Amicus Curiae Brief — Association for Education Fairness, Petitioner v. Montgomery County Board of Education, et al.

No. 26-12

──────────────────────────────────

In the Supreme Court of the United States

ASSOCIATION FOR EDUCATION FAIRNESS,

Petitioner,

v.

MONTGOMERY COUNTY BOARD OF EDUCATION,

et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Brief of Amici Curiae Asian American Coalition for

Education, Asian American Legal Foundation,

Asian American Parents Wootton, Asian American

Rights Association, Boston Parent Coalition for

Academic Excellence, Californians for Equal Rights

Foundation, Coalition for TJ, Equal Rights for All

PAC, San Diego Asian Americans for Equality,

Silicon Valley Chinese American Association

Foundation, and United Against Racism in

Education, 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 ..................................... iii

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

SUMMARY OF ARGUMENT .................................... 3

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

I.

II.

THIS COURT SHOULD NOT ALLOW A

SCHOOL DISTRICT TO EVADE STRICT

SCRUTINY BY MANIPULATING FACIALLYNEUTRAL ADMISSIONS CRITERIA

TO ACHIEVE ITS DESIRED RACIAL

OUTCOME ......................................................... 6

A.

The Montgomery County Admissions Plan

Was Deliberately Crafted to Reduce Asian

American Enrollment... ............................... 6

B.

The Lower Courts’ Insistence on a

“Disparate Impact” Was Wrong, Given the

Individual Right at Issue and Given that

“Asian’ Comprises Many Different Ethnic

Groups .......................................................... 9

THE MONTGOMERY COUNTY

ADMISSIONS PLAN IS PART OF AN

ACTIVIST “RACIAL EQUITY” MOVEMENT

THAT THREATENS OUR NATION’S

REMAINING MERIT-BASED SCHOOLS ...... 11

ii

III. ELIMINATING OBJECTIVE CRITERIA FOR

ADMISSION TO MAGNET SCHOOLS

BENEFITS NO ONE, AND WILL ONLY

PERPETUATE RACIAL DIVISIONS WHILE

UNDERMINING AMERICA'S

COMPETITIVENESS ...................................... 15

IV. THE RATIONALE USED TO JUSTIFY

DISCRIMINATION IN MONTGOMERY

COUNTY ECHOES THE REPELLANT

STEREOTYPES HISTORICALLY USED TO

JUSTIFY DISCRIMINATION AGAINST

ASIAN AMERICANS ....................................... 19

V.

A.

Throughout Much of America’s History,

Discrimination Against and Persecution

of Asian Americans Was the Shameful

Norm ........................................................... 19

B.

The Page Act and Chinese Exclusion Act . 21

C.

World War II Internment of Japanese

American Families ..................................... 22

D.

The Disgraceful History of Discrimination

Against Asian Americans in Education .... 23

THERE IS AN URGENT NEED TO FORBID

CYNICAL USE OF PROXIES FOR RACE IF

THE EROSION OF EQUAL PROTECTION IS

TO BE STOPPED ............................................. 26

CONCLUSION.......................................................... 27

iii

TABLE OF AUTHORITIES

Cases

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

(1995) .................................................................. 9

Boston Parent Coal. for Acad. Excellence Corp. v.

Sch. Comm. for Boston, 89 F.4th 46

(1st Cir. 2023) ................................................... 14

Brown v. Board of Education,

347 U.S. 483 (1954) .............................. 25, 26, 27

Gong Lum v. Rice, 275 U.S. 78 (1927)...................... 24

Hirabayashi v. United States,

320 U.S. 81 (1943) ....................................... 22-23

Hirabayashi v. United States,

828 F. 2d 591 (9th Cir. 1987) ........................... 23

Ho Ah Kow v. Nunan,

12 F. Cal. 252 (C.C.D. Cal. 1879)..................... 20

Ho v. San Francisco Unified Sch. Dist.,

147 F. 3d 854 (9th Cir. 1998) ....................... 3, 24

In re Ah Chong,

2 F. 733 (C.C.D. Cal. 1880) .............................. 20

In re Lee Sing,

43 F. 359 (C.C.D. Cal. 1890) ............................ 21

In re Tiburcio Parrott,

1 F. 481 (C.C.D. Cal. 1880) .............................. 20

Johnson v. California, 543 U.S. 499 (2005) ............... 8

Korematsu v. United States,

584 F. Supp. 1406 (N.D. Cal. 1984) .... 22 n.4, 23

Lee v. Johnson,

404 U.S. 1215 (1971) ........................................ 25

iv

Miller v. Johnson, 515 U.S. 900 (1995) ...................... 9

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

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

People v. Hall, 4 Cal. 399 (1854) .............................. 20

Plessy v. Ferguson, 163 U.S. 537 (1896)................... 24

Rice v. Cayetano, 528 U.S. 495 (2000)........................ 7

San Francisco NAACP v. San Francisco Unified Sch.

