Amicus Curiae Brief — Grutter v. Bollinger

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No. 02-241 a.

In The

Supreme Court of the United States

BARBARA GRUTTER,

Petitioner,

v.

LEE BOLLINGER, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE THE CLAREMONT INSTITUTE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

John C. Eastman, Of Counsel Edwin Meese II

The Claremont Institute Center Counsel of Record

For Constitutional Jurisprudence 214 Massachusetts Ave. N.E.

c/o Chapman Univ. School of Law Washington, D.C. 20002

One University Drive (202) 546-4400

Orange, CA 92866

(714) 628-2587

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

OFFICE OF THE CLERE

a

QUESTIONS PRESENTED

1. Whether the Court of Appeals erred in holding that

the state has a compelling interest in discriminating

against citizens on the basis of race in order to ensure

racial “diversity” in the classroom.

2. Whether the Law School’s current admissions

program is narrowly tailored to serve any compelling

governmental interest.

TABLE OF CONTENTS

EE ccunsenencocecseceszscannsccensnsscnsasscesees il

TABLE OF AUTHORITIES .............ccrsccsssssssssrssssesseseresees v

INTEREST OF AMICUS CURIAE ............ccccccccsseeeesseeeeees l

SUMMARY OF ARGUMENT ...........cccccccscssesesceseeseeeeereees 2

REASONS FOR GRANTING THE WRIT ..............00c00000«: 3

I. THE CIRCUIT COURT MISINTERPRETED

AND MISAPPLIED THIS COURT’S PRECE-

Bee seteestenerssnsensnensnsnsensnnscvcqnsneesecenesnssnesscensscsscosesseee 3

A. Justice Powell’s Opinion in Bakke Did Not

Uphold Racial Classifications Such As the

B. The Circuit Court Erred in Holding That The

“Diversity” Rationale Is A Compelling Gov-

te nsccnstnnseenenMlccneneceonsnscsenestnnssossnssess 5

C. The Court Erred In Holding That This Pro-

gram Was Tailored to Achieve “Diversity” ....... 10

I. THE CIRCUIT COURT OPINION CON-

FLICTS WITH THE OPINIONS OF OTHER

SE CEI cxccsczcesccscsrssncescenssenesserssenscseens 13

Il THE PROCEDURES FOLLOWED BY THE

COURT BELOW AND BY OTHER COURTS

IN SIMILAR CASES DEMONSTRATE THAT

THIS COURT FACE THE SAME OBSTA-

CLES IN ENDING “BENIGN” RACISM

THAT IT FACED IN THE BROWN ERA. ......... 14

A. Racial Classifications Are Not Eradicated

rts. scsceasinmnnareeemeatiasenmmnnnamaniaiiats 14

B. Defenders of Racial Discrimination Are

Refusing to Implement The Demands of The

Equal Protection Clause. ..............::s-e-sssssssseserees 16

C. The Time To End Racial Categorizations in

The Law Is NOW. ............csccsscsssessserseesssenssssssenees 19

CONCLUSION ....0cccccceccsscseecssessscecssecsensenssesssesssscssscssonssoes 20

iv

TABLE OF AUTHORITIES

CASES

Adarand Constructors v. Mineta,

LS ARE ae aera ae 3

Adarand Constructors v. Pena,

ke 5, 13, 22, 24

Anderson v. Martin, 375 U.S. 399 (1964). .......ccccccccccceeeeee 16

Brown v. Board of Ed., 347 U.S. 483 (1954)......3, 9, 18, 25

Brown v. Board of Ed., 349 U.S. 294 (1955)

