Amicus Curiae Brief — Grutter v. Bollinger

(a!) (8)

Nos. 02-241 and 02-516

Supreme Court, U.S.

FILED

Supreme Court of the Unitdwstatesic ren

BARBARA GRUTTER,

Petitioner,

V.

LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and the

BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN,

Respondents,

JENNIFER GRATZ and PATRICK HAMACHER,

Petitioners,

Vv.

LEE BOLLINGER, JAMES J. DUDERSTADT, and the BOARD OF

REGENTS OF THE UNIVERSITY OF MICHIGAN,

Respondents,

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE ASIAN AMERICAN LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

ANTHONY K. LEE DANIEL C. GIRARD

580 California Street, 16th Floor GORDON M. FAUTH, JR.

San Francisco, California 94104 Counsel of Record

(415) 439-4862 GIRARD GIBBS &

DE BARTOLOMEO LLP

601 California Street, Suite 1400

San Francisco, California 94108

(415) 981-4800

Counsel for Amicus Curiae The Asian American Legal Foundation

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

51

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..............cccccececocecesescsessseees iii

STATEMENT OF INTEREST ................ccccceceseccececsesess l

SUMMARY OF ARGUMENT .............cccccccesesceceseseeeee, 3

POET siribicieridiiadieaivimasitiiniienasaielatiia tial ass 8

I. USE OF RACE 1S “ODIOUS” AND

SHOULD BE RESERVED FOR SITUA-

TIONS WHERE IT WILL VINDICATE

RATHER THAN TRAMMEL THE RIGHTS

OUI pciinitithtnicninteriatinteiirssimpmriaiys 8

A. A Decision Elevating Diversity To A

Compelling State Interest Would Likely

Result In Renewed Discrimination Against

San Francisco’s Chinese American School-

TN seciteciiacetineaiiinininii Diced iia iia 8

B. The Experiences Of The Named Plaintiffs

And Class In Ho Demonstrate That Man-

dated Diversity Harms Individuals, Even

Members Of Groups That Have Histor-

ically Suffered Discrimination..................... 11

C. Settlement Was Reached In Ho Only

Because The Law Was Clear That The

Goal Of Diversity Would Not Justify The

School District’s Use Of Race ..................0.. 14

D. The Historical Treatment Of Chinese

Americans Amply Illustrates The Wrong

bers Of Racial Group6...............:.csesssseseseseee 15

(i)

ii

TABLE OF CONTENTS—Continued

E. Placing Priority On Group Identity

Inevitably Results In The Trammeling Of

Individual Rights..............ssssseeereeneeneennes

F. A Pedagogical Desire For Diversity Can-

not Rise Above The Constitution’s Guar-

antee Of Equal Protection To Individuals...

G. The Result In Bakke Does Not Support

The Non-Remedial Use of Race ..............00+

Il. AS THERE IS NO OBJECTIVE STANDARD

BY WHICH RACIAL DIVERSITY MAY BE

MEASURED OR LIMITED IN SCOPE OR

TIME, THE UNIVERSITY’S ADMISSIONS

PROGRAMS CANNOT BE NARROWLY

TAILORED TO ADVANCE A COM-

PELLING STATE INTEREST.............0000seesesee0s

A. The University’s Lack Of An Objective

Standard For “Racial Diversity” Renders

Its Use Of Race Capricious..............eeeesees

B. Lacking Any Attainable Goals Or Tem-

poral Limits, The University’s Admissions

Programs Would Classify Students By

C. The University Failed To Consider And

Use Race-Neutral Means To Achieve

Diversity, Preferring The Impermissible

18

21

23

25

25

27

28

iii

TABLE OF AUTHORITIES

CASES Page

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

EE 6, 7, 20, 21, 24, 26, 27

Brown v. Bd. of Educ., 347 U.S. 483 (1954).......... 17, 20

Gong Lum v. Rice, 275 U.S. 78 (1927) ...ccccccccccceees 16

Gratz v. Bollinger, 122 F. Supp. 2d 811, 820, 825

SS EE Sree ene 22, 25

Grutter v. Bollinger, 288 F.3d 732, 749-52

ee 7, 17, 22, 25-27

Ho Ah Kow v. Nunan, 12 F. Cas. 252 (C.C.D.

EE 15

Ho v. San Francisco Unified Sch. Dist., San

Francisco NAACP v. San Francisco Unified

Sch. Dist., 59 F. Supp. 2d 1021 (N.D. Cal.

Sean liibicncenenesreitniienrateiiinptianssnaauiaiaetineaes 1, 4, 9, 13-16

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

854, 864 (N.D. Cal. 1998)... 1, 3, 4, 9-13, 16

Ho v. San Francisco Unified Sch. Dist., 965 F.

SE 9, 10

In re Ah Chong, 2 F. 733 (C.C.D. Cal. 1880)........ 15

In re Lee Sing, 43 F. 359 (C.C.D. Cal. 1890)........ 16

In re Tiburcio Parrott, 1 F. 481 (C.C.D. Cal.

EL a 15

Lee v. Johnson, 404 U.S. 1215 (1971) coccccccccccccccees 17

Metro Broadcasting, Inc. v. FCC, 497 U.S. 547

EE 2,21, 24

New York City Transit Auth. v. Beazer, 440 U.S.

8 TE ae 23

Northeastern Fla. Ch. of Assoc. Gen. Contrac-

tors of America v. City of Jacksonville, 508

8 eee 23

Plessy v. Ferguson, 163 U.S. 537 (1896) ...........-. 16

iv

TABLE OF AUTHORITIES—Continued

Regents of the Univ. of Cal. v. Bakke, 438 U.S.

a 22, 23

Richmond v. Croson, 488 U.S. 469, 493

I ———_——__—_—_———_——————————— 6, 8, 20, 24-27

San Francisco NAACP v. San Franeisco Unified

Sch. Dist., “? F. Supp. 34 (N.D. Cal. 1983)..... 9, 10

Shaw v. Reno, 509 U.S. 630, 643 (1993) ..........-+. 8, 26, 28

Shelley v. Kraemer, 334 U.S. 1, 22 (1948).......... 6, 21, 22

Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885).......... 4, 16

Unified States v. Wong Kim Ark, 169 U.S. 649

| 16

Wygant v. Jackson Bd. of Educ., 476 U.S. 267,

ee 24, 26

Vick Wo v. Hopkins, 118 U.S. 356 (1886) ...cscc-.. 15,17

OTHER AUTHORITIES

James E. Bowman, Anthropology: From Bones

to the Human Genome, 568 Annals Am. Acad.

