Amicus Curiae Brief — Grutter v. Bollinger

No. 02-241 FIL&D

Supreme Court of the Anited States

P | OFFice OF TR GL aRK

BARBARA GRUTTER,

Petitioner,

v.

LEE BOLLINGER, et al.,

Respondents.

Sd

On Writ Of Certiorari To The

United States Court Of Appeals

For The Sixth Circuit

7

No. 02-516

JENNIFER GRATZ and PATRICK HAMACHER,

Petitioners,

v.

LEE BOLLINGER, et al.,

Respondents.

¢

On Writ Of Certiorari Before Judgment

To The United States Court Of Appeals

For The Sixth Circuit

¢

BRIEF AMICUS CURIAE OF WARD CONNERLY

IN SUPPORT OF PETITIONERS

¢

MANUEL S. KLAUSNER, Counsel of Record

INDIVIDUAL RIGHTS FOUNDATION

One Bunker Hill Building, Eighth Floor

601 West Fifth Street

Los Angeles, California 90071

213.617.0414

PATRICK J. MANSHARDT

One Bunker Hill Building, Eighth Floor

601 West Fifth Street

Los Angeles, California 90071

213.688.4045

Counsel for Amicus Curiae Ward Connerly

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964 X%4 PP

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Does the University of Michigan’s use of racial

preferences in undergraduate and law school admissions

violate the Equal Protection Clause of the Fourteenth

Amendment, Title VI of the Civil Rights Act of 1964 (42

U.S.C. § 2000d), or 42 U.S.C. § 1981?

,

TABLE OF CONTENTS

Page

I IDENTITY AND INTEREST OF AMICUS

CURIAR. ...cccecceccesssinesemasnimsiaan 1

II SUMMARY OF ARGUMENT............c:c000000000 2

III STATEMENT OF THE CASE.............:000c000000+ 5

Me 1), a 6

A. The History of the United States and the

Supreme Court’s Jurisprudence on Race

Demonstrate that the Equal Protection

Clause and Other Federal Laws Should

Be Interpreted to Prohibit Race-Based

Preferences and Discrimination .............. 6

B. As Long as the Government Deems It

Important to Treat Black and Hispanic

Students Differently, They Will Be Mar-

ginalized and Presumed to Be Inade-

QUIRED ...ccoccocccocssesscsessensonseaninniemeimmmmmaanaa 13

C. The Court Should Make a Clean Break

from the Past and Reject the Use of Race

by Government in Favor of Making True

Color-Blindness the Law ...................c00++: 15

D. Permitting the Government to Practice

Racial Discrimination in the Name of

“Diversity” Is Dangerous to the Well-

Being of Our Society and Repudiates the

“Culture of Equality” that Has Evolved

9D REIGUEED cccccccceuccphassctsentenntinmniaibiaimiaiaad 17

E. The Diversity Rationale Is Incoherent

ON TRIED cccccnicstennnsavcmninncuiniitinneiaite 22

VV CBIR EIS ccccseccscosessestmomnticiinniienmmeiiensete 27

TABLE OF AUTHORITIES

Page

CASES:

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

i eeeerarrtinenenemenenenenennanneneenenees 10, 20, 21

Brown v. Board of Education, 437 U.S. 483

I iietitteiciiaieepepnnenenenananennanesascesusneeeneeesees 7, 8, 11, 12, 13

City of Richmond v. J.A. Croson Co., 488 U.S. 469

EE 10, 17, 27

Connerly v. State Personnel Bd., 92 Cal. App. 4th 16

ceric rrrricenetnnennenamannanenatanassaesenss 2

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

cert. granted, 123 S. Ct. 617 (Dec. 2, 2002).................00.. 1

Hirabayashi v. United States, 320 U.S. 81 (1943).............. 2

Hi-Voltage Wire Works, Inc. v. City of San Jose, 24

nse nenrenennsemncnmnnenenennennennes 2, 6, 7, 8, 10

Ho v. San Francisco Unified School Dist., 147 F.3d

Ce 7, 24, 25, 26

Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert.

denied, 518 U.S. 1033 (1996) ...............cccccccccccccccccccseeeees 17

Johnson v. Board of Regents of the Univ. of Georgia,

263 F.3d 1234 (lith Cir. 2001)...........................ccccccseeees 17

Lutheran Church-Missouri Synod v. Federal Com-

munications Comm'n, 141 F.3d 344 (D.C. Cir.

EE 27

Monterey Mechanical Co. v. Wilson, 125 F.3d 702

Te 3, 20

Price v. Civil Service Comm'n, 26 Cal. 3d 257

Ee 9, 19, 20

iv

TABLE OF AUTHORITIES - Continued

Page

Regents of the University of California v. Bakke, 438

ee SI crenscnsinsnenensemenpenntndnnaniaidaietpmuniiesiieammammmants 1

United Steelworkers of America v. Weber, 433 U.S.

Re 10

RULES:

| ee 1

a 1

Other Authorities:

Ward Connerly, Observations Concerning the Univer-

sity of Michigan Cases (Jan. 3, 2003)....................0-+ passim

Ward Connerly, Q: Does Diversity in Higher Educa-

tion Justify Racial Preferences?; A: No: Diversity of

Viewpoint, Not Racial Set-Asides Based on Stereo-

types, Should Guide Admissions, Insight on the

(Gee 3

Stuart Taylor, Jr., Do African-Americans Really

Want Racial Preferences? Nat’! J., Dec. 20, 2002........... 13

SHELBY STEELE, A DREAM DEFERRED: THE SECOND

BETRAYAL OF BLACK FREEDOM IN AMERICA 34

GE censnsnsnasennscnmmsnsmneninmaitienmnipenninnienienanieienes 14

U.S. Gov’t’s Amicus Brief, in Brown v. Board of

er 5, 11, 12

1

I IDENTITY AND INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, Ward Connerly

respectfully submits this brief amicus curiae in support of

Petitioners. All parties consented to the filing of this brief

and their letters of consent have been lodged with the

Clerk of this Court.’