Dist., 59 F. Supp. 2d 1021 (N.D. Cal. 1999) .... 25

Shaw v. Hunt, 517 U.S. 899 (1996) ............................ 8

Students for Fair Admissions, Inc. v. President and

Fellows of Harvard College v. Univ. of North

Carolina, 600 U.S. 181 (2023).......................... 26

Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885).............. 23

United States v. Wong Kim Ark,

169 U.S. 649 (1898) .......................................... 21

Wong Him v. Callahan,

119 F. 381 (C.C.N.D. Cal. 1902) ...................... 24

Yick Wo v. Hopkins,

118 U.S. 356 (1886) ................................... 7-8, 21

Constitution, Statutes, Orders

8 U.S.C. § 7 (Chinese Exclusion Act of 1882) .......... 21

18 U.S.C. § 97a .................................................. 22 n. 4

Executive Order 9066 ....................................... 22 n. 4

United States Constitution .......... 1, 4, 8, 9, 11, 21, 25

Record

App. (Petitioner’s Appendix) ................... 6, 7, 7 n. 2, 9

v

Books

Low, Victor. The Unimpressible Race

(East/West Publishing Co. 1982) ..................... 19

McClain, Charles. In Search of Equality

(Univ. of Cal. Press 1994) ......................... 19, 23

Sandmeyer, Elmer C. The Anti-Chinese Movement

in California, (Univ. of Ill. Press 1991) ......... 19

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 .................................................................. 26

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 ...... 18

Chinese Immigration and the Chinese Exclusion

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

milestones/1866-1898/chinese-immigration ....... 21-22

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/ ..................... 13

Families Continue To Fight BPS Exam School

Admissions Policy…, Boston.Com (5/20/2026), found

at https://www. boston. com/ news/ localnews/2026/05/20/families-continue-to-fight- bps-

vi

exam-school-admissions-policy-after-judge- rules-nodiscrimination-against- white-asian-students/........ 14

Fortune Magazine – China, found at https:// fortune.

com/2026/07/26 /china-moonshot-deepseek-zai-kimichallenging-us-ai-cost/ .............................................. 17

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

thefreedictionary.com/Chinaman%27s+chance ....... 19

Harvard Warns That Chinese Tech Is Rapidly

Overtaking American Capabilities, The Byte, found

at https://futurism. com/the-byte/harvard-reportchina-tech .................................................................. 15

How China’s New AI Model Deepseek Is Threatening

U.S. Dominance, CNBC Tech (Jan. 24, 2025), found

at https://www.cnbc. com/2025/01/24 /how-chinasnew-ai-model- deepseek-is -threatening- usdominance. html? &doc=108093228 ........................ 16

Humanoid 'Olympics' Reveal Why The US Can't

Compete With China's Robots, New Atlas (Aug. 24,

2026), found at https://newatlas.com/ai-humanoids/

humanoid-games- chinas-robots/ ............................ 16

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/ ......................... 10

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/ ................................................................. 10

vii

Lowell High School / Lottery Based Admissions,

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

wiki/Lowell_ High_ School_(San_Francisco) ........... 11

No American Grads On Meta’s Top AI Team,

Economic Times (July 4, 2025), found at https://

economictimes.indiatimes.com/ nri/latestupdates/no-american-grads-on-metas-top -ai-teamall-11-hires-are-immigrants/articleshow/

122247213.cms ?from= mdr...................................... 17

Page Act of 1875, Wikipedia, found at

https://en.wikipedia. org/wiki/Page_Act_of_1875 .... 21

SFNAACP Fails Black Students, Critical Rice

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

substack.com/p/sfnaacp-fails-black-students?s=w ... 12

Tape v. Hurley, Aftermath, found at

https://en.wikipedia.org/wiki/ Tape_v._Hurley ........ 24

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 legal-battles- supreme-court-00142980 ................... 13

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/ .................................. 16

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 ..... 23

1

THE INTEREST OF AMICI CURIAE 1

This case, involving whether the focus of equal

protection is on the rights of the individual rather

than the disparate impact on an arbitrarily-defined

group, is of critical importance to amici curiae, Asian

American Coalition for Education, Asian American

Legal Foundation, Asian American Parents Wootton,

Asian American Rights Association, Boston Parent

Coalition for Academic Excellence, Californians for

Equal Rights Foundation, Coalition for TJ, Equal

Rights for All PAC, San Diego Asian Americans for

Equality,

Silicon

Valley

Chinese

American

Association Foundation, and United Against Racism

in Education. Amici and their constituents, who are

Americans of Asian ethnic descent, believe it is

vitally important that this Court grant certiorari and

provide timely clarification that in education the

Fourteenth Amendment to the United States

Constitution protects individuals, not groups.