Pol. & Soc. Sci., 140, 141 (March 2000 ............ 25

Lee Cheng, Group Preferences and the Law,

U.S. House of Representatives Sub-Committee

on the Constitution Hearings (June 1, 1995), at

http://www. house. gov/judiciary/274.him. .......... 11

Pat K. Chew, Asian Americans: The “Reticent”

Minority And Their Paradoxes, 36 Wm. &

Mary L. Rev. 1, 28-31 (Oct. 1994) ...........csesees 19, 20

Alan M. Dershowitz and Laura Hanft,

Affirmative Action and the Harvard College

Diversity-Discretion Model: Paradigm or

Pretext, 1 Cardozo L. Rev. 379, 385-399

v

TABLE OF AUTHORITIES—Continued

Selana Dong, “Too Many Asians”: Challenge of

Fighting Discrimination Against Asian-

Americans and Preserving Affirmative Action,

47 Stan. L. Rev. 1027, 1057 n.36 (May 1995)... 19, 23

Michael Dorgan, Desegregation or Racial Bias?,

San Jose Mercury, June 5, 1995, at 1A.............. 12

Nathan Glazer, Diversity Dilemma, The New

Republic, June 22, 1998, at http://www.tnr.

com/archive/0698/062298/glazer062298.htm! ... 18

Julian Guthrie, S.F. School Race-Bias Case Trial

Starts Soon, San Francisco Examiner, Feb. 14,

Jerry Kang, Negative Action Against Asian

Americans: The Internal Instability Of

Dworkin’s Defense Of Affirmative Action,

31 Harv. C.R.-C.L. L. Rev. 1, 36 (Winter

Joyce Kuo, Excluded, Segregated and Forgotten:

A Historical View of the Discrimination of

Chinese Americans in Public Schools, 5 Asian

L.J. 181, 207-208 (May 1998) .000.......cccccccceceeee 4

David I. Levine, The Chinese American

Challenge to Court-Mandated Quotas in San

Francisco's Public Schools: Notes from a

(Partisan) Participant-Observer, 16 Harv.

Blackletter L.J. 39, 54 (Spring 2000)................. 4

Victor Low, The Unimpressible Race (East/West

Ee 4

Charles McClain, Jn Search of Equality (Univ. of

8 ES 4

Leo Rennert, President Embraces Minority

Programs, Sacramento Bee (Metro Final),

NF a er 19

vi

TABLE OF AUTHORITIES—Continued

Elmer Clarence Sandmeyer, The Anti-Chinese

Movement in California (Univ. of Ill. Press

|, |

Evan P. Schultz, Group Rights, American Jews,

and the Failure of Group Libel Laws,

66 Brook. L. Rev. 71, 111-12 (Spring 2000).....

Lawrence Siskind, Racial Quotas Didn't Work in

SF Schools, op-ed, San Francisco Examiner,

Reflections on The Shape of the River, 46

UCLA L. Rev. 1583, 1608 (June 1999).............

IN THE

Supreme Court of the United States

Nos. 02-241 and 02-516

BARBARA GRUTTER,

Petitioner,

Vv.

LEE BOLLINGER, JEFFREY LEHMAN, DENNIS SHIELDS, and the

BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN,

Respondents,

JENNIFER GRATZ and PATRICK HAMACHER,

Petitioners,

Vv.

Lee BOLLINGER, JAMES J. DUDERSTADT, and the BOARD OF

REGENTS OF THE UNIVERSITY OF MICHIGAN,

Respondents,

On Writs of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF THE ASIAN AMERICAN LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

STATEMENT OF INTEREST

The Asian American Legal Foundation (“AALF”), based in

San Francisco, California, was founded to protect and

promote the civil rights of Asian Americans.' Americans of

' Letters of consent by all parties to the filing of this brief have been filed

with the Clerk. No counsel for a party authored this brief in whole or in

part, and no person or entity, other than Amicus Curiae, its members, or

its counsel, made a monetary contribution to the — or

submission of the brief.

2

Asian origin have a particular interest in the law governing

the use by public officials of race and ethnicity in admissions

to state-supported academic institutions. Despite the fact that

Asian Americans are considered culturally “different” from

other Americans and have historically experienced—and

continue to experience—overt racial and ethnic prejudice,

diversity-based admission schemes are almost always used to

exclude Asian Americans from educational institutions.

Diversity has been invoked as a justification for infringing

upon the constitutional rights of San Francisco’s Chinese

American children. In Ho v. San Francisco Unified School

District, 147 F.3d 854, 864 (N.D. Cal. 1998), schoolchildren

of Chinese descent sued to end a consent decree that

mandated racial and ethnic admissions quotas to achieve

diversity. In Ho, after five years of litigation, and after the

court found that the defendants had almost no chance of

demonstrating a remedial purpose for their race-conscious

admissions scheme, rather than face trial, the San Francisco

Unified School District and the San Francisco NAACP

abandoned the defense of the racial classification scheme and

agreed to modify the consent decree that required the

assignment of students to schools based on race. See Ho v.

San Francisco Unified Sch. Dist., San Francisco NAACP v.

San Francisco Unified Sch. Dist., 59 F. Supp. 2d 1021 (N.D.

Cal. 1999). AALF members supported the Ho litigation from

the outset.

AALF is deeply concerned about the issues presently

before this Court in Gratz v. Bollinger, No. 02-516, and

Grutter v. Bollinger, No. 02-241. By granting preferences to

applicants from certain ethnic groups, the admissions pro-

grams of the University of Michigan college and law school

(together, the “University”) place racial barriers before

are unjustified by any remedial purpose. With the University

unable to articulate any such remedial purpose, its ability to

use race in admissions stands or falls on whether creation of

3

an ethnically diverse student body is a compelling govern-

ment interest. A decision by this Court that diversity is a

compelling government interest will have implications far

beyond this case, however. Among other things, such a

decision would strongly encourage the San Francisco Unified

School District to return to a system of race-based assign-

ments, which the plaintiffs in Ho fought so long to end.

If this Court rules that race-conscious treatment can be

justified by the goal of diversity, the San Francisco school

district will likely reimpose its racial quotas. Moreover, upon

graduation from high school, members of the Ho plaintiff

class will face a proliferation of similar barriers as they apply

to college and, later, graduate and professional schools. Not

that any person should be disfavored because of his or her

race, but it would be ironic indeed were Chinese Americans

to find themselves classified as a “non-preferred” ethnicity in

the 21st century, when a dominant theme of their history in

this country has been one of de jure discrimination.

Amicus curiae AALF submits that the examples of both

this history and the Ho case caution against allowing equal-

protection rights to be eroded in the name of social agendas

that, no matter how well-intentioned, would subordinate the

rights of the individual to the purported good of some greater

whole. Accordingly, AALF and its constituents respectfully

ask this Court to hear their arguments in favor of Petitioners.

SUMMARY OF ARGUMENT

In furtherance of the goal of a diverse student body, the

University of Michigan has enacted race-based admissions

programs at its college and law school which, unchecked by

any remedial purpose, will continue in perpetuity. This use of

race violates the Fourteenth Amendment right of University

applicants to the equal protection of the laws. If the Court

upholds the University’s consideration of race in admissions,

the decision will reawaken race-based treatment of individ-

uals in settings far b~yond the halls of higher education.

4

In San Francisco, for instance, such a ruling would threaten

that, after a century-and-a-half-long struggle to be treated as

individuals, children of Chinese descent might again be

singled out for unequal treatment by the city’s school system.

In particular, any holding that elevated racial diversity to a

compelling state interest would endanger the remedy recently

secured in Ho v. San Francisco Unified School District. \n

that case, the school district sought to prevent “racial iso-

lation” through a consent decree which classified all children

in the district into nine arbitrarily-defined ethnic groups, and

required that members of four ethnic groups be present at

each of the city’s schools. Ho, 147 F.3d 854, 856 (9th Cir.

1998). Furthermore, no one group could constitute more than

45 percent of the student body at any “regular” school or

40 percent at any “alternative” school, with the result that

Chinese American children, who were the most numerous of

the defined groups, faced formidable obstacles in gaining

admission to schools of their choice. See id. at 856-59; David

1. Levine, The Chinese American Challenge to Court-

Mandated Quotas in San Francisco's Public Schools: Notes

from a (Partisan) Participant-Observer, 16 Harv. BlackLetter

J. 39, 54 (Spring 2000).

Tne Ho case demonstrates the modern-day dangers of

Kafkaesque social engineering in a multi-racial society.

