Amicus Curiae Brief — Coalition for TJ, Petitioner v. Fairfax County School Board
Supreme Court briefSep 22, 2023
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No. 23-170
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In the
Supreme Court of the United States
COALITION FOR TJ,
Petitioner,
v.
FAIRFAX COUNTY SCHOOL BOARD,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
FOURTH 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
──────────────────────────────────
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... iv
THE INTEREST OF AMICI CURIAE ....................... 1
SUMMARY OF ARGUMENT .................................... 4
ARGUMENT ............................................................... 6
I.
THE COURT SHOULD GRANT CERTIORARI
TO CONSIDER WHETHER A SCHOOL
DISTRICT MAY EVADE STRICT SCRUTINY
BY MANIPULATING FACIALLY-NEUTRAL
ADMISSIONS CRITERIA TO ACHIEVE A
DESIRED RACIAL OUTCOME. ....................... 6
A.
The New TJ Admissions Plan Was
Deliberately Crafted to Reduce Asian
American Enrollment ................................ 6
B.
The Burden of the TJ Admissions Plan
Falls Heaviest on Those Least Able to
Bear It ........................................................ 9
C.
Contrary to the School Board’s Belief,
Asian Americans Are Themselves
Diverse and Contribute Significantly to
Diversity ................................................... 10
D.
The Message that Asian Americans are
“Overrepresented” Encourages Hostility
and Violence Against this Minority Not
Only in Schools But Also in the Streets of
Our Cities ................................................. 12
ii
II.
THE RATIONALE USED TO JUSTIFY
DISCRIMINATION AT TJ ECHOS THE
REPELLANT STEREOTYPES
HISTORICALLY USED TO JUSTIFY
DISCRIMINATION AGAINST ASIAN
AMERICANS .................................................... 14
A.
Throughout Much of America’s History,
Persecution of Asian Americans Was the
Shameful Norm........................................ 14
B.
The Page Act and Chinese Exclusion Act17
C.
World War II Internment of Japanese
American Families .................................. 17
D.
The Disgraceful History of Discrimination
Against Asian Americans in Education .. 18
III. IF THE TJ ADMISSIONS PLAN IS
ALLOWED TO STAND, OTHER SELECTIVE
SCHOOLS WILL CONTINUE TO USE OR
WILL ADOPT SIMILAR ILLEGAL METHODS
TO ACHIEVE RACIAL GOALS ...................... 21
A.
Racial Balancing Will Destroy Our Public
Academic Schools, Leaving Americans of
All Ethnicities Poorer .............................. 21
B.
Merit-Based Admission is Fair for All;
Moreover, it is Necessary if America is
to Retain its Leading Position in the
World ........................................................ 25
iii
IV. THIS COURT’S RECENT RULING IN
STUDENTS FOR FAIR ADMISSIONS DOES
NOT ADDRESS THE URGENT ISSUE
PRESENTED HERE ........................................ 28
CONCLUSION.......................................................... 30
iv
TABLE OF AUTHORITIES
Cases
Brown v. Board of Education,
347 U.S. 483 (1954) ......................... 20-21, 28, 30
Coalition for TJ v. Fairfax County School Bd.,
68 F. 4th 864 (2023) ................................. passim
Gong Lum v. Rice, 275 U.S. 78 (1927)...................... 20
Grutter v. Bollinger, 539 U.S. 306 (2003) .................. 5
Hirabayashi v. United States,
320 U.S. 81 (1943) ............................................ 18
Hirabayashi v. United States,
828 F. 2d 591 (9th Cir. 1987) ........................... 18
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, 19, 20
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) ............................ 16
In re Tiburcio Parrott,
1 F. 481 (C.C.D. Cal. 1880) .............................. 16
Johnson v. California, 543 U.S. 499 (2005) ............... 9
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) .... 18, 18 n. 5
Lee v. Johnson,
404 U.S. 1215 (1971) ........................................ 20
Miller v. Johnson, 515 U.S. 900 (1995) .................... 29
v
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) .............................. 15
Plessy v. Ferguson, 163 U.S. 537 (1896)................... 19
Rice v. Cayetano, 528 U.S. 495 (2000)........................ 7
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) .... 20
Shaw v. Hunt, 517 U.S. 899 (1996) .......................... 29
Students for Fair Admissions, Inc. v. President and
Fellows of Harvard College v. Univ. of North
Carolina, 143 S. Ct. 2141 (2023).............. passim
Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885)........ 19, 28
United States v. Wong Kim Ark,
