Amicus Curiae Brief — Gratz v. Bollinger

~

Nos. 02-241 & 02-516 /4

IN THE

Supreme Court of the nites STS —

BARBARA GRUTTER,

Petitioner,

V.

LEE BOLLINGER, et al.,

Respondents.

JENNIFER GRATZ, et al.,

Petitioners,

Vv.

LEE BOLLINGER, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

BRIEF OF AMICI CURIAE

NATIONAL ASIAN PACIFIC AMERICAN LEGAL

CONSORTIUM, ASIAN LAW CAUCUS,

ASIAN PACIFIC AMERICAN LEGAL CENTER, ET Ax.,

IN SUPPORT OF RESPONDENTS

KAREN K. NARASAK! MARK A. PACKMAN

VINCENT A. ENG Counsel of Record

TERRY M. AO JONATHAN M. COHEN

NATIONAL ASIAN PACIFIC ROBERT THORON TAYLOR

AMERICAN LEGAL JOEL E. GREER

CONSORTIUM GILBERT HEINTZ & RANDOLPH LLP

1140 Connecticut Ave., NW 1100 New York Ave., NW

Suite 1200 Suite 700

Washington, DC 20036 Washington, DC 20005

(202) 296-2300 (202) 772-2320

Counsel for Amici Curiae

[Additional Amici listed on inside cover]

Asian American Business Roundtable

Asian American Legal Center, Inc.

Asian American Legal Defense and Education Fund

Asian Law Alliance

Asian Pacific American Labor Alliance (AFL-CIO)

Asian Pacific Islander Legal Outreach

(formerly Nihonmachi Legal Outreach)

Association of Asian Indian Women in Ohio

Association of Asian Pacific Community Health Organizations

Chinese for Affirmative Action

Ka D.C. Asians for Peace and Justice

Filipino Civil Rights Advocates

Filipinos for Affirmative Action

Hmong National Development, Inc.

Japanese American Citizens League

Leadership Education for Asian Pacifics, Inc.

National Asian Pacific American Bar Association

National Asian Pacific American Women’s Forum

National Association for the Education and Advancement

of Cambodian, Laotian and Vietnamese Americans

National Coalition for Asian Pacific American

Community Development, Inc.

National Council of Asian American Business Associations

National Federation of Filipino American Associations

National Korean American Service & Education Consortium

Organization of Chinese Americans

South Asian Bar Association of Southern California

Southeast Asia Resource Action Center

TABLE OF CONTENTS

PUES coctccnccccccsenasacecescccsccccosecsece i

TABLE OF AUTHORITIES ...............ccccceseccsceecsseees iii

STATEMENT OF INTEREST OF AMICI CURIAE.......... l

SUMMARY OF ARGUMENT.................ccccceeeeseeeeeees 2

GEENTE <cccncncunccetheuntncccccctiinepestecescocccessccscoced 4

I. ASIAN PACIFIC AMERICANS ARE NOT

HARMED BY MICHIGAN’S RACE- —

CONSCIOUS ADMISSION PROCEDURES .........4

A. Asian Pacific American Students, Like All

Students, Benefit from a Diverse Student

B. Because Michigan’s Race-Conscious

Admission Procedures Are Flexible, and

Consider a Variety of Factors, These

Procedures Do Not Harm Asian Pacific

Cc. Empirical Evidence Refutes Petitioners’

Would Significantly Benefit from the

Elimination of Michigan’s Race-Conscious -

Admission Procedures....................06+ 14

‘

NOTWITHSTANDING THE CLAIMS OF

OPPONENTS OF AFFIRMATIVE ACTION

THAT ASIAN PACIFIC AMERICANS NO

LONGER SUFFER FROM DISCRIMINATION,

IN APPROPRIATE CIRCUMSTANCES

ASIAN PACIFIC AMERICANS SHOULD

BE INCLUDED IN AFFIRMATIVE ACTION

PLANS AS UNDER-REPRESENTED

~ RRR a Me SD 17

RN ibe scinnsiiccinienitintibeniinta cctiasdancateiih 24

TABLE OF AUTHORITIES

Federal Cases

Adarand Contractors, Inc. v. Pena,

ES 22

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

FES Ee 4,10, 12

Grutter v. Bollinger, 137 F. Supp. 2d 821

ET ie I 12

Grutter v. Bollinger, 288 F.3d 732

(6th Cir. 2002) (en banc)................. 3, 4, 6, 7, 9, 10, 12

Korematsu v. United States,

| TE a a 22

Marks v. United States, 430 U.S. 188 (1977) .................. 9

Planned Parenthood of Southeastern

_ Pennsylvania v. Casey, 505 U.S. 833 (1992)............... 9

Regents of the University of California v. Bakke, 438 U.S.