It also came against the backdrop of a long history of de jure

discrimination against individuals of Chinese descent in San

Francisco. Viewed by many as faceless members of a

“yellow horde,” these individuals were often the victims of

state action aimed at protecting others from the supposed

numbers of their race. See, e.g., Charles McClain, Jn Search

of Equality (Univ. of Cal. Press 1994); Elmer Clarence Sand-

meyer, The Anti-Chinese Movement in California (Univ. of

Ill. Press 1991); Victor Low, The Unimpressible Race (East/

West Publishing Co. 1982). The onus extended to Chinese

American children who sought to attend the state’s schools.

See id.; Joyce Kuo, Excluded, Segregated and Forgotten: A

5

Historical View of the Discrimination of Chinese Americans

in Public Schools, 5 Asian L.J. 181, 207-208 (May 1998). In

one such example, in Tape v. Hurley, 66 Cal. 473, 6 P. 12

(1885), the court had to order San Francisco public schools to

admit a Chinese American girl. In response, the State of

California established separate “Chinese” schools, to which

Chinese American schoolchildren were restricted by law until

well into the twentieth century. See Ho, 147 F.3d at 864.

As discussed more fully below, in case after case, the rights

of people of Chinese descent were vindicated only by strict

application of the Fourteenth Amendment’s protection of

individual rather than group rights. In Ho, for example,

defendants agreed to cease assigning students by race only

after the court made clear that they were unlikely to succeed

In proving, under strict scrutiny, that their assignment scheme

furthered any remedial purpose. See Ho, 59 F. Supp. 2d at

1024, 1025. The right secured in Ho—essentially the right of

all Americans to be free of racial classification by the

government—will again be endangered if this Court issues a

ruling allowing state institutions to adopt race-based diversity

programs, freed from the constraints of any remedial purpose.

There is ample reason to look askance at any program that

classifies people by ethnicity to achieve some “ideal” racial

composition. There is no difference between a policy of

admitting some people because there are “not enough” of

their race and a policy of excluding others because there are

“too many” of theirs. This country’s most respected

universities have a shameful history of such policies, namely,

the admission ceilings first adopted for Jewish students in the

1920s, out of concerns over Jewish “over-representation” at

those schools. Indeed, the arguments the University now

makes about the salutary effects of its race-conscious admis-

sions policies here were eerily foreshadowed by Harvard

University’s claims about its Jewish quotas back then.

“Harvard initiated its diversity-discretion program to decrease

the number of Jewish students; President Lowell of Harvard

6

called it a ‘benign’ cap, which would help the University get

beyond race.” Jerry Kang, Negative Action Against Asian

Americans: The Internal Instability Of Dworkin’s Defense

Of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 36

(Winter 1996).

The San Francisco admissions policy challenged by the Ho

litigants similarly reduced “over-representation” in the city’s

schools by Chinese Americans. Strictly limited to 45 or 40

percent of any school’s student body (for regular and

alternative schools), Chinese Americans were, because of

their numbers, “capped out” at the most desirable schools.

See Levine, supra, at 55-56. A notorious manifestation of this

racial ceiling was at Lowell High School, considered the best

high school in the district and one of the best in California.

Lowell was the only school in the district that accepted and

rejected applicants on the basis of numerical qualifications,

i.e., grades and test scores. See id. Because admission on a

strictly by-the-numbers basis would have caused Lowell’s

student body to be more than 40 percent Chinese American,

the San Francisco school district required Chinese American

applicants to score higher than members of any other racial

group, including White, Korean and Japanese, to gain admis-

sion. See id.; Lawrence Siskind, Racial Quotas Didn't Work

in SF Schools, op-ed, San Francisco Examiner, July 6, 1994.

Thus, like Jewish applicants to American universities in the

past, Chinese American applicants to Lowell throughout the

1980s and 1990s were being penalized for their ethnicity and

success, until the Ho case finally brought these practices to

an end.

As the jurisprudence of this Court makes clear, state use of

race is always suspect and should be strictly reserved for

remedial settings. That limitation is mandated by the

personal nature of the right in question—a right that vests

solely in the individual. See Shelley v. Kraemer, 334 U.S. 1,

22 (1948); Adarand Constructors, Inc. v. Pena, 515 U.S. 200,

t «(Cs

227 (1995). Accordingly, the personal right not to be bur-

dened by racial classification should be abridged only in the

narrow circumstance where such action is unavoidable in

restoring to other individuals their usurped constitutional

rights. Otherwise, as this Court warned in Richmond v. Cro-

son, 488 U.S. 469, 493 (1989), the state’s interference threat-

ens to subvert the goals of the Fourteenth Amendment, pro-

moting feelings of “racial inferiority” and “racial hostility.”

Also demonstrating that diversity cannot rise to a com-

pelling government interest is the impossible task the Uni-

versity faced in narrowly tailoring its admissions programs to

its vague goal of diversity. As the Sixth Circuit noted in this

matter, to be narrowly tailored, a race-conscious remedial

program must be limited in scope and time, and must have

been adopted only after consideration of race-neutral

alternatives. Grutter v. Bollinger, 288 F.3d 732, 749-52

(6th Cir. 2002). At best, however, race is an unhappy proxy

for the personal attributes the University believes constitute

diversity. It is thus not strange that the University’s diversity

programs, enacted for pedagogical purposes, are capricious

with respect to those that are favored, and formless, in that

they will shift with every change in the pedagogical per-

ception of diversity and will continue without end.

The Sixth Circuit implicitly recognized the impossibility of

narrowly tailoring a diversity program. It accorded “defer-

ence” to the University with respect to “which groups to

target” for its race-determinative admissions plans /d. at 751.

It found that, unlike in a remedial setting, a diversity program

“does not have a self-contained stopping point.” /d. at 752.

But there is nothing in equal-protection jurisprudence to

support the notion that, under the strict-scrutiny test, a reme-

dial program enacted to restore constitutional rights should be

held to a higher standard than a diversity program that

deprives disfavored individuals of their constitutional rights.

Such logic would also fly in the face of the rule that, in exam-

8

ining use of race, there should be “consistency” and applica-

tion of the “same standard of justification.” Adarand, 51 5

U.S. at 224. The only reasonable conclusion is that the Uni-

versity’s admissions programs cannot survive strict scrutiny.

In short, the University’s goal of diversity, however well-

intentioned, should be pursued using means other than the

dangerous proxy of race. Here, the use of race Is not needed

to restore to any individuals their constitutional rights. Given

that lack of necessity, there is simply no justification for race-

conscious programs that abridge individual rights. As with

the Hippocratic oath taken by physicians, here the cardinal

rule should be, “First, do no harm.”

For these and other reasons set forth herein, the Uni-

versity’s race-conscious admissions programs should be

found unconstitutional.

ARGUMENT

I. USE OF RACE IS “ODIOUS” AND SHOULD BE

RESERVED FOR SITUATIONS WHERE IT

WILL VINDICATE RATHER THAN TRAM-

MEL THE RIGHTS OF INDIVIDUALS.

A. A Decision Elevating Diversity To A Com-

pelling State Interest Would Likely Result In

Renewed Discrimination Against San Fran-

cisco’s Chinese American Schoolchiidren.