169 U.S. 649 (1898) .......................................... 16
Wong Him v. Callahan,
119 F. 381 (C.C.N.D. Cal. 1902) ................. 19-20
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ................................... 8-9, 16
Statutes, Orders
18 U.S.C. § 97a ................................................... 18 n. 5
Chinese Exclusion Act .............................................. 17
Executive Order 9066 ........................................ 18 n. 5
Record
Pet.App. ............................................................. passim
vi
Books
Low, Victor. The Unimpressible Race
(East/West Publishing Co. 1982) ..................... 15
McClain, Charles. In Search of Equality
(Univ. of Cal. Press 1994) .......................... 14-15
Sandmeyer, Elmer C. The Anti-Chinese Movement
in California, (Univ. of Ill. Press 1991) ......... 15
Miscellaneous
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 .................................................................. 28
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 . 26-27
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 .............................. 12
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 .................................................................. 12
vii
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/ ................................................................ 23
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 ....................... 23
Chinese Immigration and the Chinese Exclusion
Acts, found at https://history.state.gov/
milestones/1866-1898/chinese-immigration ............ 17
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/ ................................................................ 13
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
Federal Judge Withdraws Opinion After Anti-White
Texts Emerge In Boston Public Schools Case, Washington Examiner (July 12, 2021), found at https://
www.washingtonexaminer. com/ news/ federaljudge-retracts-opinion-antiwhite –texts ............. 23-24
Free Dictionary, The, found at https://idioms.
thefreedictionary.com/Chinaman%27s+chance ....... 15
viii
Harvard Warns That Chinese Tech Is Rapidly
Overtaking American Capabilities, The Byte, found
at https://futurism. com/the-byte/harvard-reportchina-tech .................................................................. 25
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/ ................................................ 27
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) ........... 22
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
ix
SFNAACP Fails Black Students, Critical Rice
Theory (Dec. 22, 2021), found at https://dianey.
substack.com/p/sfnaacp-fails-black-students?s=w .. 23
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/ .................................................................. 12
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/ ............................. 24-25
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 18-19
Which Political Leader Expressed Concerns about
California Universities “fill[ing] their entire
freshman classes with nothing but Asian
Americans?” Reason (May 19, 2015), found at
https://reason.com/volokh/2015/05/19/ whichpolitical-leader-express/ ............................................ 14
1
THE INTEREST OF AMICI CURIAE 1
This case, involving use of proxies to reduce
enrollment of Asian Americans at Thomas Jefferson
High School (“TJ”), is of critical importance to amici
curiae and their constituents, who are Americans of
Asian ethnic descent. Amici believe it is vitally
important that this Court grant certiorari and
provide timely clarification that schools cannot evade
this Court’s recent ruling in Students for Fair
Admissions, Inc. v. President and Fellows of Harvard
College v. Univ. of North Carolina, 143 S. Ct. 2141
(2023), by using “race-neutral” proxies.
Asian Americans have historically faced
discrimination and even violence because of their
ethnicity. In the educational arena, Asian Americans
have been subjected to egregious discrimination
based on their ethnicity for almost as long as Asians
have been in America. At many selective schools,
Asian Americans have been subjected to admissions
processes that have denied them equal access to
opportunity because of their skin color. Many of
Amici’s constituents have children who were denied
entrance to or who may one day aspire to attend TJ
or other selective institutions with similar
discriminatory admissions 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.