Connerly, as amicus curiae, intends to brief issues not

expected to be adequately covered by the parties in their

briefs on the merits. Specifically, Connerly is in a unique

position to brief the issues in this case because he is a

long-time member of the University of California Board of

Regents, whose race-based admissions program at the

medical school at the University’s Davis campus was the

subject of the Court’s opinion in Regents of the University

of California v. Bakke, 438 U.S. 265 (1978). In Bakke,

Justice Powell cited the rationale of diversity as a compel-

ling governmental interest in permitting the use of race as

a “plus” factor in university admissions. Jd. at 316-18. It

was the diversity rationale solely articulated by Justice

Powell on which the Sixth Circuit held that “diversity” was

a compelling interest as a matter of law. Grutter v. Bollin-

ger, 288 F.3d 732, 757 (6th Cir. 2002), cert. granted, 123

S. Ct. 617 (Dec. 2, 2002) (No. 02-241).

2

Connerly focused the attention of the nation on the

University’s race-based system of preferences in its admis-

sions policy and in July 1995, following Connerly’s lead, a

majority of Regents voted to end the University’s use of

race as a means for admissions.

Connerly was also the Chairman of the Yes-on-209

campaign, a 1996 California ballot initiative which banned

the use of race- and gender-based preferences in public

education, public employment and public contracting.

Connerly was also a signatory of the argument appearing

in the ballot pamphlet on Proposition 209 and has partici-

pated as amicus curiae in Ai-Voltage Wire Works, Inc. v.

City of San Jose, 24 Cal. 4th 537, 545 (2000). Connerly

was also a plaintiff in Connerly v. State Personnel Bd., 92

Cal. App. 4th 16 (2001), which involved the application of

Proposition 209 to a number of state administrative

agencies.

II SUMMARY OF ARGUMENT

“Distinctions between citizens solely because of their

ancestry are by their very nature odious to a free people

whose institutions are founded upon the doctrine of

equality,” and “racial discriminations are in most circum-

stances irrelevant and therefore prohibited .... ” Hiraba-

yashi v. United States, 320 U.S. 81, 100 (1943). With

respect to the idea that some discrimination is benign, the

Ninth Circuit has observed:

Te exterttn Ged, ciate Gatetetien,

wrong is what makes discrimination against

groups of which we are not members wrong even

if the beneficiaries are members of groups whose

fortunes we would like to advance.

3

Monterey Mechanical Co. v. Wilson, 125 F.3d 702, 707-08

(9th Cir. 1997).

“Whether in the public or private sectors, the quest for

diversity has become a new American creed . . . [but] most

Americans are still perplexed at its meaning.” Ward

Connerly, Observations Concerning the University of

Michigan Cases (Jan. 3, 2003) (on file at the offices of the

Individual Rights Foundation) (“Connerly Statement”).

“On the one hand, if diversity means racial integration,

then most Americans support it.” Jd. But “if it means a

system of racial classifications and preferences that must

be recalibrated periodically to reach a target ‘goal,’ then

most Americans are opposed.” Ward Connerly, Q: Does

Diversity in Higher Education Justify Racial Preferences?;

A: No: Diversity of Viewpoint, Not Racial Set-Asides Based

on Stereotypes, Should Guide Admissions, Insight on the

News, May, 14, 2001, at 40.

“In reality, diversity is little more than a Potemkin

village of strict racial proportionality.” Jd. “Diversity has

[now] become untethered from integration and has as-

sumed a life of its own.” Jd. “For the racial advocacy

groups and their allies, in higher education, diversity is

now integration’s rival.” Jd.

“The ‘diversity rationale’ relies upon and reinforces a

rigid and fixed system of racial classification and categori-

zation in a nation of ever-changing and expanding demo-

graphics and characteristics. It is time for America to get

beyond ‘race’ and the ‘one-drop’ rule that underpin ‘diversity

building.’ The Court should make a clean break from these

governmental practices of using race to one in which race

becomes irrelevant. True colorblindness should become the

law, and ‘race’ should be rejected.” Connerly Statement.

4

It is also true that as long as the government deems it

important to treat black and Hispanic students differently,

they will be marginalized and presumed to be inadequate.

Further, “[g]ranting any government agency the legal

authority to practice racial discrimination in the ordinary

course of its activities is dangerous to the well-being of our

society and repudiates the ‘culture of equality’ that has

evolved in America” over the last fifty years. Connerly

Statement.

The “diversity rationale” is also incoherent and

illegitimate in that Universities are not genuinely con-

cerned with “real diversity,” (e.g., diversity of thought).

Moreover, diversity is fraudulently used because no other

rationale, for the use of race- and ethnic-based preferences

in public education has been permitted by the Court.

Additionally, “diversity” does not even appear to be

the real substantive policy advanced by the University’s

preferences in that it can not be separately identified from

correcting underrepresentation — or put differently, simple

racial balancing.

The Court’s grant of certiorari in this case once again

puts the nation at a crossroads with regard to the govern-

ment’s continued consideration of race iu public life.