i IEE a 9

Federal Statutes and Rules

Pub. L. 100-383, § 2(a), 102 Stat. 903-904 ................... 22

Sapsaens Coust Bake SISA) ...0..cccccccccscccccccccccsvesceces l

Federal Regulations

Proposed Reforms to Affirmative Action in Federal

Procurement, Appendix - The Compelling Interest for

Affirmative Action in Federal Procurement:

aa 61 Fed. Reg. 26042, 26050-63

Books, R And Periodical

Asian Americans and Pacific Islanders Joint Task Force,

AAP] Federal Employment and Glass Ceiling Issues

GED cccicvecconvcsvsssibinenegeseseebintacadintidadenibereneen 20

"Asian Pacific American Agenda: Asian Americans on the

Issues,” Asian Week (August 23, 1996) ................... 16

Brest, Paul et al., Affirmative Action for Whom?,

SF GERD. Be, GRU. GE GO ccscccececctidinngecsisccoessces 19

Chang, Mitchell, “The Positive Educational Effects

of Racial Diversity on Campus, ” in Diversity

Challenged: Evidence on the Impact of

Affirmative Action (Gary Orfield and

Michael Kurlaender eds., 2001) ...............0ccceeeeeeees 7

Chen, Terri Yuh-lin, Hate Violence as Border Patrol:

An Asian American Theory of Hate

Violence, 7 Asian L.J. 69 (2000) ...............2..20000s 2, 23

Chew, Pat K., Asian Americans in the Legal Academy:

An Empirical and Narrative Profile, 3 Asian L.J. 7

GEE pocesecincsstniunsedatguationtintanséciiaapimapalinndih 20

Committee of 100, American Attitudes Toward Chinese

Americans and Asians (2001) ..............0ceceeseees 21, 22

Census 2000 Fact Sheet: Residential Segregation

in United States Metropolitan Areas

ee ae. A 14

“Eyes on Michigan: the California Case," Daily Bruin,

UR: Fete cthntiidentnccissitibasncetinctininrapeiamess 15

Equal Employment Opportunity Commission,

Job Patterns for Minorities and Women in Private

Industry (1998), available at http://www.eeoc.gov/

stats/jobpat/1998/tables-l.htm] ..................s.eeeeeees 19

Kang, Jerry, Racial Violence Against Asian Americans,

106 Harv. L. Rev. 1926 (1993) ..................20eee 22, 23

iv

Kidder, William C., Situating Asian Pacific Americans

in the Law School Affirmative Action Debate:

Empirical Facts About Thernstrom's Rhetorical Acts,

Fs Be idehdidccscctccveciccsstcpecccescocess 15

Kidder, William C., Affirmative Action in Higher Education:

Recent Developments in Litigation, Admissions and

Diversity Research, 12 Berkeley La Raza L.J.

Be ED cedvitscatiinciinnanediintbecadbatnbsosccentcecencrs 16

Korn/Ferry International, Executive Profile: A Decade of

Change in Corporate Leadership (1990) ...........+.+++ 20

Kurlaender, Michael & John T. Yun, "Is Diversity a

Compelling Educational Interest?

Evidence from Louisville,” in Diversity Challenged:

Evidence on the Impact of Affirmative Action

(Gary Orfield and Michael Kurlaender eds.,

TE sccuscestihinitistindnin letiscdiintiaiemstnsmbnsnepeeoosecoaoeee 7,8

LEAP Asian Pacific American Public Policy Inst. &

UCLA Asian American Studies Ctr., :

The State of Asian Pacific America (1993) ........... +++. 19

Lee, Cynthia Kwei Yung, Beyond Black and White:

Racializing Asian Americans in a Society Obsessed with

O.J., 6 Hastings Women's L.J. 165 (1995) ............... 22

Lien, Pei-te et al., A Summary Report of the Pilot

Study of the National Asian American

PE Ba GED aca scdsstbodecccecccccccccccscogccces 16

National Asian Pacific American Legal Consortium,

Audit of Violence Against Asian

Pacific Americans (2000) .........0.0ccccecccceceeecsereees 23

National Science Foundation, Women, Minorities,

and Persons with Disabilities in Science and

Engineering (1998), available at http://www.

nsf.gov/sbe/srs/nsf99338/pdfstart.html ................-++. 20

Orfield, Gary & Dean Whitla, “Diversity and Legal

Education: Student Experiences in Leading Law

Schools,” in-Diversity Challenged: Evidence on the

Impact of Affirmative Action, (Gary Orfield and

Michael Kurlaender eds., 2001) ................ccccceeeeeeee 7

Thernstrom, Stephan, Farewell to Preferences ?,

130 Pub. Interest 34 (1998) ............cccceeceeceeeeeeeeees 17

Thernstrom, Stephan and Abigail Thernstrom,

Reflections on the Shape of the River, 46 UCLA

Le FER. BED GH catindiocicevincccdepcnminigtiitinaiocccens 14

Tienda, Marta et al., Closing the Gap? Admissions and

Enrollments at the Texas Public Flagships Before and

After Affirmative Action (2003) .........0sceceeeeeees 13, 15

Turnbull, Spencer K., Wen Ho Lee and the

Consequences of Enduring Asian American

Stereotypes, 7 Asian Pac. Am. L.J. 72 (2001) ........... 22

University of Michigan Law School, Report and

Recommendations of the Admissions Committee

GRRTEED cocccancosastebisncuidangnctisseipienesctitel 8, 11-12, 14

Wang, Theodore Hsien, Swallowing Bitterness:

The Impact of the California Civil Rights Initiative on

Asian Pacific Americans, Ann. Survey Am. L. 463

CRDED Scocccssccctscinccssnbiaieccnccbttbcasibbbdassnstannigucs 21

White House Initiative on Asian Americans and Pacific

Islanders, A People Looking Forward, Action

for Access and Partnership in the 21st Century

GED ccansocicctandnccsgphennsidisltiiigisssateisbibcdedbees 20

Woo, Deborah, Glass Ceilings and Asian Americans:

The New Face of Workplace Barriers (2000) ...18, 19, 20

Wu, Diana Ting Liu, Asian Pacific Americans in the

ET CHP TD cones cackndsbbercdiqeccenivediacocoapes 18, 19

Wu, Frank, Yellow: Race in America Beyond Black

GRO TMOG co necnccintvabtideepunstindnstatiliia 17, 18, 23

Miscellaneous

“Q&A re University of Michigan Admissions Policies”,

available at http://www.umich.edu/~urel/admissions

FEED IIEE 200000 cccctveisdpruecescavesiintanceliia 8,11,14

“Description of University of Michigan Undergraduate

Admissions Policy,” available at http://www.umich.

edu/~urel/admissions/faqs/uapolicy.html ................. ll

Press Release, Asian Pacific Legal Center of Southern

California, Asian Pacific American Voters in

Southern California Vote Overwhelmingly

For President Clinton and Against

Prop. 209 (Nov. 6, 1996) .........ccccccececeeeerereeeeeees 16

Proof Brief of Defendants-Appellants, Grutter v. Bollinger,

No. 01-1447 (6th Cir. May-24, 2001) .............0e00 12-13

Chen, Edward M., “Speech Presented at the

California Law Review Dinner” (April 11, 2002).........20

STATEMENT OF INTEREST OF AMICI CURIAE'

The National Asian Pacific American Legal Consortium

(“NAPALC”) is a_ national, nonprofit, nonpartisan

organization whose mission is to advance the legal and civil

rights of Asian Pacific Americans. NAPALC is committed

to supporting affirmative action as a way of ensuring equal

opportunities for women and minorities. Joining NAPALC

as amici curiae in this brief are 27 public interest legal and

civil rights organizations listed in the Appendix to this brief

that also are dedicated to advancing the interests and

protecting the rights of Asian Pacific Americans

(collectively, “Avnici’). Amici include Japanese, Chinese,

Filipino, Korean, Hmong, South Asian, Pacific Islander,

Cambodian, Laotian, and Vietnamese American public-

interest groups. Amici also include some of the largest and

oldest Asian Pacific American organizations in this country

that are involved in challenging racial discrimination,

safeguarding civil rights, and advocating for affirmative

action programs. Amici thus have an important and

substantial interest in this case, which addresses the

constitutionality of the use by the University of Michigan

(“Michigan”) of race-conscious admission procedures to

offer students better educational opportunities by providing a

diverse academic community.

' In accordance with Supreme Court Rule 37.3(a), Amici Curiae have

filed with the Clerk of the Court letters from Petitioners and Respondents

consenting to the filing of this brief. No person or entity other than

Amici Curiae, their members, or their counsel made a monetary

contribution to the preparation or submission of the brief, and no counsel

for Petitioners or Respondents had any role in authoring this brief.

SUMMARY OF ARGUMENT

Asian Pacific Americans bring a unique perspective to

this case. Unlike African Americans, Hispanics, and Native

Americans, Asian Pacific Americans are not specifically

identified as under-represented minorities in Michigan’s

race-conscious admission procedures. Nonetheless, Amnici

and their Asian Pacific American constituencies support

Michigan’s race-conscious approach. Avnici do so in spite

of the contention of Petitioners and their supporters that

Michigan’s affirmative action programs victimize Asian

Pacific Americans. Amici submit this brief to rebut

Petitioners’ contention.

First, contrary to Petitioners’ contention, Asian Pacific

American students, like all students, benefit significantly

from Michigan’s race-conscious admission procedures.

Ample studies have shown that exposure to students from a

wide range of backgrounds enhances the educational

experiences of all students, whether Caucasian American or

minority. Thus, Asian Pacific American students, and all

other students, benefit from racial and ethnic diversity at

Michigan. Achieving such diversity constitutes a compelling

governmental interest.

Second, again contrary to Petitioners’ claim, Michigan’s

admission procedures are not rigid quotas, but rather are

flexible processes that allow consideration not simply of

whether an applicant is African American, Hispanic, or

Native American, but also of a variety of factors that reflect

a unique background or distinctive personal circumstances.

For example, the admission policy of the University of

Michigan Law School (“Law School”) expressly identifies a

broad array of factors that may warrant preferential

consideration on the basis of diversity, including ‘““an

Olympic gold medal, a Ph. D. in physics, the attainment of

2

age 50 in a class that otherwise lacked anyone over 30, or the

experience of having been a Vietnamese boat person.”

Grutter v. Bollinger, 288 F.3d 732, 747 (6th Cir. 2002) (en

banc) (quoting Law School Admissions Policy). This

flexibility allows Michigan’s affirmative action programs to

account for the circumstances facing Asian Pacific American

applicants and all other applicants. Consequently, Asian

Pacific Americans are not harmed by Michigan’s race-

conscious admission procedures. This flexibility also

demonstrates that Michigan’s race-conscious admission

procedures are narrowly tailored to achieve the compelling

governmental interest in maintaining racial diversity in

public education.