2
Issues raised by this case are particularly
poignant as the Asian American community has
recently been experiencing a pandemic of race-based
violence, with vulnerable Asian Americans viciously
attacked and even murdered in the streets of
American cities. These horrific attacks are often
carried out using the same rationale applied to
justify discrimination in education—that Asian
Americans are inexorably “other,” do not contribute
to diversity, are “overrepresented,” and less
deserving of basic rights.
The Asian American Coalition for Education
(“AACE”) is an apolitical, non-profit, national
alliance. It is 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 multibillion dollar foundations, but
were forced to become civil rights advocates to
expose, stop and prevent the discrimination against
their
communities
and
children
that
the
“professionals” ignore, downplay and facilitate. In
similar amici filings, AACE has represented more
than 300 Asian American organizations.
More
information
on
AACE
can
be
found
at
http://asianamericanforeducation.org.
The Asian American Legal Foundation (“AALF”),
3
a non-profit organization based in San Francisco,
was founded in 1994 to protect and promote the civil
rights of Asian Americans. AALF focuses its work on
situations where Asian Americans are discriminated
against for a purportedly benign purpose and where
high profile groups and individuals deny that
discrimination even exists. Members of AALF were
instrumental in the struggle to end discrimination
against Chinese American students in the San
Francisco, California public school system. See Ho v.
San Francisco Unified Sch. Dist., 147 F.3d 854 (9th
Cir. 1998). 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 for the purpose of
protecting and preserving 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 and 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 so that they will eventually be prepared to
apply to and excel at rigorous schools like Lowell.
More information on FOLF can be found at
4
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 the Fairfax
County School Board (the “Board”) has adopted an
admissions plan at Thomas Jefferson High School
(“TJ”) designed to reduce Asian Americans
enrollment, and urge this Court to grant certiorari
and examine that plan under strict scrutiny.
While the Board’s stated goal was to mirror the
“diversity” of Northern Virginia, not only was the
admissions plan deliberately crafted to reduce Asian
American enrollment through the use of proxies, the
message sent by school officials was that Asian
Americans were “overrepresented” and lacking in
“diversity”—messages that have historically caused
immense suffering to Asian Americans.
Throughout the long history of Asians in this
nation, they have faced discrimination rationalized
by depicting them as featureless members of a
“yellow horde,” lacking the human attributes of other
Americans, “overrepresented,” and not deserving to
be treated as individuals. It is thus sad to see Asian
Americans again subjected to negative stereotyping
and discrimination, and at one of the nation’s leading
high schools.
5
The pernicious view that Asian Americans are
“overrepresented” and do not contribute to diversity
at TJ and certain other selective schools is
unfortunately common across the nation. It causes
real and tangible harm, resulting in Asian American
children being excluded from educational and other
opportunities, causing them to feel a sense of
inferiority, anger, and hopelessness in their academic
endeavors, knowing they will face higher and often
insurmountable hurdles because of their ethnicity. It
has also led to increased discrimination and violence
against members of the Asian American community.
The communications of Fairfax County School
Board members, the racial data they studied, and
their statements at the time, make abundantly clear
that their goal was racial balancing. The plan they
adopted worked exactly as designed, reducing Asian
American enrollment at TJ dramatically. The
Board’s reliance below on Grutter v. Bollinger, 539
U.S. 306 (2003), for a compelling diversity interest to
justify the plan was not only misplaced, as the
diversity interest found in Grutter exists only in
higher education, it also demonstrates that the
Board well knew it was engaged in racial
engineering.
America exists in a competitive, often hostile
world. If it is to retain its leading position it needs to
place more emphasis on merit, not less. Attempts to
destroy the academic character of selective schools
like TJ in the name of racial balancing are not only
6
unconstitutional, they are misguided in terms of
those they purport to help. Deficiencies in K-8
education cannot be addressed by racially balancing
TJ and other academic high schools. All that would
accomplish is to destroy these schools’ academic
natures, depriving Americans of all ethnicities of a
valuable public resource. Then, only the wealthy
would have access to superior education.
This Court should grant certiorari so that it can
determine whether a school’s use of proxies to
achieve racial goals allows it to evade strict scrutiny.