This Court has repeatedly warned that “[c]lassifications of

citizens solely on the basis of race ‘are by their very nature

odious to a free people whose institutions are founded upon

the doctrine of equality.”” Shaw v. Reno, 509 U.S. 630, 643

(1993) (quoting Hirabayashi v. United States, 320 US. 81,

100). Use of race “threaten[s] to stigmatize individuals by

reason of their membership in a racial group and to incite

racial hostility.” Jd. at 643. Accordingly, the Fourteenth

Amendment provides that “[n]Jo State [actor] shall . . . deny to

9

any person within its jurisdiction the equal protection of the

laws.” See Croson, 488 U.S. at 493.

There can be no doubt that the University’s race-conscious

admissions programs burden individuals of the non-favored

races. The University argues that the diversity brought to the

halls of its college and law school is well worth the sacrifice

of those displaced by its use of race. Whatever the benefits of

this skin-deep diversity, however, it comes at a heavy price.

It would also be a mistake to assume that the issues at stake

here concern only the pedagogical needs and goals of higher

education. Any decision upholding diversity as a compelling

government interest justifying the use of race would have a

chilling effect on individual rights far beyond academia.

Even in education alone, the influence of such a decision

would be felt all the way down to the elementary-school and

kindergarten level.

In particular, in a relevant case which AALF respectfully

brings to the Couft’s attention, such a decision would likely

result in San Francisco’s schoolchildren of Chinese descent

again facing race-based discrimination in the city’s public

school system. In Ho v. San Francisco Unified School Dis-

trict, which began in 1994, San Francisco’s Chinese Ameri-

can schoolchildren were forced to turn to the courts for

redress of their Fourteenth Amendment rights, in order to halt

the school district’s policy of classifying and assigning them

to the city’s K-12 schools on the basis of their race. See Ho,

147 F.3d 854; Ho, 59 F. Supp. 2d 1021 (on remand); Ho vy.

San Francisco Unified Sch. Dist., 965 F. Supp. 1316 (1977)

(decision giving rise to appeal in 147 F.3d 854).

In Ho, the plaintiffs collaterally challenged a consent

decree entered in San Francisco NAACP vy. San Francisco

Unified School District, 576 F. Supp. 34 (N.D. Cal. 1983). In

that earlier case, a race-based assignment program was

enacted with the goal of preventing “racial isolation” in the

city’s schools. See Ho, 965 F. Supp. at 1322; see also Ho,

10

147 F.3d at 859. As explained when the consent order was

entered: “The key objective of the student desegregation plan

is to eliminate racial/ethnic segregation or identifiability in

any school, classroom, or program, and to achieve throughout

the system the broadest practicable distribution of students

from all the racial/ethnic groups comprising the general

student population.” San Francisco NAACP, 576 F. Supp. at

40. Under the admissions program, nine ethnic groups were

arbitrarily defined, including “Chinese”; members of at least

four of the groups were required to be present at each school;

and no one group could represent more than 45 percent of the

student body at any regular school or 40 percent at any

alternative school. See id.; see also Ho, 147 F.3d at 856.

While the San Francisco admissions program was purport-

edly remedial in nature, in fact, the promotion of diversity

was the only real purpose. In particular, there had never been

any findings of a constitutional violation to necessitate a race-

based remedy. See Ho, 965 F. Supp. at 1320. And sig-

nificantly, the “remedy” was secured on behalf of a class

defined as “all children of school age who are, or may in the

future become, eligible to attend the public schools of the

S.F.U.S.D.” /d. at 1322 (emphasis added); San Francisco

NAACP, 576 F. Supp. at 36. As described by the district

court, “This plan is designed to provide relief for all San

Francisco school children; it does not address the needs of

any particular racial or ethnic group.” 576 F. Supp. at 49.

Moreover, by the time of the Ho challenge, the school

district had enlarged the original nine racial categories to

thirteen, to take into account the emergence of additional

racial groups in the district. See Ho, 147 F.3d at 858.

Nevertheless, despite the numerous racial categories, no

provision was made for the growing number of children of

mixed race, or for those who preferred not to declare their

race. See id. at 862 (“They were not given the option

of refusal.”’).

B. The Experiences Of The Named Plaintiffs And

Class In Ho Demonstrate That Mandated

Diversity Harms Individuals, Even Members

Of Groups That Have Historically Suffered

Discrimination.

The heaviest burden of the school district’s diversity

assignment program fell on students identified as “Chinese.”

With d long history in San Francisco, over the years Chinese

Americans had come to constitute the largest identifiable

ethnic group in the city. See Levine, Supra, at 55-56. Ac-

cordingly, in the student assignment process, a child identi-

fied as Chinese was most likely to be “capped out” at many

desired schools and forced to attend a non-chosen school

often far from his or her neighborhood. See id. At Lowell

High School, an academic “alternative” high school that

admits students from middle school based on a score derived

from a combination of grades and standardized-test results

the mandated diversity was maintained by forcing Chinese

applicants to score higher than applicants of all other groups

including White, Japanese, and Korean, in order to gain

admission. See id.; Siskind, supra. Also, even where prefer-

ences were not required to maintain the racial caps, the

district nevertheless adopted a policy of granting preferences

to applicants classified as “Hispanic” and “Afri

r -

can.” See Ho, 147 F.3d at 858. nn

The parents of affected children and other concerned

Chinese Americans, including officials of the Chinese Ameri-

can Democratic Club, remonstrated with the school district

but the unlawful discrimination continued. See Levine ogre,

at 56-58. Parents’ frustration mounted as their children were

turned away from schools for no other reason than that

there were ‘too many Chinese.” /d. at 61. Children were

stigmatized. “He was depressed and angry that he was

rejected because of his race. Can you imagine, as a parent

seeing your son’s hopes denied in this way at the age of 142”

12

Julian Guthrie, S.F. School Race-Bias Case Trial Starts Soon,

San Francisco Examiner, Feb. 14, 1999, at C-2 (quoting

mother of student “capped out” at Lowell). As Lee Cheng,

Secretary of AALF, testified in a written statement for

hearings held by the U.S. House of Representatives, Sub-

Committee on the Constitution:

Many Chinese American children have internalized their

anger and pain, confused about why they are treated

differently from their non-Chinese friends. Often they

become ashamed of their ethnic heritage after con-

cluding that their unfair denial is a form of punishment

for doing something wrong.

Lee Cheng, Group Preferences and the Law, U.S. House of

Representatives Sub-Committee on the Constitution Hearings

(June 1, 1995), at http://www.house.gov/judiciary/274.htm.

Another byproduct of the mandated diversity plan was

“rampant dishonesty,” as parents of all races attempted to

misreport children’s racial identity to gain admission to

desired schools. See Michael Dorgan, Desegregation or

Racial Bias?, San Jose Mercury, June 5, 1995, at IA.

“{S}jome black families in Bayview-Hunter’s Point have gone

so far as to take Hispanic surnames to protect their children

from busing.” /d. at 1|0A. “People know if they want to go to

a particular school that has a lot of Caucasians, they should

put down something other than Caucasian, and they do.” /d.

at 10A (quoting School Board President Dan Kelly).

On July 11, 1994, the Ho class action was filed by three

Chinese American schoolchildren denied admission to city

schools because of their race, suing on behalf of themselves

and “all children of Chinese descent of school age who were

current residents of San Francisco and who were eligible to

7On the school enrollment forms, parents were threatened with

“perjury” if they misreported the race of their child. See Ho, 147 F.3d

at 862.

