# Amicus Curiae Brief — Grutter v. Bollinger

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0591%3A009

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 306

## Text

» | OCT 29 2Me

|
|
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0591%3A009. Public record. Not legal advice.