ................................................. 8

Jingjing Xiao, For an Asian-American Family, the

Cost of Education, N.Y. TIMES (Mar. 26, 2019) ....... 6

Li Zhou, The Inadequacy of the Term “Asian

American,” VOX (May 5, 2021, 10:10 AM) ............... 7

Martin Schiere, et al., Understanding the Social

Cultural Differences Between China, Japan and

South Korea for Better Communication,

GLOCALITIES .............................................................. 7

Michael G. Peletz, Diversity and Unity, ASIA SOCIETY

.................................................................................. 9

Sahra Vang Nguyen, The Truth about ‘The Asian

Advantage’ and ‘Model Minority Myth’,

HUFFINGTON POST (Oct 14, 2015) ............................ 8

U.S. Cambodian Population Living in Poverty, PEW

RESEARCH CENTER (Sept. 8, 2017) ........................... 8

INTEREST OF THE AMICI CURIAE1

The Liberty Justice Center is a nonprofit, nonpartisan, public-interest litigation firm that seeks to protect economic liberty, private property rights, free

speech, and other fundamental rights. The Liberty

Justice Center pursues its goals through strategic,

precedent-setting litigation to revitalize constitutional

restraints on government power and protections for individual rights.

The Liberty Justice Center believes that every

American has a right to equal treatment under the

law, regardless of race, whether in education or other

sectors of society. See, e.g., Joyner v. Vilsack, 1:21-cv01089 (W.D. Tenn.) (challenging race-discriminatory

USDA program on behalf of a farmer who would be eligible for hundreds of thousands of dollars in farm

loans if not for his race); Clark v. State Public Charter

School Authority, 2:20-cv-02324-APG-VCF (D. Nev.)

(challenging public education program that identifies

plaintiff as belonging to groups characterized as “oppressive” and “wrong”); Menders v. Loudoun Cty.

School Bd., 1:21-cv-00669-AJT-TCB (E.D. Va.) (similar; applying Village of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252 (1997)).

Momoko Takahashi is a Ph.D. graduate from

Northwestern University in Evanston, Illinois.

1 Rule 37 statement: No counsel for any party authored any part

of this brief, and no person or entity other than Amicus funded its

preparation or submission. Counsel for all parties were advised

of Amicus’s intent to file this brief at least ten days prior to its

filing.

Throughout her academic career, she has faced discrimination in school admissions due to her ethnicity.

SUMMARY OF ARGUMENT & INTRODUCTION

Government discrimination against people based

on race, when race is so ill-defined to begin with, is illogical—and, in America, it’s illegal. But courts have

been inconsistent in conducting the rigorous inquiry

into discriminatory intent required by Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252 (1977).

Furthermore, although it cannot be used to justify

racial discrimination, achieving the educational benefits of diversity remains a key interest for educational

institutions – and yet, here the School Board is diminishing that interest by diminishing the size of its

Asian-American class.

ARGUMENT

The Court should clarify the Arlington

Heights test.

”Determining whether invidious discriminatory

purpose was a motivating factor demands a sensitive

inquiry into such circumstantial and direct evidence of

intent as may be available.” Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252

(1977). But courts have not been consistent in the

scope of such inquiry. Some courts use a very liberal

standard, accepting circumstantial evidence and piercing the veil of neutral explanations to find racial prejudice. See Democratic Nat’l Comm. v. Hobbs, 948 F.3d

989, 1041 (9th Cir. 2020), rev’d Brnovich v. Democratic

Nat’l Comm., 141 S. Ct. 2321 (2021) (racial discrimination in voter integrity laws); N.C. State Conference

of the NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir.

2016) (same); New York v. United States DOC, 315 F.

Supp. 3d 766, 810 (S.D.N.Y. 2018) (immigration); Vidal v. Nielsen, 291 F. Supp. 3d 260, 276 (E.D.N.Y.

2018) (same). But other times, courts decide to engage

in judicial restraint and adopt a level of deference that

Arlington Heights does not contemplate. See, e.g., N.C.

State Conf. of the NAACP v. Raymond, 981 F.3d 295,

302-03 (4th Cir. 2020) (plaintiffs must prove that legislature had “discriminatory intent,” and legislature

“must” be afforded “a presumption of good faith”);

Bishop of Charleston v. Adams, No. 2:21-cv-1093BHH, 2022 U.S. Dist. LEXIS 24090, at *29-30 (D.S.C.

Feb. 10, 2022) (plaintiff must prove both “intentional

discrimination” and “actual discriminatory effect”).

This Court should grant certiorari to clarify the Arlington Heights framework as applied to racial discrimination in school admission policies.

II.

“Benign” discrimination should not be

excused.

As Petitioner says, the aim of racial discrimination

in Fairfax County school admissions is “racial balancing – which is racial discrimination all the same.” Pet.

23. The school’s objective is to make its student body

“reflect the racial makeup of the school district.” Pet.