PIII Piiccncstiainintnsinesinanbtinipanisednnmmtmentecesnes 18, 21, 25

City of Richmond v. J.A. Croson Co.,

a ciccerienrniiecinneenietihidnententinnn 21

Civil Rights Cases, 109 U.S. 3 (1882)............ccccccceeeceeeeeees 11

Coalition for Economic Equity v. Wilson,

122 F.3d 692 (9th Cir. 1997), cert. denied,

I eleiiaen 22

Cooper v. Aaron, 358 U.S. 1 (1958) .............cccccccseceeeeeeeees 18

Dayton Bd. of Ed. v. Brinkman, 443 U.S. 526 (1979)........ 19

DeFunis v. Odegaard 416 U.S. 312 (1974) ..ccccccccccoseesseen 12

Ensley Branch, NAACP v. Seibels,

31 F.3d 1548 (11th Cir. 1994)... cccccccccccscsesssesseeseeenee 20

Fullilove v. Klutznick, 448 U.S. 448 (1980)... 13

Green v. County Sch. Bd., 391 U.S. 430 (1968) ......... 18, 21

Griffin v. County Sch. Bd., 377 U.S. 430 (1968)......... 18, 21

Grutter v. Bollinger,

288 F.3d 732 (6th Cir. 2002) ......cccc.cccccescvesseesneesvee passim

Hi-Voltage Wire Works, Inc. v. City of San Jose,

Ee 19

Vv

Hopwood v. Texas, 236 F.3d 256 (Sth Cir. 2000)............. 16

Hopwood v. Texas, 78 F.3d 932

RAE 3, 5, 16, 20

Johnson v. Bd. of Regents,

263 F.3d 1234 (11 Cir. 2001).......c-cccessesssesesneee 3, 13, 17

Koski v. Gainer, No. 92-C-3293,

1995 WL 599052 (N.D. Ill. Oct. 5, 1995) ......cccccccceee. 20

Loving v. Virginia, 388 U.S. 1 (1967) ......cccccccccsecsessesseesee 19

Maryland Troopers Ass'n v. Evans,

993 F.2d 1072 (4th Cir. 1993)...........cccccccccccsseeceseeeeeeeees 20

Plessy v. Ferguson, 3 U.S. 537 (1896).......cccccccccocececeseeeeeees 9

Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994),

cert. denied 514 U.S. 1128 (1995). .........ccccccccecseseeseeeees 17

Shelley v. Kraemer, 334 U.S. 1 (1948) ........ccccccccccceeseeceeeee 18

University of California v. Bakke,

ENN passim

Wygant v. Jackson Bd. of Education,

I intireiinsteiriinrteinrntaeaaenen 13

STATUTES AND CONSTITUTIONAL PROVISIONS

ARCW § 49.60.400 (1) (Washington Initiative 200)......... 19

Cal. Const. art. I, 31, cl. A (1996) (Proposition 209)......... 19

DECLARATION OF INDEPENDENCE .............0c00ccceseeoeeeseeeee 6,14

Mass. Dec. of Rights (1780), reprinted in

1 THE FOUNDERS’ CONSTITUTION 11

(P. Kurland & R. Lerner, eds., 1987). ..........ccccccceeseeeeeees 7

Va. Dec. of Rights § 1 (1776), reprinted in

1 THE FOUNDERS’ CONSTITUTION 6

(P. Kurland & R. Lerner, eds., 1987) .............cccccecceseeeees 7

OTHER AUTHORITIES

AMERICAN HERITAGE DICTIONARY (4th Ed. 2000)........... 14

Carol Ness, Prop. 209 Foes Win Effort to be

Heard in S.F. Court, SAN FRANCISCO

EXAMINER Nov. 14, 1996 at AS ...........ccccccccceseeeeeeeeeeeees 23

Charles Sumner, The Barbarism of Slavery (1860)

reprinted in AGAINST SLAVERY: AN ABOLITIONIST

READER 313 (Mason Lowance, ed. 2000)................00+ 15

Clint Bolick. Blacks and Whites on Common Ground,

10 STAN. L. & POL’ y REV 155 (Spring 1999)............... 19

Clint Bolick, Jurisprudence in Wonderland:

Why Judge Henderson's Decision Was Wrong,

2 TEx REV. LAW & POL. 60 (Fall, 1997) ...................... 20

Doug Bandow, No Justice for Proposition 209,

WASHINGTON TIMES Jan. 14, 1997 at Al5.................... 23

E. CHEMERINSKY, CONSTITUTIONAL LAW

PRINCIPLES AND POLICIES (1997) ..........:ccccccccceeeeeeeeeeeeees 6

Edward Erler, The Future of Civil Rights:

Affirmative Action Redivivus, 11 NOTRE DAME

J. L. ETHICS & PUB. POL’Y 15 (1997). ......cccccccceeseeeseeees 15

Frederick Douglass, What The Black Man Wants

(Jan. 26, 1865), reprinted in 4 FREDERICK DOUGLASS

PAPERS 59 (Blassingame & McKivigan, eds. 1991)..... 10

Gail Heriot, University of California Admissions

under Proposition 209: Unheralded Gains Face

An Uncertain Future, 6 NEXUS: J Op. 163 (2001)........ 23

James Otis, Rights of the British Colonies Asserted and

Proved, reprinted in B. BAILYN, ED., PAMPHLETS OF

THE AMERICAN REVOLUTION 439 (1965)...........0000c0ce0000 7

Letter from Abraham Lincoln to H.L. Pierce (Apr. 6,

1859), in 3 COLLECTED WorKS 374, 376.(1953)............ 6

vii

Letter from to Henri Gregoire (Feb. 25, 1809), in

Jefferson: Writings 1202 (M. Peterson ed., 1984).......... 8

Letter to Roger C. Weightman (June 24, 1826),

in JEFFERSON: WRITINGS 1516, 1517

(DG, Potaraam, O6., 1964). ....ccccocccssrcccccccsceserscecesscvscessccsces 7

Lino Graglia, “Affirmative Action,” Past, Present,

And Future, 22 OHIO N.U.L. REV. 1207 (1996). .......... 24

Lyndon B. Johnson, Commencement Address at Howard

University: To Fulfill These Rights, in 2 PUBLIC

PAPERS OF THE PRESIDENTS 1965, 635 (1966). ...........0++. 8

Martin Luther King, I Have A Dream (1963)

reprinted in A TESTAMENT OF HOPE: THE ESSENTIAL

WRITINGS AND SPEECHES OF MARTIN LUTHER

KING, JR. 217 (James Washington ed. 1986)........... 10, 26

MARTIN LUTHER KING, WHY WE CAN’T WAIT

ee 25, 26

R. Brad Malone, Note: Marginalizing Adarand:

Political Inertia and the SBA 8(A) Program,

5 TEX. WESLEYAN L. REV 275 (Spring 1999). ............ 24

Ruth Bader Ginsburg, Consti‘utional Adjuaication in the

United States As A Means of Advancing The Equal

Statute of Men And Women Under The Law,

26 HOFSTRA L. REV. 263 (Winter, 1997) .............ccccceeee ll

T EASTLAND, ENDING AFFIRMATIVE ACTION: THE

CASE FOR COLORBLIND JUSTICE (2d ed. 1997).............. 19

T. SOWELL, THE ECONOMICS AND POLITICS OF RACE

CII ccenccntenmemuninzemmnupinentaseasoumgenenmentmemsmemeentansesenen 12

THE FEDERALIST No. 10 (Rossiter ed. 1961)..............cccceeee 8

THE FEDERALIST No. 36 (C. Rossiter ed. 1961).................. i)

No. 02-241

In The

Supreme Court of the United States

BARBARA GRUTTER,

Petitioner,

v.