Third, empirical evidence refutes the suggestion of

Petitioners and their supporters that Asian Pacific Americans

would gain substantially from affirmative action’s demise.

For example, following the abolition of affirmative action

programs in California during the 1990s, Asian Pacific

American enrollment in state law schools did not increase

significantly, as one would have expected if Asian Pacific

Americans actually had been victimized by these programs.

Instead, it remained virtually unchanged.

Thus, despite the claims of Petitioners and their

supporters, Asian Pacific Americans are not harmed by

Michigan’s use of race-conscious admission procedures,

even though Asian Pacific Americans are not specifically

identified as under-represented minorities by those

procedures. Aynici emphasize, however, that at other schools

and in other contexts, such as employment and public

contracting, Asian Pacific Americans should be included in

the category of under-represented minorities in affirmative

action programs. The arguments of certain opponents of

affirmative action that Asian Pacific Americans do not need

such programs should be rejected because these arguments

3

rest on the myth that Asian Pacific Americans no longer

suffer from racial discrimination in American society and

that Asian Pacific Americans have been able to succeed

despite past racism and prejudice. This “model minority”

myth is empirically false. Moreover, it stems from

stereotyping and ignores current discrimination against

Asian Pacific Americans. Consequently, this myth provides

no support to those who contend that affirmative action is no

longer necessary to promote acceptance of and positive

interaction with Asian Pacific Americans (or other minority

groups).

For all of these reasons, Amici support Michigan’s

affirmative action programs. Accordingly, Amici

respectfully request that this Court affirm the judgment of

the Sixth Circuit in Grutter v. Bollinger and reverse the

District Court’s decision in Gratz v. Bollinger.

ARGUMENT

I. ASIAN PACIFIC AMERICANS ARE NOT

HARMED BY MICHIGAN’S RACE-

CONSCIOUS ADMISSION PROCEDURES

Petitioners and their supporters claim that Michigan’s

race-conscious admission procedures use unconstitutional

quotas for African Americans, Hispanics, and Native

Americans. Petitioners and their supporters further assert

that these procedures discriminate against other racial and

ethnic groups — including “especially Asian Americans.”

Brief for the Petitioner, Grutter v. Bollinger (“Pet. Brief

Grutter”), at 39 (“disadvantage on the basis of race works

not only against Caucasian Americans, but also against other

groups, including minority groups historically discriminated

against, especially Asian Americans”); see id. at 10 (“the

odds favoring students from African American, Mexican

4

American, Native American, and Puerto Rican groups are

always ‘enormously’ large relative to Caucasian Americans,

and other groups such as Asian Americans”) (citations

omitted); Brief of the Asian American Legal Foundation as

Amicus Curiae in Support of Petitioners (““AALF Brief”), at

2 (“diversity-based admission schemes are almost always

used to caciude Asian Americans from educational

institutions”); id. (“By granting preferences to applicants

from certain ethnic groups, the admissions programs of the

University of Michigan college and law school . . . place

racial barriers before Chinese Americans and other ‘non-

preferred’ individuals that are unjustified by any remedial

purpose.”); Brief for the United States as Amicus Curiae

Supporting Petitioner, Grutter v. Bollinger, at 35 (“As Judge

Boggs pointed out in his dissent, ‘[i]t is clear from the Law

School’s statistics that under-represented minority students

are nearly automatically admitted in zones where white or

Asian students with the same credentials are nearly

automatically rejected.””).’

This attempted portrayal of Asian Pacific Americans as

victims of Michigan’s race-conscious admission processes is

wrong for three reasons. First, Asian Pacific American

students (and, indeed, students of all racial and ethnic

groups) benefit from a diverse student body. Second,

Michigan’s program is sufficiently flexible to take into

? See also Brief for the United States as Amicus Curiae Supporting

Petitioner, Grutter v. Bollinger, at 31 (“By admitting racial minorities

that are given weight by respondents in attaining their critical mass,

respondents discriminate against other racial minorities that are deemed

not to contribute to the critical mass.”’); Brief for the Petitioners, Gratz v.

Bollinger (“Pet. Brief Gratz”), at 22-23 (“Like the formal quota in

Bakke, the dual standard employed by the University [of Michigan

College of Literature, Science and Arts] insulates members of the

preferred racial and ethnic groups from competition from members of the

disfavored racial groups.”’).

account the circumstances facing Asian Pacific American

applicants. Under Michigan’s flexible approach, Asian

Pacific Americans are not harmed. Third, Petitioners’

suggestion that Asian Pacific Americans would benefit

substantially from the overturning of Michigan’s affirmative

action programs is empirically incorrect. We discuss each of

these reasons in turn.