2. In order to do this, it has to discriminate against its

historically Asian-American student body. Pet. 2-3.

In striking down affirmative action last term, Justices on both sides of the issue agreed that attempting

to attain “the educational benefits of diversity” was a

noble goal. Students for Fair Admissions, Inc. v. President & Fellows of Harv. Coll., 143 S. Ct. 2141, 2188

(2023) (“to satisfy strict scrutiny, universities must be

able to establish an actual link between racial discrimination and educational benefits”) (Thomas, J., concurring); Id. at 2234 (racial discrimination has been authorized “in service of the educational benefits that

flow from a diverse student body”) (Sotomayor, J., dissenting); Id. at 2248 n.33 (observing that the petitioner

and its expert “agreed that valuable educational benefits flow from diversity”) (Sotomayor, J., dissenting);

Id. at 2256 (favoring increasing minority enrollment in

order to attain “the educational benefits that [the universities] seek to achieve”) (Sotomayor, J., dissenting)

(cleaned up). In sum, even though it may no longer justify raced-based discrimination in the application process, attaining the educational benefits of diversity remains an important policy.

Here, however, Fairfax County seeks to racially

discriminate to deny its student body the educational

benefits of diversity.

Asians and Asian Americans nationwide are more

likely to be foreign-born than their counterparts: 57 %

of Asian Americans, including 71% of Asian-American

adults, were born in another country, compared to only

14 percent of all Americans and 17 percent of all American adults. Abby Budiman & Neil G. Ruiz, Key Facts

About Asian-Americans, a Diverse and Growing

Population, PEW RESEARCH (Apr. 29, 2021).2 Amicus

Momoko Takahashi is one such individual: born in Japan, she moved to the U.K. before immigrating to

America as a nine-year-old. Yet despite having lived in

two more countries and speaking one more language

(Japanese, the furthest-removed language from English)3 than most of her peers, and despite her record as

a champion high school debater, she was rejected from

every non-state university she applied to as an undergraduate applicant in favor of less accomplished applicants.

Approximately one-third of Asian Americans, particularly those raised in households where English is

not spoken, lack proficiency in writing, reading, and

speaking skills. Guofang Li, Other People’s Success:

Impact of the ‘Model Minority’ Myth on Underachieving Asian Students in North America, KEDI JOURNAL

OF EDUCATIONAL POLICY, Vol 2., Issue 1, 69, 70 (2005).

Amicus Momoko Takahashi is one among many Asians

and Asian Americans who have struggled with English

as a second language, but did not receive the necessary

help in school due to being stereotyped as a supersmart Asian. Ms. Takahashi excelled in mathematics,

which apparently offset her shortcomings in other subjects in her teachers’ eyes. Her mathematics proficiency, however, was not due to her race, but rather

2 https://www.pewresearch.org/fact-tank/2021/04/29/key-facts-

about-asian-americans/.

Barry R. Chiswick & Paul W. Miller, Linguistic Distance: A Quantitative Measure of the Distance Between English and Other Languages, IZA

Discussion Paper No. 1246 (Aug. 2004), https://ftp.iza.org/dp1246.pdf;

see also Foreign Language Training, Foreign Service Institute, U.S. Department of State, https://www.state.gov/foreign-language-training/ (last

visited April 26, 2022) (Japanese is one of five “super-hard languages”

that require 2200 class hours to master).

due to the sacrifices made by her family, who believed

that school excellence was a collective effort. This is a

common experience for many Asian Americans; it is

not unusual for a student’s parents to sell their house

to finance their child’s education, leading one Asian

American to comment that “if I failed to earn scholarships[,] it would be the financial equivalent of burning

down my parents’ home.” Jingjing Xiao, For an AsianAmerican Family, the Cost of Education, N.Y. TIMES

(Mar. 26, 2019)4; see also Children of Asian Immigrants Reveal Sacrifices Their Parents Made, YouTube

(June 16, 2015)5.

Asian Americans can also bring a unique perspective on discrimination. They were, after all, the victims

of the first U.S. law to prevent immigration and naturalization on the basis of race, the Chinese Exclusion

Act of 1882. Asian Americans Then and Now, ASIA SOCIETY.6 They have also been victims of the Japanese

internment during World War II and the recent spate

of anti-Asian violence in the wake of COVID-19.

By handicapping Asian or Asian-American applicants, educational institutions are reducing students

with Chinese, Japanese, Korean, Vietnamese, Thai,

Cambodian, or Indian heritage (among others) into a

single box labeled “Asian.” Each of these distinct ethnic groups has its own language, culture, sociological

makeup, and perspective, but they are all locked into

the same box in race-based admissions programs.

4 https://www.nytimes.com/2019/03/26/well/family/for-an-asian-

american-family-the-cost-of-education.html

5 https://www.youtube.com/watch?v=k1lDX0lzhd4

6 https://asiasociety.org/education/asian-americans-then-andnow (last visited Dec. 11, 2021).