LEE BOLLINGER, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Sixth Circuit

BRIEF OF AMICUS CURIAE THE CLAREMONT INSTITUTE

CENTER FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITION FOR WRIT OF CERTIORARI

INTEREST OF AMICUS CURIAE'

The Claremont Institute for the Study of Statesmanship

and Political Philosophy is a non-profit educational founda-

tion whose stated mission is to “restore the principles of the

American Founding to their rightful and preeminent

' The Claremont Institute Center for Constitutional Jurisprudence files

this brief with the consent of all parties. The letters granting consent

have been filed previously or are being filed concurrently. Counsel for

a party did not author this brief in whole or in part. No person or entity,

other than amicus curiae, its members, or its counsel made a monetary

contribution specifically for the preparation or submission of this brief.

l

authority in our national life,” including the principle, at

issue in this case, that the self-evident truth of equality

articulated in the Declaration of Independence and now

codified in the Constitution of the United States guarantees

to every individual the right to the equal protection of the

law, regardless of his or “er race.

The Institute pursues its mission through academic

research, publications, and scholarly conferences. Of parti-

cular relevance here, the Institute and its affiliated scholars

have published a number of books and monographs about

the Founders’ views on equality and on the unconstitution-

ality of laws that categorize Americans on. the basis of their

race, including HARRY V. JAFFA, EQUALITY AND LIBERTY:

THEORY AND PRACTICE IN AMERICAN POLITICS (The

Claremont Institute 1999) (1965), THOMAS G. WEST, VIN-

DICATING THE FOUNDERS: RACE, SEX, CLASS AND JUSTICE

IN THE ORIGINS OF AMERICA (1997), and Edward J. Erler,

The Future of Civil Rights: Affirmative Action Redivivus,

11 NOTRE DAME J. L. ETHIcs & Pub. POL’y 15 (1997).

In 1999, the Claremont Institute established an in-house

public interest law firm, the Center for Constitutional Juris-

prudence, to help further the mission of the Claremont

Institute through strategic litigation. The Center has previ-

ously participated as amicus curiae in this Court in such

important cases as Adarand Constructors v. Mineta, 534

U.S. 103 (2001); Dale v. Boy Scouts of America, 530 U.S.

640 (2000), and United States v. Morrison, 529 U.S. 598

(2000).

SUMMARY OF ARGUMENT

The petition for certiorari in this case should be granted

for at least three reasons:

e The Circuit Court erroneously interpreted University of

California v. Bakke, 438 U.S. 265 (1978) when it held

2

that Justice Powell’s separate opinion a) was the

narrowest and therefore controlling opinion, and b) held

that an admissions policy including racial

classifications such as this one were Constitutional.

The decision below conflicts with the Eleventh

Circuit’s decision in Johnson v. Bd. of Regents, 263

F.3d 1234 (11" Cir. 2001) and the Fifth Circuit's

decision in Hopwood v. Texas, 78 F.3d 932 (5" Cir.

1996). In light of this Court’s recent dismissal of

Adarand Constructors v. Mineta (No. 00-730), 534 U.S.

103 (2001), this Court should take this opportunity to

address the Constitutional legitimacy of government

policies which continue to classify and mete out

benefits to Americans by race.

The procedural posture of the case in the Court below,

discussed at length in the dissent’s procedural appendix

and the concurring opinions, as well as the procedures

followed in Adarand Constructors and other cases,

demonstrate that this Court is facing the same

recalcitrance among defenders of racial discrimination

that this Court faced in the immediate wake of Brown v.

Board of Ed., 347 U.S. 483 (1954). Only a forceful

Statement by this Court, similar to those issued

following Brown, will enforce the Constitutional

demand that all Americans be treated equally, without

regard to the color of their skin.

REASONS FOR GRANTING THE WRIT

THE CIRCUIT COURT MISINTERPRETED

AND MISAPPLIED THIS COURT’S PRECE-

DENT.

A. Justice Powell’s Opinion in Bakke Did Not Up-

hold Racial Classifications Such As the One in

this Case.

The fractured nature of the opinions in Bakke make it

sometimes difficult to assess precisely what portions of that

opinion constitute binding precedent. However, it is clear

that Justice Powell’s opinion squarely rejected the sort of

racial favoritism which lies at the heart of the Law School’s

admission policy in this case. As the dissent below noted,

the mere fact that the Law School’s policy is less severe

than the one which was struck down in Bakke does not

mean that the Law School’s policy is constitutional. See

Grutter v. Bollinger, 288 F.3d 732, 777 (6th Cir. 2002)

(Boggs, J., dissenting).

In his Bakke opinion, Justice Powell correctly

denounced racial classifications as violations of America’s

Constitutional principles. Such “distinctions of any sort are

inherently suspect,” he wrote. 438 U.S., at 291. Thus, “[i}t

is far too late to argue that the guarantee of equal protection

to all persons permits the recognition of special wards

entitled to a degree of protection greater than that accorded

others.” Jd., at 295. Justice Powell wrote that programs

which aim to “remedy” past discrimination in general by

creating new legal discriminations unjustly “forc[e] inno-

cent persons in respondent's position to bear the burdens of

redressing grievances not of their making.” Jd. at 298.

In these passages, Justice Powell was not joined by any

member of the Court. However, four justices—Justices

Stevens, Burger, Stewart, and then-Justice Rehnquist—held

that it was unnecessary to address whether the Constitution

itself prohibits the use of race in admissions to higher

education, but still held that “the Title VI ban on exclusion

is crystal clear: Race cannot be the basis of excluding

anyone from particivation in a federally funded program.”