A. Asian Pacific American Students, Like All

Students, Benefit from a Diverse Student

Body

Although Asian Pacific Americans are not specifically

identified as members of an under-represented group in

Michigan’s affirmative action programs, Asian Pacific

American students, like all students, receive significant

benefits from the diversity that results from Michigan’s

programs. See Grutter, 288 F.3d at 760 (Clay, J.,

concurring) (discussing Michigan’s evidence regarding

benefits of diversity). Indeed, as discussed in Grutter,

Michigan’s expert Professor Patricia Gurin concluded,

“Students learn better in a _ diverse

educational environment, and they are

better prepared to become active

participants in our pluralistic, democratic

society once they leave such a setting. In

fact, patterns of racial segregation and

separation historically rooted in our

national life can be broken by diversity

experiences in higher education. . .

Racial diversity in a college or university

student body provides the very features

that research has determined are central to

producing the conscious mode of thought

6

educators demand from their students.

This is particularly true at the University of

Michigan, because most of the

University’s students come to Ann Arbor

from segregated »ackgrounds.”

Id. (quoting Professor Gurin’s report).

Professor Gurin’s conclusions are well supported by the

findings of other researchers. Law students surveyed at

Michigan and Harvard University report that racial and

ethnic diversity broadens their intellectual perspective both

in and outside the classroom and improves their ability to

work and socialize with people of other races and ethnicities.

See Gary Orfield and Dean Whitla, “Diversity and Legal

Education: Student Experiences in Leading Law Schools,” in

Diversity Challenged: Evidence on the Impact of Affirmative

Action (“Diversity Challenged”) (Orfield and Kurlaender,

eds., 2001) (copy of relevant pages lodged with Clerk of the

Court). Similarly, racial diversity on university campuses

has been shown to enhance students’ educational experiences

and to increase the likelihood that students will socialize

across racial lines and discuss racial matters. See Mitchell

Chang, “The Positive Educational Effects of Racial Diversity

on Campus,” in Diversity Challenged (copy of relevant

pages lodged with Clerk of the Court). This in turn has a

positive impact on student retention, overall college

satisfaction, and intellectual and social self-confidence

among students. See id.

In addition, racial diversity at all levels of education has

been shown to have positive educational effects. For

example, high school students receive substantial benefits,

including greater willingness to live and work in diverse

environments as well as improved critical thinking skills.

See, e.g., Michal Kurlaender and John T. Yun, “Is Diversity

7

a Compelling Educational Interest? Evidence from

Louisville,” in Diversity Challenged (copy of relevant pages

lodged with Clerk of the Court). Racial diversity also helps

high school students to sharpen their focus on future

educational goals and deepens their understanding of civic

principles. See id.

Michigan admission officials recognize these substantial

benefits of providing students with a racially and ethnically

diverse educational environment, and these officials depend

on their admission procedures to produce this environment.

See “Q&A re University of Michigan Admissions Policies,”

at _—ihttp://www.umich.edu/~urel/admissions/faqs/q&a.html

(“Michigan Admission Q&A”) (visited on December 11,

2002); University of Michigan Law School, Report and

Recommendations of the Admissions Committee 9-10

(1992) (“Law School Admission Policy”) (“diversity . . . has

the potential to enrich everyone’s education and thus make a

law school class stronger than the sum of its parts. In

particular we seek to admit students with distinctive

perspectives and experiences as well as students who are

particularly likely to assume . . . leadership roles in the bar

and make . . . contributions to society”); id. at 12 (describing

Michigan’s “commitment to racial and ethnic diversity with

special reference to the inclusion of students from groups

which have been historically discriminated against, like

African-Americans, Hispanics and Native Americans, who

without this commitment might not be represented in our

student body in meaningful numbers”).

In sum, diversity does not benefit only African

Americans, Hispanics, and Native Americans at Michigan.

Instead, it benefits students of all races, including Asian

Pacific Americans.”

B. Because Michigan’s Race-Conscious

Admission Procedures Are Flexible, and

Consider a Variety of Factors, These

Procedures Do Not Harm Asian Pacific

Americans or Other Applicants

In addition to the benefits of diversity, there is a second

reason that Asian Pacific Americans are not victimized by

Michigan’s race-conscious admission procedures. Far from

being the rigid quotas portrayed by Petitioners, the

procedures are flexible and thus allow Michigan to consider

> To uphold Michigan's efforts to promote diversity would be entirely

consistent with Regents of the University of California v. Bakke, 438 U.S.

265 (1978), in which Justice Powell concluded that diversity is a

compelling governmental interest. See id. at 314 (Opinion of Powell, J.)

(stating that “the interest of diversity is compelling in the context of a

university's admissions program”). Under Marks v. United States, 430

U.S. 188 (1977), Justice Powell's opinion “constitutes Bakke's holding

and provides the governing standard here.” Grutter, 288 F.3d at 741.

Accordingly, upholding the constitutionality of Michigan's race-

conscious admission procedures would follow a precedent that is a

quarter of a century old and which has been relied upon by educators and

courts alike. See Planned Parenthood of Southeastern Pennsylvania v.

Casey, SOS U.S. 833, 856 (1992) (Opinion of O'Connor, Kennedy, and

Souter, JJ.) (upholding Roe v. Wade because, among other things, “for

two decades of economic and social developments,” people have relied

va the availability of legal abortion and because of “the certain cost of

overruling Roe for people who have ordered their thinking and living

around that case”). Thus, upholding Bakke would not, as the Asian

American Legal Foundation (“AALF’”) contends, create new precedent.