Throughout our history, there have been many critical

moments in which we as a nation have been called upon to

answer the following questions: What does America stand

for? Was the Declaration of Independence mere rhetoric or

did it outline a framework to guide the moral and civic

development of our young nation? Is the guarantee of

equal treatment to “every person” contained in the Four-

teenth Amendment of our Constitution something on

which we can rely as we engage in daily transactions with

5

our government? Was it the purpose of the “civil rights”

movement to end the morally abhorrent practice of dis-

criminating against black people so that we could dis-

criminate in favor of them? Or, was it the purpose of that

tumultuous period in our nation’s history to end the

practice of discriminating against any American citizen on

the basis of their race or skin color or the origin of their

ancestors?

“Under the Constitution, every agency of government,

national and local, legisiative, executive, and judicial,

must treat each of our people as an American, and not as

some member of a particular group classified on the basis

of race or some other constitutional irrelevancy.” Connerly

Statement (quoting U.S. Gov't’s Amicus Brief in Brown v.

Board of Education).

“The color of a man’s skin — like his religious beliefs,

or his political attachments, or the country from which he

or his ancestors came to the United States — does not

diminish or alter his legal status or constitutional rights.

‘Our constitution is color-blind, and neither knows nor

tolerates classes among citizens.’” Connerly Statement

(quoting Plessy v. Ferguson, 163 U.S. 537, 559-60 (1896)

(Harlan, J., dissenting)).

III STATEMENT OF THE CASE

Connerly adopts the Statement of the Case set forth

in the Petitions for Writ of Certiorari.

IV ARGUMENT

A. The History of the United States and the

Supreme Court’s Jurisprudence on Race

Demonstrate that the Equal Protection

Clause and Other Federal Laws Should Be

Interpreted to Prohibit Race-Based Pref-

erences and Discrimination.

As California Supreme Court Justice Janice Brown

eloquently stated:

The United States was founded on the princi-

ple that “all men are created equal, that they are

endowed by their Creator with certain unalienable

Rights, that among these are life, liberty and the

pursuit of happiness.” (Declaration of Independ-

ence.) Yet our history reflects a continuing struggle

to enable every individual to fully realize this “self-

evident” article of faith. (See University of Califor-

nia Regents v. Bakke, 438 U.S. 265, 387-395, 98

S. Ct. 2733, 57 L.Ed.2d 750 (conc. & dis. Opn. of

Marshall, J). That struggle demarcates the histori-

cal and cultural context within which we decide the

issue before us.

Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th

537 (2000).

Hi-Voltage held that the City of San Jose’s “targeted”

outreach to minority- and women-owned business violated

the California Constitution’s outright ban on race- and

gender-based preferences. In Hi-Voltage, Justice Brown

noted that “the Courts have been instrumental in effecting

positive change in the quest for equality, [but] their

involvement in articulating a coherent vision of the civil

rights guaranteed by our Constitution has not been

without its low points.” Hi-Voltage, 24 Cal. 4th at 545

7

(citing Dred Scott v. Stanford, 60 U.S. (19 How.) 393, 405

(1856), where the Court denied citizen status to blacks as

its nadir in this area). In legitimizing the “pernicious

concept” that blacks “had no rights that the white man

was bound to respect” (Dred Scott, 60 U.S. at 449-52), the

“Court set the stage not only for the cataclysm of the Civil

War but for the contentiousness that continues to this day

over government's proper role with respect to race.” Hi-

Voltage, 24 Cal. 4th at 546.

After the Civil War, “Congress overturned the Dred

Scott decision when it adopted the Fourteenth Amend-

ment.” Jd. But nevertheless, the Court “validated govern-

ment-initiated racial restrictions and gave its imprimatur

to legally enforced segregation,” and it approved “separate

but equal” accommodations. /d. (citing Plessy v. Ferguson,

163 U.S. 537, 552 (1896)).

In his dissent in Plessy, Justice Harlan set forth his

view of a color-blind constitution:

Our constitution is color-blind, and neither

knows nor tolerates classes among citizens... .

The destinies of the two races, in this country,

are indissolubly linked together, and the inter-

ests of both require that the common government

of all shall not permit the seeds of race hate to be

planted under the sanction of law.

Plessy, 163 U.S. at 559-60 (Harlan, J., dissenting).

“It is [still] less than half a century ago that this

governmental use of race as an instrument of discrimina-

tion was finally repudiated.” Ho v. San Francisco Unified

School Dist., 147 F.3d 854, 863 (9th Cir. 1998). In Brown v.

Board of Education, 437 U.S. 483 (1954), a unanimous

Court adopted Justice Harlan’s color-blind view and

8

repudiated Plessy by concluding that “in the field of public

education the doctrine of ‘separate but equal’ has no place.

Separate educational facilities are inherently unequal

[and] deprive[ } [those affected] of the equal protection of

the laws guaranteed by the Fourteenth Amendment.” Hi-

Voltage, 24 Cal. 4th at 546 (quoting Brown, 347 U.S. at

495). After Brown, courts “did not hesitate to apply its

animating principles in other contexts.” Hi-Voltage, 24 Cal.

4th at 547 (citing Van Alstyne, Rites of Passage: Race, the

Supreme Court and the Constitution, 46 U. Chi. L. Rev.

775, 783, n.24 (1979)). Professor Van Alstyne summarized

the common thread in the cases in the years between 1955

and 1976 following Brown by stating “virtually every other

race-related decision by the Supreme Court appeared to

convey” Justice Harlan’s conviction “that the Civil War

amendments altogether ‘removed the race line from our

governmental systems.’” Hi-Voltage, 24 Cal. 4th at 547.