Id., at 417.

4

Although Justice Powell did write that “the State has a

substantial interest that legitimately may be served by a

properly devised admissions program involving the compe-

titive consideration of race and ethnic origin,” id., at 320,

his opinion does not in any way justify the program at issue

in this case. Such a program must still be narrowly tailored

to achieve a compelling government interest. Adarand Con-

structors v. Pena, 515 U.S. 200, 227 (1995). What purpose

is served is not addressed by any majority in Bakke, and it

and subsequent cases have made clear that only actual

remediation of actual, documented incidents of past dis-

crimination by government will permit such policies. The

“diversity” rationale relied upon by the Court below has

never been accepted by this Court. See Hopwood v. Texas,

78 F.3d 932, 944 (S” Cir. 1996) (“In Bakke, the word

‘diversity’ is mentioned nowhere except in Justice Powell’s

single-Justice opinion.... Thus, only one Justice concluded

that race could be used solely for the reason of obtaining a

heterogenous student body”); E. CHEMERINSKY, CONSTITU-

TIONAL LAW: PRINCIPLES AND POLICIES 592 (1997).

The Law School’s program does not remedy actual past

discrimination by government. The Circuit Court held that

mere racial “diversity” was a sufficiently compelling state

interest to survive strict scrutiny. But picking and choosing

students on racial grounds is not sufficient to satisfy Bakke

or any other opinion by this Court.

B. The Circuit Court Erred in Holding That “Di-

versity” is a Compelling Government Interest.

This version of “diversity,” in fact, is a plain violation

of Constitutional principles. The fundamental creed upon

which this nation was founded is that “all men are created

equal.” DECLARATION OF INDEPENDENCE 2. This principle

is, in Abraham Lincoln’s words, a “great truth, applicable

to all men at all times.” Letter from Abraham Lincoln to

5

H.L. Pierce (Apr. 6, 1859), in 3 COLLECTED WorRKS 374,

376 (1953). “All men” meant all human beings—men as

well as women, black as well as white. See, e.g., James

Otis, Rights of the British Colonies Asserted and Proved

(“The colonists are by the law of nature freeborn, as indeed

all men are, white or black”), reprinted in B. BAILYN, ED.,

PAMPHLETS OF THE AMERICAN REVOLUTION 439 (1965); id.

(“Are not women born as free as men? Would it not be

infamous to assert that the ladies are all slaves by nature?”).

These sentiments were codified in the first State

constitutions established after the American colonies

declared their independence. The Virginia Declaration of

Rights, for example, provided that “all men are by nature

equally free and independent.” Va. Dec. of Rights § 1

(1776), reprinted in 1 THE FOUNDERS’ CONSTITUTION 6 (P.

Kurland & R. Lerner, eds., 1987). And the Massachusetts

Declaration of Rights stated simply, “All men are born free

and equal[.]” Mass. Dec. of Rights (1780), reprinted in |

THE FOUNDERS’ CONSTITUTION at 11. Even those founders

who owned slaves recognized that slavery was inconsistent

with the principle of equality articulated in the Declaration

of Independence. “The mass of mankind has not been born

with saddles upon their backs,” wrote Thomas Jefferson,

“nor a favored few, booted and spurred, ready to ride them

legitimately, by the grace of God.” Letter to Roger C.

Weightman (June 24, 1826), in JEFFERSON: WRITINGS

1516, 1517 (M. Peterson, ed., 1984). This was true,

according to Jefferson, even if people were not of equal

capabilities. “Whatever be their degree of talent it is no

measure of their rights,” wrote Jefferson shortly before the

end of his second term as President. “Because Sir Isaac

Newton was superior to others in understanding, he was not

therefore lord of the person or property of others.” Letter

from to Henri Gregoire (Feb. 25, 1809), in id. at 1202.

The Founders regularly exhibited an understanding of

equality that is strikingly similar to what we today refer to

6

as equality of opportunity, not equality of result.” Indeed,

James Madison described the “protection of different and

unequal faculties” as “the first object of government.” THE

FEDERALIST No. 10, at 78 (Rossiter ed. 1961) (1788)

(emphasis added). Alexander Hamilton agreed, writing that

“[(t}here are strong minds in every walk of life that will rise

superior to the disadvantages of situation, and will

command the tribute due to their merit, not only from the

classes to which they particularly belong, but from the

society in general. The door ought to be equally open to

all.” THE FEDERALIST No. 36, at 217 (emphasis added).

With the eradication of slavery and the passage of the

Fourteenth Amendment, the promise of legal equality was

opened to all. Unfortunately, in Plessy v. Ferguson, 3 U.S.

537 (1896), this Court, in one of its darkest moments, held

that legal policies which separated Americans by race were

acceptable under the Constitution. Alone in dissent, Justice

John Marshall Harlan eloquently penned the judicial

equivalent of the Declaration’s creed:

Our Constitution is color-blind, and neither knows

nor tolerates classes among citizens. In respect of

civil rights, all citizens are equal before the law.

The humblest is the peer of the most powerful. The

law regards man as man, and takes no account of

his surroundings or of his color when his civil rights

as guaranteed by the supreme law of the land are

involved.

? The distinction can probably be traced to President Lyndon Johnson’s

speech at Howard University on June 4, 1965: “It is not enough just to

open the gates of opportunity....We seek not just legal equity but human

ability, not just equality as a right and a theory but equality as a fact

and equality as a result.” Lyndon B. Johnson, Commencement Address

at Howard University: To Fulfill These Rights, in 2 PUBLIC PAPERS OF

THE PRESIDENTS 1965, at 635, 636 (1966).