ARGUMENT
I.
THE COURT SHOULD GRANT
CERTIORARI TO CONSIDER WHETHER
A SCHOOL DISTRICT MAY EVADE
STRICT SCRUTINY BY MANIPULATING
FACIALLY-NEUTRAL ADMISSIONS
CRITERIA TO ACHIEVE A DESIRED
RACIAL OUTCOME.
A.
The New TJ Admissions Plan Was
Deliberately Crafted to Reduce
Asian American Enrollment.
Amici and their constituents are appalled that,
once again, Asian Americans are considered
“overrepresented,” justifying attempts to limit their
participation and access to opportunity in American
society—this time as students at Fairfax County’s
selective Thomas Jefferson High School. Such
7
attempts at racial balancing are 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).
By deliberately crafting changes to enrollment
rules so as to reduce the “overrepresentation” of
Asian Americans at TJ, the Fairfax County School
Board “demeans the dignity and worth” of Asian
Americans by judging them by ancestry instead of by
their “own merit and essential qualities.” Rice v.
Cayetano, 528 U.S. 495, 517 (2000).
As the district court correctly found, the Board’s
overriding purpose in changing the admissions
standards at TJ, furthered by the means it chose—
removing the entrance exam, capping admission from
each middle school at 1.5%, and giving bonus points
for “Experience Factors”—was to reduce Asian
American enrollment:
Throughout
this
process,
Board
members and high-level FCPS officials
expressed their desire to remake TJ
admissions
because
they
were
dissatisfied with the racial composition
of the school. A means to accomplish
their goal of achieving racial balance
was to decrease enrollment of the only
racial group "overrepresented" at TJ—
Asian Americans. The Board employed
8
proxies that disproportionately burden
Asian-American students.
Pet.App. 95a; id. 106a-108a (district court decision).2
As the record shows, the Board targeted Asian
American enrollment using the demographics of the
feeder middle schools—capping each at 1.5%, since it
determined most Asian American applicants came
from six middle schools. See id.; Coalition for TJ v.
Fairfax Cty. Sch. Bd., 68 F. 4th 864, 875 (2023). It
also gives “experience factor” points to applicants
who are “English-language learners” or from
“historically underrepresented” middle schools that
cannot be used by most Asian American applicants.
Id. at 875, 877, 900; Pet.App. 88a-89a. The Board
carefully chose its proxies for race, based on scrutiny
of racial data, and “extensive racial modeling” of the
effect of new admissions proposals. Id. at 898-99;
Pet.App. 59a, 63a, 67a-70a.3 And, it achieved exactly
the result predicted—a 26 per cent reduction in
Asian American enrollment at TJ. Pet.App. 53a, 89a.
The situation is similar to that in Yick Wo v.
Hopkins, 118 U.S. 356 (1886), where this Court found
that San Francisco’s facially-neutral laundry
licensing ordinance was impermissibly crafted to
target Chinese Americans:
2 References to “Pet.App.” are to the Appendix to the Petition.
3 Rather incredibly, the court below ignored the fact-findings of
the district court and held, “the Coalition cannot establish that
the Board adopted its race-neutral policy with any
discriminatory intent.” Coalition for TJ, 68 F. 4th at 867.
9
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
in
similar
circumstances…the denial of equal
justice is still within the prohibition of
the Constitution.
Id. at 373-74. Here, as in Yick Wo, the School Board
should not be allowed to practice racial
discrimination just because it does so using faciallyneutral proxies. This Court should grant certiorari
so that it can examine the TJ admissions plan under
strict scrutiny, something that the court below failed
to do. Coalition for TJ, 68 F. 4th at 887; Pet.App. 43a
(applying rational basis scrutiny); but see Johnson v.
California, 543 U.S. 499, 505 (2005) (“We have
insisted on strict scrutiny in every context…”)
B.
The Burden of the TJ Admissions
Plan Falls Heaviest on Those Least
Able to Bear It.