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,

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

Asian American individuals have been subjected to

admissions processes that have denied them equal

access to opportunity because of their skin color,

often under the argument that members of their

“group” were already sufficiently represented. Many

of Amici’s constituents have children who were

denied entrance to or who may one day aspire to

attend magnet programs in Montgomery County,

Maryland or other selective public schools with

similar discriminatory admissions practices. Amici

believe the attack on equal protection in this case is

also an assault on the meritocracy and educational

excellence that are crucial to this nation’s future.

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

3

http://asianamericanforeducation.org.

The Asian American Legal Foundation (“AALF”),

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.

Amici Curiae ask this Court to hear their

arguments in support of Petitioner.

SUMMARY OF ARGUMENT

Amici Curiae are appalled that the Montgomery

County Board of Education (“Board”) has adopted an

admissions plan designed to reduce Asian American

enrollment at the magnet middle school programs of

the Montgomery County Public Schools (“MCPS”),

and urge this Court to grant certiorari and examine

that plan under strict scrutiny.

It is beyond reasonable dispute that the School

Board’s goal was to increase black and Hispanic

enrollment by reducing admission of Asian American

4

students. It tried various methods, scrapping merit

criteria in favor of carefully-selected racial proxies,

finally settling on a lottery system that forces Asian

American students, who are clustered in several

feeder elementary schools, to compete against each

other and score significantly higher on relevant

metrics than students at other schools to qualify for

the magnet program lottery. The School Board’s

illegal racial motives throughout merit strict

scrutiny, which this Court has long taught is

precisely designed to “smoke out” illegitimate

consideration of race.

The Fourth Circuit’s ruling that the Board’s

admissions plan cannot be challenged because there

is no “disparate impact” on Asian Americans as a

whole ignores that the Constitution protects

individuals not groups. Enrollment of Asian

Americans has dropped dramatically under the new

plan, exactly as the Board intended, meaning that

many individual students were denied admission

because of their race. Furthermore, in this country

“Asian American” is not a monolithic ethnicity but

comprises more than 20 different ethnic groups, each

of which will be affected differently under the Board’s

plan, leaving the effect on the individual as the only

reasonable focus for the constitutional inquiry.

This Court should also consider that the School

Board’s

depiction

of

Asian

Americans

as

“overrepresented” and lacking in “diversity” is not

only

incorrect

and

an

unconstitutional

5

characterization, it is also a message that has

historically caused immense suffering to Asian

Americans during their long history in this country,

where they have often 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.

The pernicious view that Asian Americans are

“overrepresented” and not contributors to diversity

causes real and tangible harm, not only to children

who are excluded from educational opportunities, but

also through increased violence against members of

Asian American communities across the nation.

The Board’s watering down of merit-based

selection criteria at its magnet programs in the name

of skin-deep “diversity” is also counter-productive.

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 to

promote

racial

balancing

are

not

only

unconstitutional, they are misguided in terms of

those they purport to help. Deficiencies in early

education cannot be addressed by racially balancing

magnet school programs. All that would accomplish

is to destroy those schools’ academic natures,

depriving Americans of all ethnicities of a valuable

public resource. Then, only the wealthy would have

access to superior education.

6

For these and other reasons, this Court should

grant certiorari so that it can examine the MCPS

magnet program admissions plan under strict

scrutiny.

ARGUMENT

I.

THIS COURT SHOULD NOT ALLOW A

SCHOOL DISTRICT TO EVADE STRICT

SCRUTINY BY MANIPULATING

FACIALLY-NEUTRAL ADMISSIONS

CRITERIA TO ACHIEVE ITS DESIRED

RACIAL OUTCOME.

A.

The Montgomery County

Admissions Plan Was Deliberately

Crafted to Reduce Asian American

Enrollment.

As the record shows, the MCPS Board’s goal in

changing the admissions process for its magnet

school programs was to “racially balance” enrollment

by reducing Asian American participation. As the

district court noted, “Over the years, MCPS grew

increasingly concerned that the magnet programs

and other academic programming did not align with

the racial demographics of the larger MCPS student

body.” App. 10a.