“Professor Alexander Bickel referred to these cases as

‘the great decisions of the Supreme Court’ whose lesson .. .

[has] been the same for at least a generation: discrimina-

tion on the basis of race is illegal, immoral, unconstitu-

tional, inherently wrong, and destructive of democratic

society.” Hi-Voltage, 24 Cal. 4th at 548 (quoting Bickel,

The Morality of Consent, 133 (1975)).

The recalcitrance of local officials to courts’ orders to

end racial] discrimination prompted Congress to enact the

Civil Rights Act of 1964. Hi-Voltage, 24 Cal. 4th at 549.

United States Senator Hubert Humphrey of Minne-

sota, one of the principal supporters of the Civil Rights Act

of 1964 declared with respect to Title VII of the Act:

9

“Contrary to the allegations of some opponents of

this title, there is nothing in it that will give any

power to the Commission or to any court to re-

quire hiring, firing, or promotion of employees in

order to meet a racial “quota” or to achieve a cer-

tain racial balance. That bugaboo has been

brought up a dozen times; but it is nonexistent.

In fact, the very opposite is true. Title VII prohib-

its discrimination. . . . In Title VII we seek to pre-

vent discriminatory hiring practices. We seek to

give people an opportunity to be hired on the ba-

sis of merit....”

Price v. Civil Service Comm'n, 26 Cal. 3d 257, 289, 295

(1980) (Mosk, J., dissenting) (emphasis in original omit-

ted).

However, the plain language and legislative history of ©

the Civil Rights Act was betrayed by subsequent judicial

interpretations:

In obvious reference to the charge that the

word “discrimination” in Title VII would be in-

terpreted by federal agencies to mean the ab-

sence of racial balance, the interpretive memo-

randum stated:

“(Section 703] prohibits discrimination

in employment because of race, color,

religion, sex, or national origin. It has

been suggested that the concept of dis-

crimination is vague. In fact it is clear

and simple and has no hidden mean-

ings. To discriminate is to make a dis-

tinction, to make a difference or favor,

and those distinctions or differences in

treatment or favor which are prohibited

by [Section 703] are those which are

10

based on any of the five forbidden crite-

ria: race, color, religion, sex, and na-

tional origin.”

United Steelworkers of America v. Weber, 433 U.S. 193, 239

(1979) (Rehnquist, J., dissenting) (quoting 110 Cong. Rec.

7213 (1964)). Into the Civil Rights Act, the Court now

“introduce[d] into Title VII a tolerance for the very evil

that the law was intended to eradicate, without even

offering a clue what the limits on that tolerance may be.”

Weber, 433 U.S. at 254-55 (Rehnquist, J., dissenting).

“In the wake of Weber, Title VII went through a sea

change in less than a decade .. . from providing individu-

alized restitutionary relief for specific injury to approving

race-conscious practices by court order.” Hi-Voltage, 24

Cal. 4th at 553. “Having once validated consideration of

“race, the United States Supreme Court struggled to

articulate a principled, consistent standard for doing so

given its earlier construction of Title VI1.” Hi-Voltage, 24

Cal. 4th at 553.

In more recent years, the Court has now limited the

use of race in public employment and contracting to those

situations where there has been “convincing evidence that

remedial action is warranted.” Adarand Constructors

Corp. v. Pena, 515 U.S. 200, 236-37 (1995); see also City of

Richmond v. J.A. Croson Co., 488 U.S. 469, 501-02 (1989)

(“where gross statistical disparities can be shown, they

alone in a proper case may constitute prima facie proof of

a pattern or practice of discrimination.”)

This is no less of an important constitutional moment

for the Court’s race jurisprudence. “Since 1954 Americans

have been creating a culture of equality, a culture that has

little tolerance of bigotry and discrimination, a culture in

11

which even a veiled suggestion that segregation was once

acceptable can be sufficient to get one removed from a seat

of enormous political power.” Connerly Statement. The

culture of equality is one “in which people of different

races are marrying across lines of race at an ever-

increasing pace, and a culture in which the very lines of

race are becoming blurred.” Connerly Statement.

“It is through the interpretation and application of

Bakke that the University of Michigan’s College of Litera-

ture, Arts and Sciences and School of Law (“University”)

and government actors elsewhere are attempting to

overthrow the culture of equality.” Jd. “Instead of equal

treatment for every person, the University seeks to apply

different standards to every person in the interest of

achieving the amorphous goal of ‘diversity.’”

“Racial discriminations imposed by law, or having the

sanction or support of government, inevitably tend to

undermine the foundations of a society dedicated to

freedom, justice, and equality. The proposition that all

men are created equal is not mere rhetoric. It implies a

rule of law — an indispensable condition to a civilized

society — under which all men stand equal and alike in the

rights and opportunities secured to them by their govern-

ment.” Jd.