Pe ea

13

attend public schools of the school district.” Levine, supra, at

res The named plaintiffs’ situations amply illustrate the

iscrimination meted out to Chinese Ameri i

by the school district: oe

Brian Ho was five years old at the time it started

In 1994, he was turned away from his he csltboseed

schools when he applied to kindergarten because the

schools were capped out for children of Chinese descent

= was assigned to a school in another neighborhood. .

atrick Wong, then fourteen Oo i -

mission to Lowell High School + ae

rejected because his index score was below the

minimum required for Chinese American applicants.

tried to apply to a fourth high school, a

. a , newl

established academic high school, his mother was told

that all spaces for Chinese Americans were filled even

though spaces for applicants of other racial or ethnic

groups were still available.

The family of Hillary Chen, then eight ol

from north of Golden Gate Park to a el eden oo

of the park in December 1993. Hilary was not allowed

to — om any of three elementary schools near her

new home use Chinese Ameri

at all three schools. a

Id. at 61.

C. Settiement Was Reached In Ho Only Because

The Law Was Clear That The Goal Of

Diversity Would Not Justify The School Dis-

trict’s Use Of Race.

After some five years of vigorous litigati

on, the Ho case

settled on the first day of trial, with defendants agreeing

14

to cease using race to assign students to the city’s schools,

and agreeing to end the mandatory requirement of self-

identification by race on student enrollment forms. See Ho,

59 F. Supp 2d 1021 (approving settlement).

Beyond question, settlement in Ho would never have been

reached if the district court and the Ninth Circuit (on an

interlocutory appeal from the district court’s denial of plain-

tiffs’ request for dissolution of the consent decree) had not

emphasized to defendants that, under this Court’s decisions in

cases such as Croson and Adarand, the goal of diversity

provided no justification for use of race, and that at trial the

school district would have to prove a past constitutional

violation tied to its present use of race—a burden defendants

were extremely unlikely to carry. See Ho, 147 F.3d at 864-65

(“[T]he temporary expedient of using race is to compensate

individual persons themselves injured by the malevolent use

of race.”); Ho, 59 F. Supp. 2d at 1024-25 (noting burdens

placed by Ninth Circuit’s ruling and district court’s prior

finding that “defendants had shown little likelihood of

prevailing at trial”).

* Even after settlement was reached, the school district tried to obtain

the district court's approval of a new admissions plan that, like the

University's admissions programs at issue here, would have used race as a

non-exclusive “diversity” factor. Under the proposed plan, instead of im-

posing the hard-and-fast quotas and caps ended by the settlement, the

school district would have granted preference in student assignment based

on a “diversity index” composed of four factors, one of which was

race/ethnicity:

(1) Low socio-economic status;

(2) Limited proficiency in English;

(3) Limited math and reading achievement levels; and

(4) Racial/ethnic diversity.

Levine, supra, at 110-11. The district court struck down the proposed

assignment plan for failing to meet the constitutional test of strict scrutiny

15

Thus, key to the Ho plaintiffs’ vindication of their consti-

tutional rights was the recognition by the district court, and

ultimately the school district, that the goal of diversity could

not be used to justify the district’s use of race. Therefore, if

this Court, in deciding Gratz and Grutter, elevates diversity

to a compelling government interest, the San Francisco

Unified School District will most likely again try to imple-

ment a race-based student assignment program, depriving the

city’s Chinese American schoolchildren of the relief secured

in Ho. It is also likely that other school districts around the

country would similarly subject millions of other school-

children to race-conscious assignment policies.

D. The Historical Treatment Of Chinese Ameri-

cans Amply Illustrates The Wrong Of Treating

Individuals As Faceless Members Of Racial

Groups.

The experience of Chinese Americans, as exemplified in

Ho and other cases, illustrates why group identity should

never be elevated above individual rights. The struggle by

Chinese American schoolchildren in Ho against race-based

treatment was particularly ironic in that, for much of the

preceding century and a half, Americans of Chinese descent

had struggled against racial discrimination, often in San

Francisco. Throughout their history in this country, indi-

viduals of Chinese descent have sought to participate in and

contribute to American society but have often faced signifi-

cant barriers because of their race. See, e.g., McClain, supra;

Sandmeyer, supra; Low, supra. Their experiences included

some so dire as to give rise to the expression “a Chinaman’s

Chance,” a term meaning “having little or no chance of

succeeding.” News Watch Diversity Style Guide, at http://

and for violating the terms of the settlement agreement. See id. at 113-14.

Again, without “diversity” as a compelling state interest, defendants could

not meet the constitutional test.

16

newswatch.sfsu.edu/guide. Time and again, Chinese Ameri-

cans have received equal treatment only after appealing to the

federal judiciary for the protections afforded individuals by

the United States Constitution.

For example, in Ho Ah Kow v. Nunan, 12 F. Cas. 252

(C.C.D. Cal. 1879) (No. 6,546), a district court invalidated

San Francisco’s infamous “Queue Ordinance” on equal-

protection grounds. In /n re Ah Chong, 2 F. 733 (C.C.D. Cal.

1880), the court found unconstitutional an act forbidding

Chinese Americans from fishing in California waters. In /n

re Tiburcio Parrott, | F. 481 (C.C.D. Cal. 1880), the court

declared unconstitutional a provision of California’s 1879

constitution that forbade corporations and municipalities from

hiring Chinese. In Yick Wo v. Hopkins, 118 U.S. 356 (1886),

this Court ruled that Chinese were “persons” under the

Fourteenth Amendment and could not be singled out for

unequal burden under a San Francisco laundry licensing

ordinance. In Jn re Lee Sing, 43 F. 359 (C.C.D. Cal. 1890),

the court found unconsti-utional the “Bingham Ordinance,”

which mandated residential segregation of Chinese Ameri-

cans. In United States v. Wong Kim Ark, 169 U.S. 649

(1898), this Court ruled that a Chinese American boy, born in

San Francisco, could not be prevented by San Francisco

officials from returning to the city after a trip abroad.

Chinese American schoolchildren were long denied access

to the public schools. In Tape v. Hurley, 66 Cal. 473, 6 P. 12

(1885), the court had to order San Francisco public schools to

admit a Chinese American girl who was denied entry

because, as stated by the State Superintendent of Public

Instruction, public schools were not open to “Mongolian

children.” See McClain, supra, at 137. In response, the

California legislature authorized separate “Chinese” schools,

to which Chinese American schoolchildren were restricted by

law until well into the twentieth century. See Ho, 147 F.3d at

17

864; see also Kuo, supra, at 207-08 (noting that “Chinese”

were segregated even when “Japanese” were not).

Even though it is not widely recognized, the experiences of

Chinese American schoolchildren had much to do with the

shaping of “separate but equal” jurisprudence as it related to

education. In Wong Him y. Callahan, 119 F. 381 (C.C.N._D.

Cal. 1902), the district court denied a child of Chinese

descent the right to attend his neighborhood school in San

Francisco, reasoning that the “Chinese” school in Chinatown

was “separate but equal.” 119 F. at 382. In Gong Lum vy.

Rice, 275 U.S. 78 (1927), this Court affirmed that the

separate-but-equal doctrine articulated in Plessy v. Ferguson,

163 U.S. 537 (1896), applied to schools, finding that a nine-

year-old Chinese American girl residing in Mississippi could

be denied entry to a “white” school because she was a

member of the “yellow” race. /d. at 87.