The MCPS Board engaged an outside consulting

firm to help it find facially-neutral proxies that could

be manipulated to reduce Asian American

enrollment at its four magnet middle programs, so as

7

to increase the representation of African American

and Hispanic students and provide “racial balance.”

App. 49a-52a, 56a-58a.2 The prior merit-based

admissions system was scrapped and under the plan

ultimately reached, Asian Americans students, who

were primarily clustered in several higherperforming elementary schools, were required by

“local norming” to score significantly higher than

those at other schools on standardized metrics in

order to participate in the new lottery created for the

magnet programs. App. 16a-17a, 78a-79a. “[L]ocal

norming makes it harder for Asian-American

students to enter the lottery pool.” App. 80a.

By deliberately crafting changes to enrollment

rules so as to reduce the “overrepresentation” of

Asian Americans, MCPS has “demean[ed] 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).

Its racial motives are illegal, and the racial balancing

it achieved 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).

The situation is similar to that in Yick Wo v.

Hopkins, 118 U.S. 356 (1886), where this Court found

2 References to “App.” are to Petitioner’s Appendix.

8

that San Francisco’s facially-neutral laundry

licensing ordinance was impermissibly crafted to

target Chinese Americans:

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, MCPS should not

be allowed to practice racial discrimination just

because it does so using facially-neutral proxies.

This Court should grant certiorari so that it can

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…”)

In analogous 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 in changing over to a “local normed”

rule in which clusters of students at elementary

schools are now essentially competing against

9

themselves for places in a county-wide lottery. As

this Court has also 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).

B.

The Lower Courts’ Insistence on a

“Disparate Impact” Was Wrong, Given

the Individual Right at Issue and

Given that “Asian’ Comprises Many

Different Ethnic Groups.

It was wrong for the courts below to reason that

there was no cognizable injury because, even though

it declined dramatically, total Asian American

enrollment was still not below the group’s percentage

of the applicant pool. App. 24a-26a. 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 crafted to reduce Asian American enrollment

by, among other things, requiring individual Asian

American students on the average to have higher

metrics than others in order to qualify for the magnet

program lottery. Thus, the focus should have been on

the impact to the individual not the “disparate

impact” on a group.

The lower courts also failed to consider that

10

“Asian Americans” are not a single ethnic group, but

“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 8/24/2026).

Between each of these many “Asian” groups 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, including academic preparedness.

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-inthe-u-s-is -rising- most-rapidly-among-asians/ (last

visited 8/24/2026). Thus, for some of these “Asian”

groups, their representation at the magnet school

programs likely did fall below their percentage of the

applicant pool as a result of the new admissions plan.

Again, the only meaningful constitutional focus is on

the individual student, not some arbitrarily-defined

group.

11

II.

THE MONTGOMERY COUNTY

ADMISSIONS PLAN IS PART OF AN

ACTIVIST “RACIAL EQUITY”

MOVEMENT THAT THREATENS OUR

NATION’S REMAINING MERIT-BASED

SCHOOLS.

The situation with Montgomery County’s magnet

programs is similar to what has been happening to

other selective public schools nationwide, where

proponents of racial balancing seek to eliminate

merit-based admissions systems that have been in

place for generations. Such attempts to “dumb down”

magnet middle and high school programs are

troubling not only because they violate the

Constitution but also because they threaten

American technological supremacy.

● 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 8/24/2026). Two

years later, after plummeting student performance

and a recall of three board members, merit-based

12

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

struggle is expected to continue, as the San Francisco

Board of Education is presently exploring ways to

incorporate “racial equity” into the school assignment

policy.

In San Francisco, as in Montgomery County,

proponents of racial balancing seek to increase

“diversity” by limiting Asian American enrollment.

However, far from discriminating against anyone,

Lowell, like Montgomery County’s magnet programs,

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

to

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 8/24/2026).

● New York’s Specialized High Schools. New

York’s eight selective specialized high schools come

under perennial attack, always fueled by the

13

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 8/24/2026). “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 8/24/2026). There, as here, 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.”

● Boston’s Exam Schools. Similar to the

situation in Montgomery County, the Boston school

14

district in 2020 scrapped its generations-old meritbased admission system at its prestigious magnet

high schools—Boston Latin Academy, Boston Latin

School, and the John D. O’Bryant School of

Mathematics and Science—and took advantage of

Boston’s neighborhood racial demographics to set up

a quota system using zip code blocks that “racially

balanced” the magnet schools by requiring students

from predominantly Asian American and white

neighborhoods to attain a significantly higher GPA

for admission than students from black and Hispanic

neighborhoods. See Boston Parent Coal. for Acad.