Most of those categories are self-explanatory, but

an example of a sociological difference among East

Asian cultures illustrates the point. Chinese and Koreans are more likely to adopt new technologies than

Japanese, who are more focused on potential negative

effects of new technology. Martin Schiere, et al., Understanding the Social Cultural Differences Between

China, Japan and South Korea for Better Communication, GLOCALITIES.7 And Japanese and South Koreans

are more likely to be “open-minded idealists who value

personal development and culture” than their Chinese

counterparts, who are more likely to “value family and

community.” Id.

Southeast Asians arguably have it even worse. The

very term “Asian American” tends to center on East

Asians (such as Chinese, Koreans, or Japanese) at the

expense of South Asians (Bangladeshis, Indians, Sri

Lankans) and Southeast Asians (Cambodians, Filipinos, Thai, Vietnamese). See, e.g., Li Zhou, The Inadequacy of the Term “Asian American,” VOX (May 5,

2021, 10:10 AM).8 And Southeast Asians in America

often live experiences entirely different from those of

their East Asian or non-Asian counterparts. For example, while only 12.1 percent of all U.S. Asians live in

poverty, below the U.S. average of 15.1%, that number

is 19.1 percent for Cambodians. U.S. Cambodian Population Living in Poverty, PEW RESEARCH CENTER

7 https://glocalities.com/news/understanding-the-social-cultural-

differences-between-china-japan-and-south-korea-for-bettercommunication (last visited Dec. 11, 2021).

8 https://www.vox.com/identities/22380197/asian-american-pacific-islander-aapi-heritage-anti-asian-hate-attacks.

(Sept. 8, 2017).9 Even more curiously, while a smaller

percentage of U.S.-born Asians live in poverty than

their foreign-born counterparts, that statistic is reversed for Cambodians. Id. And while Indian Americans have a median income of $100,000, Burmese

Americans have a median income of only $36,000.

Dedrick Asante-Muhammad & Sally Sim, Racial

Wealth Snapshot: Asian Americans and the Racial

Wealth Divide, NATIONAL COMMUNITY REINVESTMENT

COALITION (May 14, 2020).10 Bangladeshi and Hmong

poverty rates outstrip those of African-Americans.

Huizhong Wu, The Model Minority Myth: Why AsianAmerican Poverty Goes Unseen, MASHABLE (December

14, 2015).11 And while over 94 percent of Taiwanese

and Japanese Americans have a high school diploma,

that statistic is under 66 percent for Laotian and

Hmong Americans. Benjamin Chang, Asian Americans and Education, OXFORD RESEARCH ENCYCLOPEDIA OF EDUCATION (Feb. 2017).12 17 percent of Pacific

Islanders, 14% of Cambodian Americans, and 13 percent of Laotian and Hmong Americans have four-year

college degrees (compared to 22 percent for AfricanAmericans or 15 percent for Hispanics). Sahra Vang

Nguyen, The Truth about ‘The Asian Advantage’ and

‘Model Minority Myth’, HUFFINGTON POST (Oct 14,

2015).13

9 https://www.pewresearch.org/social-trends/chart/u-s-cambo-

dian-population-living-in-poverty/.

10 https://ncrc.org/racial-wealth-snapshot-asian-americans-andthe-racial-wealth-divide/.

11 http://mashable.com/2015/12/14/asian-american-poverty/#.UK4LnHskgqr

12 https://files.eric.ed.gov/fulltext/ED577104.pdf.

13 http://huffingtonpost.com/sahrah-vang-nguyen/the-truthabout-the-asian_b_8282830.html)

And Southeast Asians also differ among themselves. Vietnamese culture differs from Cambodian

and Lao culture, for example, in that the former has

strong Chinese influences while the latter two are

more influenced by India. Asian Americans Then and

Now, ante. And the majority of Southeast Asian countries are “home to dozens of different ethnic groups”

and have within themselves a clear geographicallybased religious divide. Michael G. Peletz, Diversity

and Unity, ASIA SOCIETY (last visited Dec. 13, 2021).14

A student from one such country’s highland areas, following a more mythological tradition, would obviously

have perspectives from those of a student from the lowlands, who would be more likely to adhere to a more

formal religion such as Islam, Buddhism, or Christianity. Id.

Fairfax County admissions systems’ rudimentary

response to this rich cultural diversity is to take geography as an indicator of diversity, call the people from

the largest continent in the world (and their American

descendants) collectively “Asian,” and disadvantage

them in their admissions process. Because they don’t

look like the average student in the school district.

That is not right. Moreover, it does not even reflect “diversity.”

“The way to stop discrimination on the basis of race

is to stop discriminating on the basis of race.” Parents

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

U.S. 701, 748 (2007) (plurality opinion). This Court

should stop allowing quota systems in school

14 https://asiasociety.org/education/diversity-and-unity.

admissions policies under the guise of diversity like

Fairfax County’s.

CONCLUSION

This Court should grant the petition for certiorari.

Respectfully submitted,