A key component of the Board’s plan is the
capping of enrollment from each middle school at
1.5%, since it determined that a majority of Asian
American applicants came from six such feeder
schools. Pet.App. 71a. As intended, the effect was to
reduce overall Asian American enrollment at TJ, in a
10
manner akin to what results when race-based
gerrymandering is used to reduce the overall impact
of black voters. However, in the TJ school admissions
context, “[t]he set-aside disproportionately forces
Asian-American students to compete against more
eligible and interested applicants (often each other)
for the allocated seats at their middle schools.”
Pet.App.
98a.
The
result
is
that
less
socioeconomically advantaged Asian American
candidates, who are not as well prepared, are at a
severe disadvantage.
Making the situation worse, the admissions plan
considers an applicant based on middle school
attended rather than school zoned. As a result, there
is a “special penalty” imposed on students from
disadvantaged and low performing neighborhoods
who nonetheless have gained admittance to one of
the more academic middle schools. Pet.App. 73a.
Thus, perversely, at the targeted feeder schools,
the burden of the racial discrimination falls heaviest
on the most disadvantaged Asian American students
who aspire to attend TJ.
C.
Contrary to the School Board’s
Belief, Asian Americans Are
Themselves Diverse and Contribute
Significantly to Diversity.
The Board’s underlying premise that Asian
Americans are monolithic and do not contribute to
diversity is wrong. While crafting methods to
11
decrease Asian American enrollment to increase
“diversity,” the Board failed to consider that “Asian”
encompasses many diverse ethnic groups, each of
which is a distinct minority: “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 9/9/2023).
Within each of these “Asian” countries (and their
American descendants), there 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/income- inequality-in-the-u-s-is -rising- mostrapidly-among-asians/ (last visited 9/9/2023).
Thus, by any reasonable measure, Asian
Americans contribute significantly to diversity.
12
D.
The Message that Asian Americans
are “Overrepresented” Encourages
Hostility and Violence Against this
Minority Not Only in Schools But
Also in the Streets of Our Cities.
As this Court has warned, “Classifications based
on race carry a danger of stigmatic harm.” Richmond
v. J. A. Croson Co., 488 U. S. 469, 493-94 (1989).
“Unless they are strictly reserved for remedial
settings, they may in fact promote notions of racial
inferiority and lead to a politics of racial hostility.”
Id.
The case presently before this Court is part of a
multi-year trend that has resulted in increased
hostility directed against Asian Americans, not just
in schools but also in the streets of our cities. See
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 (last visited
9/9/2023); 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 9/9/2023). 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-crimes-
13
raises-fears -in-southern- california/ (last visited
5/7/2022).
Increased hostility toward Asian Americans has
particularly been felt in San Francisco, California,
ironically the center of much of the historical antiAsian racism. See Hate Crimes Against Asian
Americans Are on the Rise, Time, Feb. 18, 2021,
found at https:// time.com/5938482/asian-americanattacks/ (last visited 9/20/2023); 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/usnews/ 2022/jan/26 /san -francisco-increase- hatecrime-anti-asian-aapi (last visited 9/20/2023).
In a strange inversion, 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,’” apparently thought to
render them legitimate targets of racial bias. 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-mayhave-claimed-asian- students-benefit -from-whitesupremacy/ (last visited 9/20/2023).
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. Media and prominent individuals have
14
encouraged this dangerous trend by stating openly
(and erroneously) that without race-conscious action,
Asian American students might end up filling all the
places at colleges, See Eugene Volokh, Which
Political Leader Expressed Concerns about California
Universities “fill[ing] their entire freshman classes
with nothing but Asian Americans?” Reason (May 19,
2015), found at https://reason.com/volokh/2015/05/19/
which-political-leader-express/ (last visited 9/9/2023).
That same unfortunate—and racist—sentiment,
which ignores that individual rights are at stake, is
demonstrated by the Fairfax County School Board.
II.
THE RATIONALE USED TO JUSTIFY
DISCRIMINATION AT TJ ECHOS THE
REPELLANT STEREOTYPES
HISTORICALLY USED TO JUSTIFY
DISCRIMINATION AGAINST ASIAN
AMERICANS.