Brief of the Asian American Legal Foundation as Amicus Curiae in

Support of Petitioners (“AALF Brief”), at 3, 22-23. Nor, as the AALF

also argues (id. at 3), would a ruling for Respondents lead to the

establishment of racial quotas, which Bakke forbade as unconstitutional.

See 438 U.S. at 319-20.

the circumstances facing Asian Pacific American applicants,

as well as the circumstances facing students from other

backgrounds.

Petitioners claim that Michigan maintains a “two track”

system, with one track for “under-represented minorities”

and the other for Caucasian Americans, Asian Pacific

Americans, and other purportedly disfavored groups. See

Pet. Brief Gratz, at 21; Pet. Brief Grutter, at 17. Petitioners’

claim is incorrect. There is no “two track” system at

Michigan in which certain minority applicants are considered

separately from all other applicants. See Gratz v. Bollinger,

122 F. Supp. 2d 811, 829 (E.D. Mich. 2000) (stating that no

separate review process exists for under-represented

minority applications in the undergraduate college); Grutter,

288 F.3d at 746 (stating that under-represented minority Law

School applicants are not insulated from competition with

other applicants).*

* Petitioners argue at length that Michigan's efforts to obtain “meaningful

numbers” or 2 “critical mass” of under-represented minorities function as

the equivalent of a quota. See, ¢.g., Pet. Brief Grutter, at 40-41. As the

Sixth Circuit stated, however, “the Law School's ‘critical mass’ is not the

equivalent of a quota, because unlike Davis's reservation of sixteen spots

for minority candidates, the Law School has no fixed goal or target. . .

Because Bakke allows institutions of higher education to pay some

attention to the numbers and distribution of under-represented minority

students, over time reliance on Bakke will always produce some

percentage range of minority enrollment. . . . These results are the logical

consequence of reliance on Bakke. . . . As such they cannot serve as the

basis for a charge that the Law School’s admissions policy is

unconstitutional.” Grutter, 288 F.3d at 747-48.

Moreover, the Law School’s efforts to achieve “meaningful numbers”

of minority students are necessary to avoid precisely the sort of

stereotyping that Petitioners decry. If there are only a handful of students

from under-represented minorities, other students inevitably will assume

that all minorities think and act like that handful. It is only when

“meaningful numbers” of minority students are present that other

(Continued ...)

10

Michigan’s admission officials consider each applicant

according to many academic and non-academic criteria.

When evaluating all applicants at both the undergraduate

college and the Law School, admission officials place

greatest weight upon applicants’ grades and test scores. See

“Description of University of Michigan Undergraduate

Admissions Policy,” at http://www.umich.edu/~urel/

admissions/faqs/uapolicy.html (“Undergraduate Admission

Policy”) (visited on February 7, 2003); Law School

Admission Policy, at 4. Nonetheless, in a variety of

circumstances, Michigan admits certain applicants with

grades or test scores lower than those of other applicants

whom Michigan rejects.° In doing so, admission officials

consider many other factors. These factors include not only

race but also the quality of the application essay, the

difficulty of the courses taken by the applicant, the state and

geographic region where the applicant resides, a

and personal achievement in music, athletics, or other fields

- of endeavor. See Undergraduate Admission Policy;

Michigan Admission Q&A; Law School Admission Policy,

blacks in the United States."” Id. at 747 (citation omitted).

* For example, in 1997 (the year Petitioner Grutter applied to the Law

had lower grades or test scores than Petitioner. See Grutte, Trial Ex. 137

(Larntz Supp. Rpt. at 38).

at 5-6, 10-13; see also Grutter, 288 F.3d at 736-37, 746-47

(stating that law school admission officials examine each

application individually and consider many academic and

non-academic factors); Gratz, 122 F. Supp. 2d at 828-29

(stating that undergraduate college considers applicants

according to numerous factors). In evaluating these factors,

Michigan seeks to enroll a diverse student body, but

diversity is by no means limited to under-represented

minorities.

For instance, the Law School’s admission policy

expressly provides a broad range of factors that can serve as

a basis for diversity admission, including “an Olympic gold

medal, a Ph. D. in physics, the attainment of age 50 in a class

_ that otherwise lacked anyone over 30, or the experience of

having been a Vietnamese boat person.” Grutter, 288 F.3d

at 747 (quoting Law School Admission Policy). Thus,

Michigan’s programs provide sufficient flexibility to take

into account, among other things, the circumstances faced by

Asian Pacific Americans.

Moreover, in this case, Michigan’s decision to treat Asian

Pacific Americans differently from under-represented

minorities is justified by the fact that Michigan already

admits Asian Pacific Americans in significant numbers.

Grutter v. Bollinger, 137 F. Supp. 2d 821, 835 n.15 (E.D.

Mich. 2001) (citing testimony that Law School Admission

Policy did not mention Asian Pacific Americans because the

Law School was admitting significant numbers of them).