When the federal government filed its amicus curiae

brief in Brown v. Board of Education, the government

faced squarely the question of what it means to be an

American citizen and why racial discrimination is so

abhorrent:

Racial discriminations imposed by law, or having

the sanction or support of government, inevitably

tend to undermine the foundations of a society

12

dedicated to freedom, justice, and equality. The

proposition that all men are created equal is not

mere rhetoric. It implies a rule of law — an indis-

pensable condition to a civilized society — under

which all men stand equal and alike in the rights

and opportunities secured to them by their gov-

ernment. Under the Constitution, every agency

of government, national and local, legislative, ex-

ecutive, and judicial, must treat each of our peo-

ple as an American, and not as some member of a

particular group classified on the basis of race or

some other constitutional irrelevancy. The color

of a man’s skin — like his religious beliefs, or his

political attachments, or the country from which

he or his ancestors came to the United States —

does not diminish or alter his legal status or con-

stitutional rights. “Our constitution is color-

blind, and neither knows nor tolerates classes

among citizens.” [citing Plessy, 163 U.S. at 559-

60 (Harlan, J., dissenting)]

The question presented in this case will be heard

nearly sixty years after the Court heard Brown v. Board of

Education. Connerly submits that if the nine members of

the Court today were hearing THIS case sixty years ago,

each and every Justice would at that time have fully

endorsed and applied Justice Harlan’s view of a color-blind

constitution that was adopted in Brown. The Court’s

intervening digressions in achieving a color-blind constitu-

tion since Brown, quite like those digressions that pre-

ceded Brown, should not stand in the way of a color-blind

constitution being our immediate and final destination.

The Court has an opportunity to say that achieving

racial “diversity” is not sufficient grounds to discriminate.

More importantly, it has a “unique opportunity to advance

the cause of color-blindness by removing its imprimatur

13

from the classification svstem that forms the pillars for the

race-obsessed world in which institutions such as the

University of Michigan reside.” Jd.

B. As Long as the Government Deems it Impor-

tant to Treat Black and Hispanic Students

Differently, They Will Be Marginalized and

Presumed to Be Inadequate.

Not only does the “oft-obscured reality of racial pref-

erences offend[ ] the values of most Americans of all races

... Lit] also fosters pernicious assumptions that black (and

Hispanic) people are and will remain long incapable of

competing on a level playing field with whites and Asians.”

Stuart Taylor Jr., Do African-Americans Really Want

Racial Preferences? Nat'l] J., Dec. 20, 2002. At bottom, the

undeniable message that the defenders of the “diversity

rationale” send is “that black and high school graduates,

and black and Hispanic college graduates applying to

professional schools are so academically weak that elimi-

nating the double standard would lead to pervasive

resegregation.” Jd. Although the intentions of universities

and professional schools may be benign, is there nonethe-

less a resulting stigma of inferiority on every black and

Hispanic student, even those who don’t need preferences?

This is clearly a message that perpetuates, as opposed to

eliminates, the most intractable source of racial inequality

in America today, which is the small number of preferred

minorities who sufficiently excel academically in order to

apply and be admitted to the nation’s universities and

professional schools without the use of preferences. /d.

“As long as the government deems it important to treat

black and Hispanic students differently, they will be

14

marginalized and presumed to be inadequate.” Connerly

Statement.

Further, “(djouble standards, preferential treatment,

. and various kinds of entitlements all constitute a

pattern of exceptionalism that keeps blacks (and other

minorities) down by tolerating weakness at every juncture

where strength is expected of others.” SHELBY STEELE, A

DREAM DEFERRED: THE SECOND BETRAYAL OF BLACK FREE-

DOM IN AMERICA 34 (1998). In Connerly’s view, nowhere is

that “toleration of weakness” more clearly codified than in

the admissions policies practiced at the University of

Michigan.

“The most dehumanizing and defeating thing that can

be done to black Americans ... is to lower a standard in

the name of their race.” Jd. at 113. But there is a remarka-

bly simple antidote: Place the same high expectations on

the minority applicant which are placed on every other

applicant. By so doing, the University would demonstrate

its “faith in that student’s equal humanity, intelligence,

and skill.” Jd. Further, “when [the student] meets that

expectation, his equality becomes unassailable.” Jd.

“Diversity” is essentially a code word for black and

Hispanic inadequacy and racial balancing to correct

resulting underrepresentation. “As long as our government

believes that it can only achieve racial ‘diversity by giving

special consideration to those who would not otherwise be

‘represented’ because of their race, color or ethnic back-

ground, we will suffer what the president [Bush] rightly calls

the ‘soft bigotry of lower expectations.” As long as the

diversity rationale is given governmental legitimacy, every

black and Hispanic student in college will suffer the

15

presumption of inadequacy that is implicit in that ration-

ale. Id.

C. The Court Should Make a Clean Break

from the Past and Reject the Use of Race

by Government in Favor of Making True

Color-Blindness the Law.

It is no longer necessary to use race in American

public life. “Unlike prior instances when the Court has had

to confront the issue of ‘race,’ America is fulfilling the

promise of equal opportunity without regard to race or

ancestry at an unprecedented level in our history.” Con-

nerly Statement. “Like never before, Americans formerly

denied the fullness of what this nation has to offer are now

icons in any number of activities or endeavors.” Jd. “Black

people [and other minorities] now have the opportunity to

excel on the [golf course,] tennis court as well as the

basketball court; in the corporate board room as well as in

the cotton fields; and not only as secretaries, but as Secre-

tary of State.” Id.

“Fourteen years before Bakke, Congress attempted to

settled the question of whether equa! treatment under the

law would be guaranteed to every ‘person’ when it enacted

the Civil Rights Act of 1964.” Jd. “That law, following on

the heels of the tumultuous movement that preceded it,

led by Martin Luther King, Jr., set the stage for the

American people to create a culture of equality in America,

a culture that we celebrate annually to honor Dr. King and

his legacy of ‘color-blindness.’” Jd.