A.
Throughout Much of America’s
History, Persecution of Asian
Americans Was the Shameful Norm.
The Board views Asian Americans as
“overrepresented” and not contributors to “diversity.”
This attitude evokes the same 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 other individuals. See,
e.g., Charles McClain, In Search of Equality (Univ. of
15
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
at
https://idioms.
Thefreedictionary.com/Chinaman%27s+chance (last
visited 9/9/2023).4
Historical court cases in which Asian Americans
struggled for equal treatment provide a record 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;
4 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.
16
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
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.
17
B.
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 9/9/2023.) 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
at https:// history.state.gov/ milestones/1866-1898/
chinese-immigration (last visited 9/9/2023). 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.
C.
World War II Internment of
Japanese American Families.
One of the most egregious modern attacks on the
constitutional rights of Asian Americans occurred
during World War II, when entire families of
Japanese Americans were removed from their West
18
Coast homes and placed in internment camps.5
Supported by the statements of authorities and
experts who declared the discriminatory 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
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” and
not “military necessity”); Hirabayashi v. United
States, 828 F.2d 591 (9th Cir. 1987).
D.
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
5 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.
19
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-hadschool-choice-the-founders-rejected-it/ (last visited
9/20/2023). 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 9/20/2023.) 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.
20
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).
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.
21
“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, as demonstrated by TJ and
certain other selective institutions, the same
discriminatory intent is alive today, now cloaked as a
striving for “diversity.”
III.
IF THE TJ ADMISSIONS PLAN IS
ALLOWED TO STAND, OTHER
SELECTIVE SCHOOLS WILL CONTINUE
TO USE OR WILL ADOPT SIMILAR
ILLEGAL METHODS TO ACHIEVE
RACIAL GOALS.
A.
Racial Balancing Will Destroy Our
Public Academic Schools, Leaving
Americans of All Ethnicities Poorer.
The situation at TJ is very similar to what has
been happening across the nation to other selective
public schools, where proponents of racial balancing
seek to eliminate merit-based admissions.
● San Francisco’s Lowell High School. At
San Francisco’s selective Lowell High School,
proponents of racial balancing also deem Asian
Americans to be “overrepresented.” First voting to
halt consideration of test scores and grades as a
“temporary” Covid measure, the San Francisco
School Board then, in a covert process similar to that
22
in Fairfax County, voted to make the change
permanent. “On February 9, 2021, the Board, in a 5–
2 vote, 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 9/11/2023).
Then, 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.
In San Francisco, as in Fairfax County,
proponents of racial balancing seek to increase
“diversity” by limiting Asian American enrollment.
However, far from discriminating against anyone
because of race, Lowell, like TJ, reached across racial
and socioeconomic lines to enable children of all
ethnicities to excel in a public school environment
open to all:
Lowell High was open to any student
with
the
necessary
academic
qualifications. Lowell’s merit-based
admissions did not consider (much less
discriminate based on) race. To get into
Lowell, a student needed only to attend
school consistently, do their assigned
work, and study enough to achieve good
grades and pass their proficiency exams.
23
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 ?s=w
(last visited 9/10/2023).
● Boston’s Exam Schools. In Boston, the city’s
three “Exam schools” are under attack. Citing
perceived “overrepresentation” of Asian and white
Americans, the board first adopted an admissions
plan using zip codes as proxies for race, then,
following public disclosure of the racial animus
underlying the plan, changed 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 -publicschools-sued -over- alleged-race -based-admissions/
(last visited 9/11/2023).
That Boston’s racial balancing plan was fueled by
racism was amply demonstrated. Boston School
Committee Chair Michael Loconto, at the October 21,
2020 meeting just hours before approving the Zip
Code proxy plan, was caught by a “hot mike” making
anti-Asian slurs. 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 (last
visited 9/11/2023); see Federal Judge Withdraws
24
Opinion After Anti-White Texts Emerge In Boston
Public Schools Case, Washington Examiner (July 12,
2021), found at https://www.washingtonexaminer.
com/ news/ federal- judge-retracts-opinion-antiwhite texts (last visited 9/11/2023). “Judge William Young,
who had issued an opinion favoring the school
system's plan to factor ZIP code into admissions, said
that he could no longer stand behind that opinion
after it appeared that the body's push was motivated
by racial animus.” Id.