Thus, in Lee v. Johnson, 404 U.S. 1215 (1971), Justice

Douglas wrote that California’s “establishment of separate

schools for children of Chinese ancestry . . . was the classic

case of de jure segregation involved {and struck down] in

Brown v. Board of Education, 347 U.S. 483 [1954]... .” dd.

at 1216. “Brown v. Board of Education was not written for

blacks alone. It rests on the Equal Protection Clause of the

Fourteenth Amendment, one of the first beneficiaries of

which were the Chinese people of San Francisco. See Yick

Wo v. Hopkins, 118 U.S. 356.” 404 U.S. at 1216.

In the context of the long history of Chinese Americans in

San Francisco, the Ho case presents distinct ironies. As

described above, the challenged race-based assignment plan

had as its stated goal the promotion of diversity and

elimination of racial identification, and yet San Francisco was

and is one of the most diverse cities in the nation, a fact

reflected in the composition of its schools. It boasts a true

multi-ethnic population with no single group in the majority,

and in many ways exemplifies the diversity toward which the

18

country strives. In spite of all this, the goal of diversity

became a tool of oppression wielded principally against

Chinese American schoolchildren—members of a community

that had suffered similar discrimination in the past. If nothing

else, Ho shows that once the state is allowed to use race for

non-remedial purposes, the rights of all individuals are in

danger.

E. Placing Priority On Group Identity Inevitably

Results In The Trammeling Of Individual

Rights.

Proponents of diversity as a compelling interest typically

focus on the perceived pedagogical value or other benefits

that diversity brings. See Grutter, 288 F.3d at 736-37.

Underlying this argument, however, is the mistaken assump-

tion that it is just to deprive an individual of benefits because

the “group” with which the individual is identified already

has “more than its fair share.” This kind of thinking invari-

ably is used to oppress individuals, diminishing them as

persons in proportion to the perceived numbers of their

“group.” Obviously, in most cases, the burden will fall

heaviest on the poorer or weaker members of the dis-

favored group.

In one noteworthy and cautionary example in higher

education, in the 1920s, Harvard College and other prominent

universities reacted to the perceived “over-representation” of

Jews in their student bodies by setting up informal quotas and

“diversity” programs that persisted through the 1950s. See

Evan P. Schultz, Group Rights, American Jews, and the

Failure of Group Libel Laws, 66 Brook. L. Rev. 71, 111-12

(Spring 2000); Alan M. Dershowitz and Laura Hanft,

Affirmative Action and the Harvard College Diversity-

Discretion Model: Paradigm or Pretext, | Cardozo L. Rev.

379, 385-399 (1979); Nathan Glazer, Diversity Dilemma, The

New Republic, June22, 1998, at http://www.tnr.com/

archive/0698/062298/glazer062298. html. These institutions

19

argued that their diversity schemes were beneficial to all and

would lessen ethnic tension. “Harvard initiated its diversity-

discretion program to decrease the number of Jewish stu-

dents, President Lowell of Harvard called it a ‘benign’

which would help the University get beyond race.” com

Supra, at 36. Yet the undeniable effect was to single out

individuals for unequal treatment merely because they were

identified with a particular religion or ethnicity. “In the

1930s, it was easier for a Jew to enter medical school in

Mussolini’s Italy than in Roosevelt’s America.” Siskind,

supra.

In Ho, a similar sentiment was voiced—that “Chinese”

already had “enough,” and that Chinese American individuals

who were turned away had no right to complain:

“[T}he Chinese are the largest group at most of the best

schools in the city. They can’t have it all. If anything,

I'd say lower the caps, don’t raise them—otherwise

we're headed back to segregated schools, only all

Chinese instead of all white.”

Selana Dong, “Too Many Asians”: Challenge of F ighting

Discrimination Against Asian-Americans and Preserving

Affirmative Action, 47 Stan. L. Rev. 1027, 1057 n.36 (May

1995) (citation omitted) (quoting Lulann McGriff, former

president of San Francisco NAACP); see also Levine supra

at 138 (observing that to some, “the Ho case is about how

much is ‘enough’ for one racial or ethnic group”).

Today, even outside of the Ho litigation, some similarly

consider Chinese Americans to be Over-represented in the

nation’s academic institutions. See Glazer, supra; Dong,

supra, at 1057, nn.4-5; Leo Rennert, President Bubrese

Minority Programs, Sacramento Bee (Metro Final), Apr. 7

1995, at Al (reporting that former President Clinton, in

speaking favorably about race-based admissions programs

commented that otherwise, “‘there are universities in Cali-

20

fornia that could fill their entire freshman classes with

nothing but Asian Americans”). “To keep a lid on the

number of Jewish students—denounced as ‘damned curve

raisers’ by less talented classmates—the universities imposed

quotas, sometimes overt, sometimes covert... . Today’s

‘damned curve raisers’ are Asian Americans, who are

winning academic prizes and qualifying for prestigious

universities in numbers out of proportion to their percent 2°

of the population.” Kang, supra, at 47 n.189 (quoting Don

Nakanishi, A Quota on Excellence, in The Asian American

Educational Experience: A Sourcebook for Teachers and

Students, at 275 (quoting Los Angeles Times reporter Linda

Matthews)) (internal quotation marks omitted). And again,

mandated “diversity” is seen as the answer. See Pat K. Chew,

Asian Americans: The “Reticent” Minority And Their Para-

doxes, 36 Wm. & Mary L. Rev. 1, 61-64 (Oct. 1994)

(universities use quotas to limit Asian American enrollment).

The goal of mandated diversity, espoused by the University

here, emphasizes the group over the individual. The Con-

stitution says nothing about “ideal” racial mixtures or

diversity, however. Nor should it, given that individuals have

an undeniable existence with interests that can be trammeled,

while race is a malleable concept at best, easily subject to

misuse. As history shows, discretion to consider ethnicity in

the pursuit of a diverse student body invariably leads to

oppression. See Dershowitz & Hanft, supra, at 399 (“Both

then and now ... such unlimited discretion makes it possible

to target a specific religious or racial group—then for

decrease, and now for increase . . . .”).

It is for such reasons that the Constitution has been wisely

construed to protect individuals against classification by race.

In Brown v. Board of Education, 347 U.S. 483, for example,

this Court recognized the inherent inequality in allowing

schools to segregate students on the basis of race. That same

reasoning should apply here.

21

F. A Pedagogical Desire For Diversity Cannot

Rise Above The Constitution’s Guarantee Of

Equal Protection To Individuals.

This Court’s jurisprudence teaches that the Fourteenth

Amendment's stricture on race-based treatment by the state is

absolute, except where such action is necessary to further the

compelling State interest of vindicating the rights of

individuals who were subject to racial discrimination. As this

Court warned in Croson, 488 U.S. 469, unless racial

classifications are “reserved for remedial settings, they may

in fact promote notions of racial inferiority and lead to the

politics of racial hostility.” /d. at 493. As explained by the

dissent in Metro Broadcasting, Inc. v. FCC, 497 U.S. 547

(1990), later vindicated by this Court in Adarand, 515 U.S.

200, “[m]odern equal protection doctrine has recognized only

one such interest: remedying the effects of racial discrim-

ination.” Metro Broadcasting, 497 U.S. at 612 (O’Connor

J., dissenting).

Thus, as this Court declared in Adarand, there are no

“benign” racial classifications. “{T]he Fifth and Fourteenth

Amendments to the Constitution protect persons, not groups.