7

Id. at 559 (Harlan, J., dissenting). Fifty-eight years later, in

Brown v. Board of Ed., 347 U.S. 483 (1954), and its

progeny, this Court repudiated Plessy’s separate but equal

doctrine and ultimately renewed America’s dedication to

what Martin Luther King would later describe as his dream,

“that one day this nation will rise up and live out the true

meaning of its creed: ‘We hold these truths to be self-

evident: that all men are created equal.’” King, I Have A

Dream (1963) reprinted in A TESTAMENT OF HOPE: THE

ESSENTIAL WRITINGS AND SPEECHES OF MARTIN LUTHER

KING, JR. 217, 219 (James Washington ed. 1986).

The evils of racial discrimination are not lessened

because they are allegedly created to benefit previously

excluded groups. After the Civil War, new racist laws, such

as Black Codes and Jim Crow laws, were created in order

to keep newly freed slaves from voting, earning a living, or

owning property. But the paternalism of “benign” whites

limited the freedom of blacks in many ways, too. The

former slave Frederick Douglass addressed this problem

when he wrote that “in regard to the colored people, there is

always more that is benevolent, I perceive, than just,

manifested toward us. What I ask for the Negro is not

benevolence, not pity, not sympathy, but simply justice.”

Frederick Douglass, What The Black Man Wants (Jan. 26,

1865), reprinted in 4 FREDERICK DOUGLASS PAPERS 59, 68-

69 (Blassingame & McKivigan, eds. 1991). Douglass

continued:

Everybody has asked the question...“What shall we

do with the Negro?” I have had but one answer

from the beginning. Do nothing with us!.... All I ask

is, give him a chance to stand on his own legs!.... If

you will only untie his hands, and give him a

chance, I think he will live.

Douglass understood that paternalistic programs such as

this one “constitute badges of slavery and servitude.” Civil

Rights Cases, 109 U.S. 3, 36 (1882) (Harlan, J., dissenting).

They are akin to legislation that once blocked women from

entering a variety of professions, which was “apparently

designed to benefit or protect women [but] could often,

perversely, have the opposite effect.” Ruth Bader Ginsburg,

Constitutional Adjudication in the United States As A

Means of Advancing The Equal Statute of Men And Women

Under The Law, 26 HOFSTRA L. REV. 263, 269 (Winter,

1997). Such legislation was “ostensibly to shield or favor

the sex regarded as fairer but weaker, and dependent-

prone,” id., but was in fact “premised on the notion that

women could not cope with the world beyond hearth and

home without a father, husband, or big brother to guide

them.” /d., at 270.

In exactly the same way, racial preferences, whether in

hiring or contracting, the provision of government benefits,

or, as here, in law school admissions, are ostensibly

designed to shield minority group members, but in fact are

premised on the notion that they are incapable of

competing without a big brother—a white big brother—to

guide them.’

As Justice Douglas wrote, “A [person] who is white is

entitled to no advantage by reason of that fact; nor is he

subject to any disability, no matter what his race or color.

Whatever his race, he had a constitutional right to have his

application considered on its individual merifs in a racially

neutral manner.” DeFunis v. Odegaard 416 U.S. 312, 337

(1974) (Douglas, J., dissenting); see also Bakke, 438 U.S.

at 298 (“there is a measure of inequity in forcing innocent

* Unfortunately, the results of such “benign” discrimination have often

been just as bad for their alleged beneficiaries as were the ills which

gave rise to such programs. See, e.g., T. SOWELL, THE ECONOMICS AND

POLITICS OF RACE 200 (1983) (illustrating “counterproductive trends”

caused by “beneficial” discrimination. )

9

persons in [Bakke’s} position to bear the burdens of

redressing grievances not of their making”); id., at 290

(“The guarantee of equal protection cannot mean one thing

when applied to one individual and something else when

applied to a person of another color’).

C. The Court Erred In Holding That This Program

Was Tailored to Achieve “Diversity.”

Even if the Circuit Court's interpretation of Bakke were

correct, the Circuit Court erred by holding—without any

actual discussion—that the Law School’s admissions policy

actually serves the purpose of diversity. Strict Scrutiny

requires that the policy be narrowly tailored to advance that

purpose. Bakke, 438 U.S. at 294-295; Adarand, 515 U.S. at

227. “Racial classifications are simply too pernicious to

permit any but the most exact connection between justifica-

tion and classification.” Wygant v. Jackson Bd. of Educ.,

476 U.S. 267, 280 (1986) (quoting Fullilove v. Klutznick,

448 U.S. 448 (1980) (Stevens, J., dissenting)).

The Court below held that the Law School’s admissions

policy is narrowly tailored because the Law School does

not use a hard “quota” system for admissions, Grutter, 288

F.3d at 745-46, and because “the Law School considers

more than an applicant's race and ethnicity,” id., at 747.

The Circuit Court’s determination is based on an erroneous

reading of this Court’s precedent, however. The Circuit

Court held that “consideration of race-neutral means is

necessary to satisfy the narrowly tailored component of

strict scrutiny.” Jd. at 44. While this may be a necessary

component of narrow tailoring, it is hardly sufficient. See

Johnson, 263 F.3d at 1253-1254 (“the mere fact that race

technically does not insulate a candidate from competition

with other applicants does not, by itself, mean that the

policy is narrowly tailored”). Narrow tailoring is not

satisfied by a policy which is overinclusive or

10

intended to come within the policy’s boundaries, or which

will unjustly reward those who are not within the

government's asserted “compelling interest.” In other

words, if the Law School's desire to achieve a racially

diverse student body is a sufficiently compelling interest—

which it is not—that purpose is not served by creating

preferences for blacks and Hispanics at the expense of, e.g.,

Asian immigrants. As the dissent below noted, Chinese or

Jewish immigrants have suffered a great deal of legal

discrimination in American history, and their life

experiences might be far richer than that of an upper class

black or Hispanic student, yet the latter would benefit under

the Law School’s policy, at the expense of the former.