● 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-asianamericans-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.
Unless the present political trend of elevating
skin-deep diversity over merit is stopped, it will lead
to the elimination of all public academic high schools.
That would be unfortunate, destroying a vital public
25
resource and leaving only the wealthy with access to
academic enrichment.
B.
Merit-Based Admission is Fair for
All; Moreover, it is Necessary if
America is to Retain its Leading
Position in the World.
Common sense should tell us that if some ethnic
groups are “underrepresented” at an academic 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. If America is to retain its position as a
technology and business leader, it should 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-chinatech (last visited 9/10/2023). “’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
26
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 9/20/2023). “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.
The present nationwide campaign to destroy
academic schools in the name of racial balancing is
misguided and must be stopped before it produces
disastrous consequences for our future.
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 that principle, in fact
that is not true, as shown by a recent 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-kendi-
27
11651181826 (last visited 9/10/2023). 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.
Any K-8 educational deficiencies in Fairfax
County should certainly be addressed. All children, of
whatever ethnicity, deserve to be nurtured, educated
and
guided
toward
the
highest
possible
achievements. Racial politics in high school
admissions is not the answer, however. Addressing
educational deficiencies requires real work at K-8
levels, as well as honesty in confronting the true
problems—including common-sense factors such as
truantism and lack of parental involvement. While
Fairfax County is enviably placed in terms of
resources for doing the necessary work compared to
many other communities, 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 9/10/2023). If the
Fairfax County School Board truly wants to help K-8
children it believes are missing out on educational
opportunities, it should be able to find lawful ways of
helping them, without obfuscating the true problems
and violating the rights of other individuals.
28
IV.
THIS COURT’S RECENT RULING IN
STUDENTS FOR FAIR ADMISSIONS
DOES NOT ADDRESS THE URGENT
ISSUE PRESENTED HERE.
Following this Court’s landmark ruling in
Brown v. Board of Education, 347 U.S. 483 (1954),
some local school boards attempted to 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
9/20/2023).
Similarly, at TJ, school officials are achieving
desired racial results using facially-neutral
methods, which proponents hope will evade this
Court’s recent ruling in Students for Fair
Admissions, 143 S. Ct. 2141.
This Court should grant certiorari to consider
whether a high school’s use of facially-neutral
proxies to accomplish its racial goals must be
examined under strict scrutiny—an issue not settled
by the decision in Students for Fair Admissions. In
the Harvard/UNC college cases, admissions officers
were aware of and considered the race of the
applicant at crucial points in the process. Id. at
2154-56. By contrast, at TJ, admissions officers do
not know the race of the applicant; proxies are used
to achieve the desired racial result. Coalition for TJ,
29
68 F. 4th at 875; Pet.App. 19a. Furthermore, at the
high school level, consideration of race in admissions
is even less likely to be permissible than in higher
education. See Parents Inv. In Comm. Sch., 127
S.Ct. at 2742.
The TJ admissions plan was carefully designed to
exploit the demographics of Fairfax County’s Asian
American K-8 students, 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). This Court has stated that, “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).
If we are to avoid decades of additional
discrimination and litigation such as was caused by
the post-Brown efforts of segregationists, it is urgent
that this Court emphatically clarify that a school’s
use of race-neutral proxies will not shield a raciallymotivated admissions program from a searching
inquiry under strict scrutiny.
30
CONCLUSION
Some 70 years ago, in Brown v. Board of
Education, 347 U.S. 483, this Court recognized the
inherent injury to individuals 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 so that it can
consider whether a school may evade strict scrutiny
by using proxies to racially balance enrollment.
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
September 21, 2023
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.