“When the United States Supreme Court ratified the

above principle in Brown v. Board of Education, it poured

the foundation for us to build a culture of equality in our

16

land. The Congress constructed the walls a decade later,

when it enacted the Civil Rights Act of 1964.” Jd. “But, it

remained for us — the American people - to complete the

structure by placing our faith in the principle of equal

treatment and dedicating ourselves to making that princi-

ple the centerpiece of our lives.” Jd. “Thus, we have,

indeed, built a culture of equality, a culture that grants no

tolerance to anyone who would countenance a different

kind of America.” Jd.

“So much has happened to make real the dream of a

color-blind America that the time has come for the gov-

ernment to discontinue the odious practice of classifying

its citizens on the basis of how many drops of blood course

through their veins to be suitably classified as ‘black’ or

‘African American’ or whatever the government wants to

use to define its citizens.” Jd. “The problem of race in

America will not be expunged from American life as long

as the government classifies its citizens on the basis of an

increasingly arbitrary system of classification.” Jd. “The

very premise of ‘diversity’ presupposes and relies upon a

government-sanctioned classification system.” Jd.

This “clean break” would nonetheless not be a radical

break in that much of the United States has already

jettisoned the use of race in public life. In California,

Proposition 209 (Art. I, sec. 31 of the California Constitu-

tion) has altogether banned the use of race- and gender-

based preferences in public employment, public contract-

ing and public education. In the State of Washington, I-

200 had similarly accomplished what first started in

California. At the University of California and the Univer-

sity of Florida, the state university systems have done

away with race and ethnic preferences in favor of admit-

ting the top portion of graduating seniors from each high

17

school. Diversity as a rationale for race and ethnic prefer-

ences in public universities has also been done away with

in both the Fifth and Eleventh Circuits as being incom-

patible with the Fourteenth Amendment’s Equal Protec-

tion Clause. See Hopwood v. Texas, 78 F.3d 932 (5th Cir.

1996), cert. denied, 518 U.S. 1033 (1996); Johnson v. Board

of Regents of the Univ. of Georgia, 263 F.3d 1234 (11th Cir.

2001). The Court should move the rest of the nation in the

same direction by banishing the use of race in admission

to public colleges and universities.

D. Permitting the Government to Practice

Racial Discrimination in the Name of “Di-

versity” Is Dangerous to the Well-Being of

Our Society and Repudiates the “Culture

of Equality” that Has Evolved in America.

The reason for the strict scrutiny analysis of race-

based preferences under the Fourteenth Amendment is

“because there is simply no way of determining what

classification is ‘benign’ or ‘remedial’ and what classifica-

tions are in fact motivated by illegitimate notions of racial

inferiority or simple racial politics.” Croson, 488 U.S. at

493.

As stated above, the Civil Rights Act of 1964 had been

amended by judicial interpretation to permit preferential

treatment for certain groups on the basis of race, sex, and

ethnicity. This is how the University would have the Court

add unwarranted and perverse gloss to the otherwise clear

language of the Equal Protection Clause by holding that

“diversity” is a compelling justification for the use of race-

and ethnic-based preferences at the University. But as a

matter of simple logic, one cannot grant preferences on the

basis of these criteria without discriminating against

18

someone else. Race and ethnic preferences based on

diversity and equal treatment for every person are two

incompatible principles.

With respect to university admissions, life is a zero-

sum game at many “preeminent” (Opposition to Petition at

3) institutions of higher education. As an example, at the

University of California's Berkeley, Los Angeles, San Diego

and Santa Barbara campuses, the Regents receive be-

tween 38,000 and 41,000 applications each year to attend

each of those campuses. But there are only about 3,500

slots at each campus. By granting some students access to

an institution of not unlimited capacity based on race,

administrators are routinely denying that access to other

individuals based on race.

Almost 20 years ago, the late California Supreme

Court Justice Stanley Mosk wrote:

“A quota is a two-edged device: for every one

it includes it cuts someone else out.... ” [¥) If

the Constitution prohibits exclusion of blacks

and other minorities on racial grounds, it cannot

permit the exclusion of whites on similar

grounds; for it must be the exclusion on racial

grounds which offends the Constitution, and not

the particular skin color of the person excluded.

... [D]iscrimination on the basis of race is

illegal, immoral, unconstitutional, inherently

wrong, and destructive of a democratic society.

... However it is rationalized, a preference

to any group constitutes inherent inequality.

Moreover preferences, for any purpose, are

anathema to the very process of democracy.

19

Price v. Civil Service Comm’n, 26 Cal. 3d 257, 289, 299

(1980) (Mosk, J., dissenting). Such preferences, therefore,

violate the nation’s, and Congress’ original understanding

of civil rights.

Chief Justice Rehnquist and California Supreme

Court Justice Mosk both characterized as “Orwellian” the

suggestion that the Civil Rights Act’s prohibition of dis-

crimination did not prohibit discrimination in favor of

minorities:

The wry observation of Justice Rehnquist in

his dissent in United Steelworkers v. Weber

(1979) 443 U.S. 193, 219, applies to this case: “In

a very real sense, the Court’s opinion is ahead of

its time: it could more appropriately been handed

down five years from now, in 1984, a year coin-

ciding with the title of a book from which the

Court’s opinion borrows, perhaps subconsciously,

at least on idea.” That one idea is “doublethink,”

the tortured abuse of words and phrases so that

their meaning and effect become inverted.[FN1]

Thus here the majority purport to eliminate dis-

crimination by means of creating discrimination;

they construe equality of all persons regardless

of race to mean preference of some persons of

some races over others; and a hiring program

which compels compliance by a reluctant district

attorney is described as voluntary. George Orwell

is nodding complacently in his grave, as he wins

vindication even before 1984 for his dire appre-

hensions about the misdirection of society.