More importantly, however, the “diversity” rationale is

inherently opposed to the principles of equality enunciated

in the Declaration of Independence and the Fourteenth

Amendment. This was made clear by one of the concurring

opinions in the court below, which claimed that “a

comparably-situated white applicant is a ‘different person’

from the black applicant [because] this black applicant may

very well bring to the student body life experiences rich in

black race has endured in order for the black applicant even

to have the opportunities and privileges to learn.” Grutter,

288 F.3d, at 764 (Clay, J., concurring). In other words, an

applicant’s race is the determining factor in that applicant’s

character and quality as a student. According to this view, a

black applicant is inherently different from—is not equal

to—the white applicant, because the content of the

applicant's mind is thus determined by his race. This is the

very definition of racism. See AMERICAN HERITAGE

DICTIONARY (4th Ed. 2000) (“Racism: the belief that race

accounts for differences in human character or ability and

that a particular race is superior to others.”) It is

fundamentally contrary to the principle of equality to

ll

presume that a person’s contributions to the classroom will

be determined by the person’s race.

Such discrimination is morally wrong because it “treats

the accidental feature of race as an essential feature of the

human persona [and thus violates the principles of human

nature—those principles in The Declaration of Indepen-

dence that are said to stem from the proposition that ‘all

men are created equal.’” Edward Erler, The Future of Civil

Rights: Affirmative Action Redivivus, 11 NOTRE DAME J. L.

Etuics & Pus. PoL’y 15, 49 n. 132 (1997). As Charles

Sumner, one of the principal authors of the Fourteenth

Amendment’s Equal Protection Clause, wrote:

[The principle of equality) is the national heart, the

which must inspire our interpretation of the Consti-

tution and enter into and diffuse itself through all

the national legislation. Such are the commanding

authorities which constitute ‘Life, Liberty, and the

Pursuit of Happiness,’ and in more general words,

‘the Rights of human Nature,’ without distinction of

race...as the basis of our national institutions. They

need no additional support.

Charles Sumner, The Barbarism of Slavery (1860)

reprinted in Against SLAVERY: AN ABOLITIONIST READER

313, 320 (Mason Lowance, ed. 2000).

The admissions policy is also not narrowly tailored in

that it punishes innocent members of disfavored racial

groups in order to “remedy” past discrimination. “Individu-

als who have been wronged by unlawful racial discrimina-

tion should be made whole; but under our Constitution

there can be no such thing as either a creditor or a debtor

race. That concept is alien to the Constitution’s focus on

the individual.” Adarand, 515 U.S., at 239 (Scalia, J.,

concurring in part and concurring in the judgment). In all,

12

“(t}he vice...[is} not in the resulting injury but in the

placing of the power of the State behind a racial classifica-

tion that induces racial prejudice....” Anderson v. Martin,

375 U.S. 399 (1964).

Il. THE CIRCUIT COURT OPINION CON-

FLICTS WITH THE OPINIONS OF OTHER

CIRCUIT COURTS.

In Hopwood, the Fifth Circuit Court of Appeals noted

that this Court has never held racial diversity to be a

sufficiently compelling purpose to allow government to

discriminate based on race. According to Hopwood,

“precedent shows that the diversity interest will not satisfy

strict scrutiny.” 78 F.3d at 944; see also Hopwood v. Texas,

236 F.3d 256, 275 (Sth Cir. 2000) (noting that Bakke did

not “approve student body diversity as a justification for a

race-based admission criterion”). The Fifth Circuit's

decision in Hopwood creates a clear conflict between the

Circuits, which can only be resolved by this Court.

It is especially important to resolve this conflict because

of the large number of cases currently in litigation, or

discriminatory government programs. For example, in

Johnson v. Bd. of Regents, 263 F.3d 1234 (11™ Cir. 2001),

the Eleventh Circuit held that the University of Georgia

could not use a racially discriminatory admissions policy.

Although the Johnson court did not reach the question of

whether the “diversity” rationale justified a racially

discriminatory admissions policy, id. at 1244-1245, it did

note in dicta that “a majority of the Supreme Court has

never agreed that student body diversity is, or may be, a

compelling interest sufficient to justify a university's

consideration of race in making admissions decisions.” The _

court was “unconvinced” that “Justice Powell's opinion 23

years ago in Bakke—which no other Justice joined—

13

constitutes binding precedent and requires the lower federal

courts to treat that interest as compelling.” Jd, at 1245.

Similarly, the Fourth Circuit has held that racial

preferences in school admissions are only permissible in

remedying actual articulable cases of past discrimination.

Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), cert.

denied 514 U.S. 1128 (1995).

This Court has held that “Equal protection of the laws is

not achieved through indiscriminate imposition of inequal-

ities.” Shelley v. Kraemer, 334 U.S. 1, 22 (1948). Yet such

racially discriminatory impositions exist throughout the

nation, and are becoming the subject of increasing numbers

of court challenges. A resolution of this question—to what

extent government my legally discriminate against some

citizens for the benefit of others—is therefore becoming

increasingly vital to millions of Americans.

Ill. THE PROCEDURES FOLLOWED BY THE

COURT BELOW AND BY OTHER COURTS

IN SIMILAR CASES DEMONSTRATE THAT

THIS COURT FACE THE SAME OBSTACLES

IN ENDING “BENIGN” RACISM THAT IT

FACED IN THE BROWN ERA.