If Law School officials believe that they are having

difficulty enrolling Asian Pacific Americans (or any other

racial or ethnic group) without special attention to their race

or ethnicity, the admission procedures allow the officials to

pay special attention to that factor. See Proof Brief of

Defendants-Appellants, Grutter v. Bollinger, No. 01-1447, at

12

50 n.33 (6th Cir. May 24, 2001) (citing testimony of Dean

Jeffrey Lehman). This flexibility demonstrates that

Michigan's race-conscious admission procedures do not

victimize Asian Pacific Americans (or any other racial or

ethnic group) and are narrowly tailored to achieve the

compelling governmental interest in maintaining racial

diversity in public education.°

* This flexibility also rebuts Petitioner's claim (Pet. Brief Grutter, at 43)

that Michigan illogically categorizes Asian Pacific Americans as an

“undifferentiated mass[{]” although “one could easily identify dozens of

separate racial or ethnic groups contained” in that category. Likewise,

this flexibility, which permits consideration of the circumstances each

applicant faces, rebuts the contention of the Asian American Legal

Foundation (AALF Brief, at 20) that Asian Pacific Americans and people

of all races are “oppress[ed]” by race-conscious affirmative action that

“emphasizes the group over the individual.”

Moreover, the flexibility of Michigan's admission procedures attests to

their superiority over plans used in Texas and Florida that the United

States advocates as race-neutral alternatives to Michigan's program. See

Brief-for the United States as Amicus Curiae Supporting Petitioner,

Grutter v. Bollinger, at 16-27. Because these plans oblige officials to

admit students based on a numerical system (e.g., the top 10 percent of

all high school students in the state), they do not provide students with as

good an opportunity to learn in a diverse environment as Michigan's

flexible, multi-factor procedures. See, ¢.g., Tienda et al., Closing the

Gap? Admissions and Enrollments at the Texas Public Flagships Before

and After Affirmative Action (2003) (“Closing the Gap?) (emphasizing

that Texas's plan, which guarantees college admission to the top 10

percent of high school graduates in the state based on their grades, is not

an alternative to race-conscious admission procedures for educatic.ral

institutions striving to diversify their student bodies) (copy lodged with

the Clerk of the Court). To the extent such plans produce racial diversity,

they do so through reliance on continued residential and school

segregation throughout the state in which the system applies. In other

words, because schools tend to be segregated by race or ethnicity, a plan

that admits the top 10 percent of the students from each schooi will mean

that, at some schools the top 10 percent will be overwhelmingly

Caucasian American, whereas at other schools it will be heavily African

(Continued ...)

13

Thus, race is but one factor among many that Michigan

admission officials take into account in their effort to provide

a diverse academic community. Admission officials’

consideration of applicants according to many criteria

affords these officials the latitude they need to make

informed judgments about how best to advance Michigan’s

educational goals given the nature of American society and

applicants’ backgrounds. See Michigan Admission Q&A;

Law School Admission Policy, at 11-12. Under this flexible,

multi-factor approach, Asian Pacific Americans and other

applicants are not victimized.

c Empirical Evidence Refutes Petitioners’

Suggestion That Asian Pacific Americans

Would Significantly Benefit from the

Elimination of Michigan’s Race-Conscious

Admission Procedures

By emphasizing the detriment Asian Pacific Americans

allegedly suffer as the result of affirmative action, Petitioners

and their supporters imply that Asian Pacific Americans will

gain substantially if race-conscious admission procedures are

eliminated. Indeed, some prominent affirmative action

critics assert that Asian Pacific Americans stand to gain the

most from affirmative action’s demise. See Stephan

Thernstrom and Abigail Thernstrom, Reflections on the

Shape of the River, 46 UCLA L. Rev. 1583, 1629 (1999)

(asserting that Asian Pacific Americans derive the greatest

(... Continued)

likely to be aided by such plans. (See Census 2000 Fact Sheet:

Residential Segregation in United States Metropolitan Areas | (April 27,

2001) (“The segregation of Asian/Pacific Islanders is lower than [African

Americans or Hispanic Americans) and declined in most [Metropolitan

Statistical Areas).”’).

14

benefit when race-conscious admission policies are

eliminated).

The empirical evidence, however, rebuts these

suggestions. During the late 1990s, after California (home to

the largest Asian Pacific American population of any U.S.

state) banned affirmative action, enrollment of African

Americans, Hispanics, and Native Americans at three state

law schools decreased 13 percent (from 23 percent of first-

year classes to 10 percent). See William C. Kidder, Situating

Asian Pacific Americans in the Law School Affirmative

Action Debate: Empirical Facts About Thernstrom’s

Rhetorical Acts, 7 Asian L.J. 29, 45 (2000). See also Daily

Bruin, “Eyes on Michigan: the California Case” (Feb. 7,

2003) (noting that only two African Americans graduated

from UCLA’s law school in 2002, a steep decrease from the

period preceding the ban). Enrollment of Asian Pacific

Americans in these state law schools, however, did not

increase accordingly; to the contrary, it rose only one

percent, and the enrollment of Filipino Americans

plummeted. See Kidder, 7 Asian L.J. at 39 (Asian Pacific

Americans “constituted 18.3 percent of UC Law School

classes in 1997-99, compared to 17.4 percent for 1994-96”).

By contrast, Caucasian Americans saw their enrollment

figures increase by approximately 12 percent. Caucasian

Americans accounted for 59.8 percent of enrollment in the

state law schools during the three years before the ban, but

71.7 percent after the ban. Id. at 44.’