It follows from that principle that all governmental action

based on race . . . should be subjected to detailed judicial

inquiry to ensure that the personal right to equal protection of

the laws has not been infringed.” 515 U.S. at 227 (emphasis

added). As this Court has repeatedly emphasized, the “rights

created by the first section of the Fourteenth Amendment are,

by its terms, guaranteed to the individual.” Shelley, 334 U.S.

at 22 (emphasis added).

While the Fourteenth Amendment protects individuals

from racial classification, there is no countervailing principle

that would subordinate individual rights to the University’s

perceived need for some ethnic mix constituting “diversity.”

The goal of diversity cannot substitute for a remedial purpose,

because diversity is “simply too amorphous, too insubstantial,

22

and too unrelated to any legitimate basis for employing racial

classifications.” Metro Broadcasting, 497 U.S. at 612

(O’Connor, J., dissenting). More important, in any equal-

protection analysis, the rights of the individual are paramount.

In both Ho and the instant cases, a state actor has essentially

argued that diversity programs are benign because they are

not motivated by animus and are applied impartially. In

Shelley, 334 U.S. 1, this Court rejected the notion that equal

protection is not violated when individual rights are tram-

meled as a result of the state’s impartial enforcement of a

scheme with discriminatory impact on an individual. In that

case, the Court considered whether states might enforce

covenants in residential deeds restricting occupancy to Cau-

casians. See 334 U.S. at 4-7. Rejecting the argument that,

because the state courts were equally willing to uphold

restrictive covenants against Caucasians, such action did not

violate individuals’ rights to equal protection, the Court

explained, “The rights established are personal rights... .

Equal protection of the laws is not achieved through

indiscriminate imposition of inequalities.” /d. at 22

(emphasis added).

Similarly, here, as in Shelley and Ho, the University may

not trammel the rights of individuals of one group merely

because it does so dispassionately and is equally willing to

trammel the rights of members of other groups. And here, as

in Shelley and Ho, because the Constitution protects indi-

viduals, the rights of affected individuals should be placed

above all other considerations, including the perceived good

of having present some ideal racial mix.

G. The Result In Bakke Does Not Support The

Non-Remedial Use Of Race.

In upholding the University’s race-conscious admissions

programs, the courts below reasoned that they were following

Justice Powell’s articulation in Regents of the University of

California v. Bakke, 438 U.S. 265 (1978), that in certain

23

hypothetical circumstances diversity could rise to a com-

pelling government interest. See Grutter, 288 F.3d at 739:

Gratz v. Bollinger, 122 F. Supp. 2d 811, 820, 825 (E.D. Mich.

2000). That statement, however, was essentially dictum

expressed only by Justice Powell. Also, Justice Powell failed

to consider that the Harvard Plan, upon which he expressly

based his dictum concerning a constitutional diversity-

discretion plan, was originally designed to keep J

Harvard College: . ahi

In Bakke, for example, Justice Powell lauded Harvard

University’s “soft” diversity-discretion model of affirm-

ative action as constitutionally preferable to a Strict,

hard quota system as adopted by the University of

California. He failed to mention, however, that Har-

vard’s program had anti-Semitic roots. Harvard initiated

its diversity-discretion program to decrease the number

of Jewish students . . . .

Kang, supra, at 36. More to the point, the Bakke opinion did

not uphold the admissions program in question; it found it

unconstitutional. See 438 U.S. at 272, 320. Thus, Justice

Powell’s speculation as to a program that might be found

constitutional can say little about the present case. See New

York City Transit Auth. v. Beazer, 440 U.S. 568, 582 n.22

( 1979) (noting this Court’s policy of “strict necessity” in

deciding constitutional issues, as well as its long-standing

refusal to issue advisory opinions).

Similarly, here, the University’s admissions programs do

not merit lenient treatment because of any purportedly

attenuated effect on non-favored applicants, or because race

is only one of the factors considered in admissions. As stated

by this Court, it is not the ultimate result of the racial

classification that constitutes the harm, but the imposition of

the classification itself: “The ‘injury in fact’ in an equal

protection case of this variety is the denial of equal treatment

resulting from the imposition of the barrier, not the ultimate

inability to obtain the benefit.” Northeastern Fla. Ch. of

24

Assoc. Gen. Contractors of America v. City of Jacksonville,

508 U.S. 656, 666 (1993).

Furthermore, for the applicants who are affected, the effect

is neither attenuated nor slight. That is, even if the Uni-

versity’s consideration of race diminished the odds of admis-

sion for non-favored applicants, such as Chinese American

applicants, by only | percent—the University concedes the

figure is much higher—it would still constitute a higher

barrier than that faced by members of favored races. Most

important, it is undeniable that many such applicants are

denied entry solely based on race. That is, notwithstanding

the University’s attempts to hide race among the other factors

considered, the rejected applicant would have been granted

entry if he or she had been a member of a favored race. For

such an applicant, the precise odds of entry and any

attenuated effect of race in the process are quite meaningless;

this person was rejected because of race.

Therefore, even if the University is right that its use of race

creates a diversity that promotes the general good, the “mere

recitation of a ‘benign’ or legitimate purpose for a racial

classification is entitled to little or no weight,” Cvoson,

488 U.S. at 500, and cannot rise to a compelling government

interest. “Social scientists may debate how peoples’ thoughts

and behavior reflect their background, but the Constitution

provides that the government may not allocate benefits or

burdens among individuals based on the assumption that race

or ethnicity determines how they act or think.” Metro Broad-

casting, 497 U.S. at 602 (O’Connor, J., dissenting).

25

il. AS THERE IS NO OBJECTIVE STANDARD BY

WHICH RACIAL DIVERSITY MAY BE

MEASURED OR LIMITED IN SCOPE OR

TIME, THE UNIVERSITY’S ADMISSIONS

PROGRAMS CANNOT BE NARROWLY

TAILORED TO ADVANCE A COMPELLING

STATE INTEREST.

A. The University’s Lack Of An Objective Stand-

ard For “Racial Diversity” Renders Its Use Of

Race Capricious.

As set forth above, the University’s goal of diversity

cannot constitute a compelling government interest to justify

classification of applicants by race. Even assuming it could,

however, the University’s use of race is too vague and

capricious to withstand strict scrutiny. As this Court has

stated, “racial classifications... are constitutional only if

they are narrowly tailored measures that further compel-

ing government interests.” Adarand, 515 U.S. at 227. “The

means chosen to accomplish the State’s asserted purpose

must be specifically and narrowly framed to accomplish that

purpose.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280

(1986) (opinion of Powell, J.).

Under the admissions programs at issue, preference is

granted to applicants from ethnic groups “which have been

historically discriminated against,” in particular, African

Americans, Hispanics, and Native Americans. Grutter, 288

F.3d at 737; see also Gratz v. Bollinger, 122 F. Supp. 2d

at 827. There has never been any showing, however, that

members of the favored groups will contribute more to

diversity than members of other ethnic groups that are also

under-represented. Here, “(t]he concept of ‘diversity’ is so

vague that it lends itself to a myriad of widely divergent and

ever-changing definitions capable of masking the criteria

actually at work.” Dershowitz & Hanft, supra, at 404. For

example, while the University’s programs target “African

26

American,” that itself is an imprecise term, including groups

that genetically and culturally are quite different from

each other:

“Black” subjects, for example, may include slave

descendants, whose ancestors were from West Africa,

but may also include recent immigrants from South

Asia, the horn of Africa, South Africa, certain Pacific

Islands, and even Australia. The genetic diversity

between some of these groups (as estimated from a

number of DNA homology studies) is a great as the

disparity between some groups of “blacks” and “whites.”