A. Racial Classifications Are Not Eradicated Easily.

Unfortunately, experience has shown that racism is not

overcome easily, whether it be in segregated schools or in

legal classifications like this racial set-aside program. This

Court spent more than two decades fighting such

classifications after the Brown I case. See Griffin v. County

Sch. Bd., 377 U.S. 430 (1968); Green v. County Sch. Bd.,

391 U.S. 430 (1968); Brown v. Board of Ed., 349 U.S. 294

(1955) (“Brown II’); Cooper v. Aaron, 358 U.S. 1 (1958);

Loving v. Virginia, 388 U.S. 1 (1967); Dayton Bd. of Ed. v.

Brinkman, 443 U.S. 526 (1979). Since then, America has

14

made remarkable progress. Today, Americans generally

believe that race is an illegitimate factor for government

classification. Across the country, Americans have rejected

the notion of racial classifications, including supposedly

“benign” ones. See Clint Bolick, Blacks and Whites on

Common Ground, 10 STAN. L. & POL’y REV 155, 158

(Spring 1999); T EASTLAND, ENDING AFFIRMATIVE

ACTION: THE CASE FOR COLORBLIND JUSTICE 164-165 (2d

ed. 1997). States have begun to incorporate Justice Harlan’s

Plessy dissent into law. See Cal. Const. art. I, 31, cl. A

(1996) (Proposition 209); Hi-Voltage Wire Works, Inc. v.

City of San Jose, 24 Cal. 4th 537 (2000) (noting that

Proposition 209 “adopt[s] the original construction of the

Civil Rights Act”); ARCW § 49.60.400 (1) (Washington

Initiative 200).

“In a nearly unbroken line of recent decisions, federal

courts in recent years consistently have struck down racial

preference policies adopted by federal, state, and local

governments.” Clint Bolick, Jurisprudence in Wonderland:

Why Judge Henderson’s Decision Was Wrong, 2 TEX REV.

LAW & POL. 60 (Fall, 1997); see, e.g., Hopwood, supra;

Maryland Troopers Ass'n v. Evans, 993 F.2d 1072 (4th Cir.

1993); Koski v. Gainer, No. 92-C-3293, 1995 WL 599052

(N.D. Ill. Oct. 5, 1995) (mem. op.); Ensley Branch, NAACP

v. Seibels, 31 F.3d 1548 (11th Cir. 1994); but see Smith v.

Univ. of Washington Law Sch., 233 F.3d 1188 (9th Cir.

2000), cert. denied, 532 U.S. 1051 (May 29, 2001).

Yet today, defenders of racially discriminatory laws, as

emphatic as their predecessors in the 1950s, are exhibiting

the same determination to avoid the commands of the

Equal Protection Clause. The time for government to cease

treating individuals on the basis of their skin color rather

than their merit is long overdue. As this Court held in City

of Richmond v. J.A. Croson Co., any discrimination on the

basis of race must cease, except (perhaps) as a remedy for

government’s own prior or continuing discrimination on

15

the basis of race. 488 U.S. 469 (1989); see also Adarand,

515 U.S., at 239 (Scalia, J., concurring in part and

concurring in the judgment) (“Individuals who have been

wronged by unlawful racial discrimination should be made

whole; but under our Constitution there can be no such

thing as either a creditor or a debtor race. That concept is

alien to the Constitution’s focus on the individual”). “The

time for mere ‘deliberate speed’ [to fully enforce this

principle} has run out.” Griffin, 377 U.S. at 234; see also

Green v. County Sch. Bd., 391 U.S. 430 (1968); cf. Brown

II, 349 U.S. at 301 (ordering that assignment of pupils to

schools based on race be ended “with all deliberate speed”).

B. Defenders of Racial Discrimination Are Refusing

to Implement The Demands of The Equal Pro-

tection Clause.

For examples of the defiance demonstrated by today’s

defenders of racially discriminatory laws, consider some

recent cases:

© Grutter v. Bollinger: As the procedural appendix in the

dissent below notes, this case was the subject of a

number of questionable procedures. The appeal was

first assigned to a panel consisting of two judges who

had heard an ear'ier interlocutory appeal in the case,

and was filled out by the Chief Judge of the Circuit,

who appointed himself rather than accepting a random

assignment. The panel (or perhaps the Chief Judge

alone) then waited to refer a motion for initial hearing

en banc until after two Circuit Judges (both appointed

by President Reagan) had taken senior status. While

this Court should be reluctant to find that the Circuit

was engaged in result-driven improprieties, these ex-

tremely unusual procedures at least raise the appearance

16

~

that the court below may have been stacked with judges

sympathetic to the Law School.

Adarand Constructors v. Pena, 515 U.S. 200 (1995):

This Court held that federal “set-aside” programs were

subject to strict scrutiny, and remanded the case to the

Tenth Circuit, which sent the case back to the District

Court. Using strict scrutiny, the District Court held the

program unconstitutional. 965 F. Supp. 1556 (D. Co.

1997). While that decision was on appeal, the Circuit

Court declared that the plaintiff, a white contractor, had

been the victim of racial discrimination and was

therefore a member of a disadvantaged minority. As a

result, the court held, the plaintiff's case was moot. 169

F.3d 1292 (1999). This Court reversed this attempt to

deprive the plaintiff of his day in court. 528 U.S. 216

(2000). The Circuit Court then, under the pretext of

applying strict scrutiny, but in fact applying intermedi-

ate scrutiny, nevertheless upheld the racial classifica-

tion. 228 F.3d 1147 (2000). This: Court was again

required to grant certiorari, but later dismissed the case

for procedural reasons. 534 U.S. 103 (2001).