Excellence Corp. v. Sch. Comm. for Boston, 89 F.4th

46 (1st Cir. 2023); Molly Farrar, Families Continue

To Fight BPS Exam School Admissions Policy…,

Boston.Com (5/20/2026), found at https://www.

boston. com/ news/ local-news/2026/05/20/familiescontinue-to-fight- bps-exam-school-admissions-policyafter-judge- rules-no-discrimination-against- whiteasian-students/ (last visited 8/24/2026).

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

middle and high schools. That would destroy a vital

public resource, leaving only the wealthy with access

to academic enrichment.

15

III.

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 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 8/24/2026).

“’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

16

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 8/24/2026). “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.

China’s present growing technological prowess

already threatens America’s supremacy in multiple

disciplines. China presently leads in robotics. See

Humanoid 'Olympics' Reveal Why The US Can't

Compete With China's Robots, New Atlas (Aug. 24,

2026), found at https://newatlas.com/ai-humanoids/

humanoid-gameschinas-robots/

(last

visited

8/24/2026). In January 2025, the Chinese artificial

intelligence (AI) startup DeepSeek released its

efficient reasoning model R1, sending shockwaves

through the American tech industry. How China’s

New AI Model Deepseek Is Threatening U.S.

Dominance, CNBC Tech (Jan. 24, 2025), found at

https://www.cnbc. com/2025/01/24 /how-chinas-newai-model- deepseek-is -threatening- us-dominance.

html? &doc=108093228 (last visited 8/24/2026). In

July 2026, China’s AI firms delivered an even bigger

17

jolt. As Fortune reported, “China’s Moonshot, Z.AI,

and DeepSeek are challenging U.S. AI labs—and

beating them on cost.” Fortune Magazine – China,

found at https:// fortune. com/2026/07/26 /chinamoonshot-deepseek-zai-kimi-challenging-us-ai-cost/

(last visited 8/24/2026).

America’s AI lead is rapidly eroding, with

China’s AI models showing striking advantages in

reasoning and logic, which depend on exceptional

STEM talent, especially mathematics. Education is

key. Although American scientists pioneered the AI

revolution, the United States has become

increasingly dependent on foreign STEM talent. In

July 2025, Meta hired 11 top AI researchers for its

new Superintelligence Lab—all of them immigrants.

No American Grads On Meta’s Top AI Team,

Economic Times (July 4, 2025), found at https://

economictimes.indiatimes.com/ nri/latest-updates/noamerican-grads-on-metas-top -ai-team- all-11-hiresare-immigrants/articleshow/ 122247213.cms ?from=

mdr (last visited 8/25,2026).

Clearly, America badly needs meritocracy and

educational excellence to remain competitive; yet,

MCPS and other similar institutions are doing all

they can to destroy both, creating a severe shortage

in STEM talent in American students. This selfdestructive trend needs to be reversed before it is too

late.

America was founded on the principle of

meritocracy. While some proponents of racial

18

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 8/24/2026). 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. However, racial politics in public

magnet program admissions is not the answer.

19

IV.

THE RATIONALE USED TO JUSTIFY

DISCRIMINATION IN MONTGOMERY

COUNTY ECHOES THE REPELLANT

STEREOTYPES HISTORICALLY USED

TO JUSTIFY DISCRIMINATION

AGAINST ASIAN AMERICANS.

A.

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

at

https://idioms.

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

20

visited 8/24/2026).3

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

3 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.

21

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.

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 8/24/2026.) In

1882, in an even more extraordinary attack on equal

protection, Congress passed the Chinese Exclusion

Act of 1882, a law enacted to prevent an entire ethnic

group from immigrating to the United States. See

22

Chinese Immigration and the Chinese Exclusion Acts,

found at https://history. state.gov/ milestones/18661898/chinese-immigration (last visited 8/24/2026). 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.

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.4 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

4 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.

23

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,” 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

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

8/24/2026). 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

24

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 8/24/2026.) 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

25

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.”

26

V.

THERE IS AN URGENT NEED TO

FORBID CYNICAL USE OF PROXIES

FOR RACE 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

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

8/24/2026).

Similarly, in Montgomery County, school officials

achieve desired racial results using facially-neutral

methods which proponents hope will evade this

Court’s modern landmark decision in Students for

Fair Admissions, Inc. v. President and Fellows of

Harvard College, 600 U.S. 181 (2023), categorically

forbidding consideration of race in student

admissions. If their strategy of using disguised

racial proxies 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

27

racially-motivated admissions program

skeptical inquiry under strict scrutiny.

from

a

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

clarify that a school may not 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

August 26, 2026

Counsel for Amici Curiae