James E. Bowman, Anthropology: From Bones to the Human

Genome, 568 Annals Am. Acad. Pol. & Soc. Sci., 140, 141

(March 2000). The University’s capricious preferences

violate the principle that use of race must be justified by

particularized findings, to guard against the danger that it “is

merely the product of unthinking stereotypes or a form of

racial politics.” Croson, 488 U.S. at 510.

Similarly, in the case of the law school, the director of

admissions stated that the goal is to produce a “critical mass’

[of each group] with sufficient numbers to ensure under-

represented minority students do not feel isolated... :

Grutter, 288 F.3d at 737. Other witnesses “testified that

‘critical mass’ was not a set number or percentage.” /d.

Given that none of the favored applicants is entitled to a

remedial preference, and that a non-favored applicant is

denied admission for each preferential admission granted, a

program narrowly tailored to cause as little harm as possible

cannot leave this “critical mass” undefined.

B. Lacking Any Attainable Goals Or Temporal

Limits, The University’s Admissions Programs

Would Classify Students By Race Forever.

As in Ho, the University’s admissions programs fail strict

scrutiny because, lacking particularized and attainable goals,

they would continue to classify applicants by race forever.

27

Use of race is “odious” even where necessary, Reno, 509

at 643, and this Court has wisely cautioned against shahdinn

race-conscious programs that are “ageless in their reach into

the past, and timeless in their ability to affect the future.”

Croson, 488 U.S. at 498 (internal quotation marks omitted)

(quoting Wygant, 476 U.S. at 276); see also Adarand, 515

U.S. at 238 (program must be appropriately limited in time).

In Grutter, the Sixth Circuit acknowledged that, under the

vague guidelines of the University’s law school admission

program, the University’s use of race would continue

indefinitely. 288 F.3d at 751-52. The Sixth Circuit erred,

however, in finding that a temporal limit was not necessary

because “[uJnlike a remedial interest, an interest in academic

diversity does not have a self-contained stopping point.” /d

The Sixth Circuit's ruling ignores this Court’s admonishment

that there must be “consistency” and the “same standard of

justification” in reviewing programs for possible equal

protection violations. See Adarand, 515 U.S. at 224. It also

would produce the illogical result that a race-conscious pro-

gram designed to remedy actual de jure segregation, that is

one that seeks to restore to individuals their constitutional

rights, would be held to a stricter standard than a race-

conscious program designed merely to further peda-

gogical ends.

One also cannot assume, as did the Sixth Circuit, that in

any case, “the admissions policy is ‘sensitive to the possi-

bility that [it] . . . might someday have satisfied its purpose.””

Grutter, 288 F.3d at 752 (citation omitted). In Ho, where

there was a purported remedial purpose, diversity was none-

theless 4 goal that clearly was going to be pursued forever.

See Levine, supra, at 51, 56. Here, as the Sixth Circuit itself

recognized, there is no prior constitutional violation against

which to gauge the completeness of the present “remedy.”

The law school’s diversity program favors members of

ethnic groups deemed under-represented by granting them

28

preference in the admissions process. Grutter, 288 F.3d at

737. While the focus is on African American, Hispanic, and

Native American candidates, the University, freed from the

constraints of any remedial purpose, also looks to the

ethnicity of applicants who purportedly represent the

diversity of the world. See id. at 736 (highlighting Viet-

namese, Bangladesh, and Argentinian applicants).

In short, the University’s race conscious admissions pro-

grams are impermissibly tailored to the perpetual use of race.

C. The University Failed To Consider And Use

Race-Neutral Means To Achieve Diversity, Pre-

ferring The Impermissible Proxy Of Race.

The University’s admissions programs are also flawed

because it failed to consider and use the true, race-neutral

measures of the diversity it seeks, preferring instead the easy

but flawed proxy of race. In Croson, 488 U.S. 469, one of the

reasons this Court struck down a program which granted

race-based preferences in construction contracts was that the

city had failed to consider race-neutral alternatives. See id. at

507; see also Adarand, 515 U.S. at 237-38 (upholding same

requirement). Here, where the goal is not to restore indi-

vidual rights but simply to promote diversity for pedagogical

purposes, the University’s failure to find alternatives that do

not trammel individual rights is even more glaring.

The University is mistaken in assuming that color of skin is

an adequate proxy for the personal attributes it seeks,

particularly in our multi-ethnic society. This Court has ex-

plained that such thinking “bears an uncomfortable resem-

blance to political apartheid. It reinforces the perception that

members of the same racial group—regardless of their age,

education, economic status, or the community in which they

live—think alike, share the same political interests, and will

prefer the same candidates at the polls.” Shaw v. Reno, 509

U.S. at 647. “We have rejected such perceptions elsewhere

as impermissible racial stereotypes.” /d. Indeed, as various

29

scholars have found, race-conscious admissions programs do

foster unfortunate Stereotypes, detrimental even to members

of those ethnic groups “favored” by the program:

When few Jews could get into Ivy League school

Jewish Students had to be sented Sa

admission, a Jewish Stereotype was created: Jews are

smart. Admitting black students by lower standards has

precisely the opposite effect: it reinforces the pernicious

notion that blacks are not academically talented.

Stephan Thernstorm and Abigail Thernstrom, Reflections on

ts _ of the River, 46 UCLA L. Rev. 1583, 1608 (June

True diversity is a goal best pursued without recourse to

race. It is simplistic to assume that any given African

American candidate has suffered adversity and disadvantage,

thereby gaining valuable perspective or experience, while

assuming that the opposite is true for any given Chinese

American candidate. Even where such a generalization could

be made for a group as a whole, common sense tells us it

would never be true of all individuals in the group. See

Thernstrom, supra, at 1624-25 (focus on race ignores true

measures of diversity, producing “homogeneously upper-

middle-class” student bodies). Returning to the example of

the two random African American and Chinese American

candidates, a statement that the person has experienced

adversity might be true for both, either, or neither of the two.

All that can be known a priori is that both individuals deserve

to be considered on their own merits, undistorted by the prism

of a diversity scheme such as those advocated by the

University here.

30

CONCLUSION

In the 19th century, children of Chinese descent were

denied equal access to San Francisco public schools solely

because of their race. A hundred years later, in the Ho case,

Chinese Americans were again singled out for unequal

treatment. If nothing else, these experiences demonstrate the

danger of allowing the state to use race except in the most

limited circumstance, such as where such use is strictly nec-

essary in order to provide a remedy to individuals deprived of

constitutional rights. Pedagogical needs and goals, including

the desire for a diverse student body, simply cannot provide

such a compelling interest. Any program that allows state

actors to promote diversity through consideration of race will

inevitably result, as in Ho, and as in the instant cases, in

discrimination against individuals based on race. And, as

such use of race will be unbounded by any fixed, remedial

goal, it will continue without end, to the detriment of

our society.

For all of the reasons set forth herein, the University’s

race-conscious admissions programs further no compelling

governinent interest, are not narrowly tailored to further any

such interest, and should be found to violate Petitioners’ right

to the equal protection of the laws.

Respectfully submitted,

ANTHONY K. LEE DANIEL C. GIRARD

580 California Street, 16th Floor GORDON M. FAUTH, JR.

San Francisco, California 94104 = Counsel of Record

(415) 439-4862 GIRARD GIBBS &

De BARTOLOMEO LLP

601 California Street, Suite 1400

San Francisco, California 94108

(415) 981-4800

Counsel for Amicus Curiae The Asian American Legal Foundation