Coalition for Economic Equity v. Wilson, 122 F.3d 692

(9th Cir. 1997), cert. denied, 522 U.S. 963 (1997):

Wilson involved a challenge to California’s Proposition

209, which prohibited the state government from

discriminating against or granting preferential treatment

to any individual or group on the basis of race. In a

clever version of “forum shopping,” the plaintiffs

persuaded a party to an unrelated case (F.W. Spencer &

Son, Inc. v. City and County of San Francisco, C 95-

4242 TEH) toy amend its pleading to include a request

for a ruling on the constitutionality of Prop. 209. Once

this amendment was accepted by the court, the judge in

that court was therefore empowered to take over the

17

Wilson case from the judge to whom it had originally

been assigned. See Gail Heriot, University of California

Admissions under Proposition 209: Unheralded Gains

Face An Uncertain Future, 6 NEXus: J OP. 163, 167, n

26 (2001); Carol Ness, Prop. 209 Foes Win Effort to be

Heard in S.F. Court, SAN FRANCISCO EXAMINER Nov.

14, 1996 at AS; Doug Bandow, No Justice for

Proposition 209, WASHINGTON TIMES Jan. 14, 1997 at

Al15. This judge then, coincidentally enough, ruled in

favor of the plaintiffs. 946 F. Supp. 1480 (N.D. Ca.

1996). The Ninth Circuit later reversed.

Experience has shown that racial discrimination is not

easily eradicated. Professor Lino Graglia points out the

“intense resistance that can be expected from academics

and the educational bureaucracy” in eliminating racial

preferences. Despite California’s state laws prohibiting

such preferences, for instance, “the Governor and the Board

of Regents have encountered the recalcitrance, not to say

insubordination, of the President of the University System

who is seeking to delay implementation of [a racially-

neutral admissions policy] as long as possible.” Lino

Graglia, “Affirmative Action,” Past, Present, And Future,

22 OHIO N.U.L. REV. 1207, 1219 (1996). The federal

government’s response to this Court’s decision in Adarand

Constructors parallels California’s experience. As one

commentator notes, despite Adarand’s holding, awards to

racially preference contractors actually increased in the

years following the decision. No honest attempt has been

made to fix the problems with the program at issue in

Adarand—instead, those who defend racially discrimina-

tory laws have sought “to marginalize Adarand’s holdings

by tinkering with the operation of set-aside programs, but

by no means calling for their termination.” R. Brad Malone,

Note: Marginalizing Adarand: Political Inertia and the

18

SBA 8(A) Program, 5 TEX. WESLEYAN L. REV. 275, 298-

299 (Spring 1999).

These facts reveal that the political opposition to the

demands of the Equal Protection Clause is every bit as

powerful as the opposition this Court faced in the years

following Brown. What Martin Luther King said in 1964 is

equally true today: “the announcement of the high court has

been met with declarations of defiance. Once recovered

from their initial outrage, these defenders of the status quo

had seized the offensive to impose their own schedule of

change.” MARTIN LUTHER KING, WHY WE CAN’T WAIT 5-6

(1964). Only by insisting, as the post-Brown Court did, that

racial discrimination is no longer tolerable, can this Court

end racial classifications in the law.

C. The Time To End Racial Categorizations in The

Law Is Now.

Barbara Grutter asks only for a fair chance at a legal

education. Now, as this Court faces increasing recalcitrance

against eliminating legal classifications in the law, it must

speak with the same language it used in the post-Brown II

cases. “The vitality of these constitutional principles cannot

be allowed to yield simply because of disagreement with

them.” Brown II, 349 U.S. at 300.

It is also time to realize that the principles of the

Declaration, codified at long last in the Constitution via the

Fourteenth Amendment, will not countenance racial dis-

crimination that purports to remedy past wrongs against

individuals of one race by conferring benefits upon others

who happen to share the same skin color, at the expense of

those who do not. As Dr. King also noted that August day

on the steps of the Lincoln Memorial, “In the process of

gaining our rightful place [as beneficiaries of the Declara-

tion’s promise of equality,] we must not be guilty of

wrongful deeds.” J Have A Dream, in Washington, supra at

19

218. In short, “there has been entirely too much delibera-

tion and not enough speed in enforcing the constitutional

rights” of the Petitioner in this case. Green, 391 U.S. at

229. It is now for this Court to say, as it said in Green, this

recalcitranee. is unacceptable and that legal categorization

by race must end “now.” Id. at 439.

In the marble above the grand entrance to this Court are

chiseled the words, “EQUAL JUSTICE UNDER LAW.” The

Court should grant certiorari in this case and reaffirm this

principle by holding that legally dividing Americans by

race is unconstitutional under any circumstances. It should

embrace the doctrine of complete racial equality, and stand

“for what is best in the American dream and for the most

sacred values in our Judeo-Christian heritage, thereby

bringing our nation back to those great wells of democracy

which were dug deep by the founding fathers in their

formulation of the Constitution and the Declaration of

Independence.” Martin Luther King, Letter from Birming-

ham Jail, reprinted in WHY WE CAN’T WAIT supra at 99.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

John C. Eastman, Of Counsel Edwin Meese III

The Claremont Institute Center Counsel of Record

for Constitutional Jurisprudence 214 Massachusetts Ave. N.E.,

One University Drive Washington, D.C. 20002

Orange, CA 92866 (202) 546-4400

(714) 628-2500

Counsel for Amicus Curiae The Claremont Institute

Center for Constitutional Jurisprudence

20