FN1 In the “doublethink” and “New-

speak” of Orwell’s 1984 a key word is

“blackwhite.” It means a “loyal willing-

ness to say that black is white,” but in

addition: “the ability to believe that

20

black is white, and forget that one has

ever believed to the contrary.” (Orwell,

1984 (1949) p. 175).

Price, 26 Cal. 3d at 286-87 (Mosk, J., dissenting).

At bottom, the “diversity rationale” urged by the

University would deprive non-preferred students of their

right to protection under the Fourteenth Amendment. The

Ninth Circuit has stated that: “It is heuristically useful, in

sorting out the question of whether a classification is made

from the question whether the classification is permissi-

ble, to hypothesize the same provision in favor of white

male firms.” Monterey Mechanical, 125 F.3d at 711-12.

In his concurrence in the Adarand case, Justice

Thomas wrote:

I write separately, however, to express my

disagreement with the premise .. . that there is a

racial paternalism exception to the principle of

equal protection. I believe that there is a “moral

[and] constitutional equivalence” ... between

laws designed to subjugate a race and those that

distribute benefits on the basis of race in order to

foster some current notion of equality. Govern-

ment cannot make us equal; it can only recog-

nize, respect, and protect us as equal before the

21

those who have a sincere desire to help those

thought to be disadvantaged. There can be no

doubt that the paternalism that appears to lie at

the heart of this program is at war with the prin-

ciple of inherent equality that underlies and in-

fuses our Constitution.... [TJhere can be no

doubt that racial paternalism and its unintended

consequences can be as poisonous and pernicious

as any other form of discrimination. So-called

“benign” discrimination teaches many that be-

cause of chronic and apparently immutable

handicaps, minorities cannot compete with them

without their patronizing indulgence. Inevitably,

such programs engender attitudes of superiority

or, alternatively, provoke resentment among

those who believe that they have been wronged

by the government’s use of race. These programs

stamp minorities with a badge of inferiority and

may cause them to develop dependencies or to

adopt an attitude that they are entitled to pref-

erences.

In my mind, government-sponsored racial

discrimination based on benign prejudice is just

as noxious as discrimination inspired by mali-

cious prejudice. In each instance, it is discrimina-

tion, plain and simple.

law.

That these programs may have been moti-

vated, in part, by good intentions cannot provide

refuge from the principle that under our Consti-

tution, the government may not make distinc-

tions on the basis of race. As far as the

Constitution is concerned, it is irrelevant

whether a government's racial classifications are

drawn by those who wish to oppress a race or by

Adarand, 515 U.S. at 239 (Thomas, J., concurring).

Significantly, however, granting any agency of gov-

ernment the authority to use race, color or national ances-

try to “create diversity,” fundamentally contradicts that

precious principle of equal treatment under the law for

every person. Moreover, the government’s use of race, color

or national ancestry repudiates the “culture of equality”

that has evolved in America over the past sixty years.

22

No court would stand for a university playing with its

admissions policy that in any way downgraded black or

Hispanic achievement. The reverse should also hold true.

E. The Diversity Rationale Is Incoherent and

Illegitimate.

The University states in its opposition to the petition

for certiorari in the Gratz case that “LS&A vigorously

recruits qualified minority applicants. It does so because

in order to provide the educational benefits of racial and

ethnic diversity to all students, learning environments

must include meaningful numbers of minority students.”

Opposition to Petition at 8 (emphasis added).

As a Regent of the University of California for nearly

ten years, Connerly has come to know a great deal about

the practices of higher education with respect to the

matter of race. Connerly Statement. In Connerly’s view,

“the professed value of ‘diversity’ is fraudulently used

because no other rationale,” for the use of race- and ethnic-

based preferences in public education has been permitted

by the Court. It is a fig leaf and nothing more than a

legally sanctioned excuse to discriminate. But the “diver-

sity” rationale and the Equal Protection Clause of the

Fourteenth Amendment are incompatible. They cannot

coexist. Even “allowing the use of race as ‘one among many

factors’ is to renounce all for which our nation stands.”

Connerly Statement.

As a Regent of the University of California, it has also

been Connerly’s experience that the “universitlies’]” claims

about wanting ‘diversity’ are false.” Connerly Statement.

“University administrators care little about intellectual

diversity and they care even less about ensuring that

23

students of different backgrounds benefit from the ‘diver-

sity that the University so proudly trumpets.” Once they

achieve their “critical mass” or as the University put it

“meaningful” numbers of “minority” students, “universities

create campus institutions and events that are designed to

keep students separate on the basis of race — race-based

freshmen orientations, race-based dormitories, race-based

curriculum, even race-based graduation ceremonies.” Jd.

“Of what value is a ‘critical mass’ [or ‘meaningful’) number

of ‘minority’ students if they remain huddled among

themselves, rarely venturing out from the racial safe

havens created by the university?” /d.

“If racial and ethnic ‘diversity’ — however that term is

defined — is of such high value, what are we saying about

the quality of education received by those who attend

‘historically black colleges’ or all-female institutions?” Jd.

“Are we to believe that Martin Luther King Jr. was a man

of inferior education because he attended an institution —

Morehouse College — not known for its diversity?” Id.

Under the University’s description, are we to take it

that black and Hispanic students are merely guinea pigs

or lab rats for the benefit of white’s educational experi-

ence? The Court should remind the people that “students

of color” are not “props” on some great theatrical screen.

The Admissions department of a University is not Central

Casting. The fact that they are seriously arguing for

waivers to educational standards in order to achieve a

“look,” ought to be troubling.

Diversity based on race is also meaningless given that

Americans are increasingly multiracial and no one student

can be fairly said to be representative of their race, or even

more demeaning, their race’s viewpoint in class. “Achieving

24

diversity by stereotyping students does not enhance

anyone’s educational experience — it diminishes it.” Ward

Connerly, Q: Does Diversity in Higher Education Justify

Racial Preferences?; A: No: Diversity of Viewpoint, Not

Racial Set-Asides Based on Stereotypes, Should Guide

Admissions, Insight on the News, May, 14, 2001, at 40.

“In the course of his famous argument in 1841 before

the Supreme Court in behalf of the Africans of the Amis-

tad, John Quincy Adam asked a question to which he

thought only a negative answer could be given: ‘Is it

possible that a President of the United States should be so

ignorant that the right of personal liberty is individual?”

Ho, 147 F.3d at 864 (citing John Quincy Adams, Argu-

ments in the case of United States v. Clinque 82 (Negro

Universities Press 1968) (1841)). The University’s assump-

tion treats blacks and Hispanics as interchangeable

representatives of their race instead of paying respect to

their rights and dignity as individuals with viewpoints

and opinions that may very well have nothing to do with

race or ethnicity. The Court should reject the faulty prem-

ise that Americans are little more than the sum of their

racial parts.

Extracting any coherence from the diversity rationale

is further complicated by the University’s lumping consid-

eration of race (black) with ethnicity (Hispanic) for no

apparent reason other than underrepresentation or

perceived inferiority/inadequacy. Why is it that blacks

should be treated the same as Hispanics (which as a group

itself has incredible diversity of race and national origin

and shares none of the nation’s history of slavery and Jim

Crow) were it not for a shared perceived inferiority? See

Ho, 147 F.3d at 863 (noting the irony of race-based prefer-

ences in favor of blacks at the expense of Chinese students

25

in San Francisco’s public schools given San Francisco's

(and California’s) particularly shameful history of dis-

crimination against Chinese immigrants).

Coherence is also made more difficult by even trying

to determine what the meaning of race is (and ultimately,

why it is important in University admissions). In Ho v.

San Francisco Unified School District, a case involving the

use of race and ethnic assignments in San Francisco public

schools, the following exchange took place between the

court and counsel at oral argument on appeal:

THE COURT: Will you tell me what race

means?

COUNSEL: I wish I knew.

THE COURT: All right. Thank you.

COUNSEL: I wish I knew what the plaintiffs

said it means.

THE COURT: Are you conceding that for the

purposes of your client that they do not know

what race means?

COUNSEL: Im saying I don’t know what race

means.

THE COURT: You're representing the school

district.

COUNSEL: Yes.

THE COURT: Does the school district know

what race means?

COUNSEL: I don’t believe they do. I don’t be-

lieve that they know more than I do.

26

THE COURT: Well, can you say what their po-

sition is on race? Are you conceding they don’t

know what race is?

COUNSEL: I have not attempted to establish

for the entire school district what the various

viewpoints of the people involved in the schoo]

district. ...

THE COURT: This is the main issue. Will the

school district give up its racial forms so that no

one has to identify themselves? Will they give it

up?

COUNSEL: If Judge Orrick demands that we

do so.

THE COURT: No, I'm asking you now.

COUNSEL: _..... But the law does not require

that.

THE COURT: On this appeal, will you say that

you will no longer...

COUNSEL: Absolutely not.

THE COURT: All right. Thank you. But you

don’t know what it is?

COUNSEL: But because I don’t know what it

is, I don’t know what I'm giving up if I say to you,

“Yes, I will give it up.”

Ho, 147 F.3d at 861. The truth is, nobody really knows

what race means, much less why it is a (supposedly) vital

factor in University admissions but for the sake of diver-

sity which is code for racial and ethnic balancing resulting

from notions of racial and ethnic inferiority.

27

Further, “diversity” does not even appear to be the

real substantive policy advanced by the University’s

preferences in that it can not be separately identified from

correcting underrepresentation — or put differently, simple

racial balancing. The diversity rationale, which is founded

upon underrepresentation, could very well be used to

justify minority representation until the classroom “mir-

rors the percentage of minorities in the population as a

whole.” Croson, 488 U.S. at 498. Indeed, because the

existence of the University’s preference is based on under-

representation, is there any confidence that the program

would not continue for at least as long as underrepresenta-

tion continued? It appears that diversity has “been coined

... a8 a permanent justification for policies seeking racial

proportionality in all walks of life.” Lutheran Church-

Missouri Synod v. Federal Communications Comm'n, 141

F.3d 344, 356 (D.C. Cir. 1998).

V CONCLUSION

“The Court should move us in a direction which much

of the country craves in which skin color is no longer

relevant than one’s religion or eye color in the transactions

between government and its citizens.” Connerly State-

ment.

At stake here is the full realization of the Equal

Protection Clause which is the destination of a long

journey by all Americans to leave behind their ancestors’

racial baggage so that all can join America and enjoy the

blessings of liberty without regard to race.

28

DATED: January 16, 2003

Respectfully submitted,

MANUEL S. KLAUSNER

PATRICK J. MANSHARDT

Attorneys for Amicus Curiae

Ward Connerly