’ Further, mixed evidence has emerged about the effect on Asian Pacific

Americans after affirmative action was banned in Texas in the mid-

1990s. After the ban, fewer Asian Pacific Americans enrolled as

undergraduates at one of Texas’s two flagship public universities, while

more Asian Pacific Americans enrolled at the other. See Closing the

Gap?, at 17. At the University of Texas Law School, Asian Pacific

American enrollments were virtually unaffected, with an average of 30

(Continued ...)

15

In sum, Petitioners and their supporters are wrong to

contend that Michigan’s race-conscious admission

procedures harm Asian Pacific Americans. Rather than

being victimized by Michigan’s affirmaiive action programs,

Asian Pacific American students, like all students, receive

significant benefits from Michigan’s diverse educational

environment. Further, Michigan’s race-conscious admission

procedures are not rigid quotas, but instead are flexible

procedures that take into account many facts about each

applicant, including the circumstances faced by Asian

Pacific Americans. Lastly, empirical evidence refutes the

suggestion of Petitioners and their supporters that Asian

Pacific American students will gain substantially from

affirmative action’s demise.®

(... Continued)

Asian Pacific Americans enrolling before the ban and 31 after the ban.

See William C. Kidder, Affirmative Action in Higher Education: Recent

Developments in Litigation, Admissions and Diversity Research, 12

Berkeley La Raza L.J. 173, 215 (2001).

* Notably, Asian Pacific Americans themselves have expressed their

clear support for affirmative action. In the 2001 Pilot Study of the

National Asian Political Survey, 72 percent of Asian Pacific American

respondents favored affirmative action. See Pei-te Lien et al., A

Summary Report of the Pilot Study of the National Asian American

Political Survey 10 (2001) (copy lodged with the Clerk of the Court).

Other polls also reveal Asian Pacific Americans’ support for affirmative

action. See, e.g., November 6, 1996 press release of Asian Pacific Legal

Center of Southern California (discussing exit poll revealing that 76

percent of Asian Pacific American voters had voted against Proposition

209, which banned affir.native action) (copy lodged with the Clerk of the

Court); “Asian Pacific American Agenda: Asian Americans on the

Issues,” Asian Week 14-17 (23-29 August 1996) (discussing how 57

percent of respondents favored affirmative action and 55 percent favored

consideration of race in college admission) (copy lodged with Clerk of

the Court).

16

Il. NOTWITHSTANDING THE CLAIMS OF _ -

OPPONENTS OF AFFIRMATIVE ACTION

THAT ASIAN PACIFIC AMERICANS NO

LONGER SUFFER FROM DISCRIMINATION,

IN APPROPRIATE CIRCUMSTANCES ASIAN

PACIFIC AMERICANS SHOULD BE

INCLUDED IN AFFIRMATIVE ACTION

PLANS AS UNDER-REPRESENTED

MINORITIES

As shown above, Asian Pacific Americans are not harmed

by Michigan’s flexible race-conscious admission procedures.

The absence of harm in the present case, however, should

not be allowed to obscure the fact that, at other schools, or in

contexts other than education, it is entirely appropriate (and,

in fact, necessary) to include Asian Pacific Americans in

affirmative action programs as under-represented minorities.

For example, Asian Pacific Americans frequently need such

programs to ensure diversity in areas such as employment

and public contracting. This is so despite the claims of

certain opponents of affirmative action who assert that Asian

Pacific Americans no longer suffer from racism in American

society. See, e.g., Stephan Thernstrom, Farewell to

Preferences?, 130 Pub. Interest 34, 47-49 (1998) (referring

to the claim that Asian Americans “face enormous problems

in contemporary America because of their race” as a

“fiction” and as a “silly notion”). Affirmative action

opponents use this assertion to suggest that affirmative

action is unnecessary for Asian Pacific Americans because

they already have succeeded in American society. See id. at

41. Proponents of this myth imply that other minorities also

would succeed if they acted more like Asian Pacific

Americans. See Frank Wu, Yellow: Race in America

Beyond Black and White 49, 59-67 (2001) (“Yellow”)

(criticizing myth that Asian Pacific Americans are a “model”

17

for other minority groups) (copy of relevant pages lodged

with Clerk of the Court).

A substantial body of scholarly literature has debunked

this “model minority” myth. See, e.g., Wu, Yellow, at 39-59

(discussing the empirical and other flaws in this myth);

Deborah Woo, Glass Ceilings and Asian Americans: The

New Face of Workplace Barriers 34-38 (2000) (“Glass

Ceilings”) (same) (copy of relevant pages lodged with Clerk

of the Court). This myth is empirically false and ignores

current discrimination and racism against Asian Pacific

Americans. Moreover, this myth rests on stereotypes of

Asian Pacific Americans as being more racially and

culturally inclined to be hard-working and industrious than

other minorities. See Wu, Yellow, at 45-47, 49, 62-63, 74-77

(discussing how the myth emerged with a 1966 article

contrasting Japanese Americans and African Americans

based on cultural differences, and criticizing the “model

minority” myth as a form of stereotyping); Woo, Glass

Ceilings, at 24, 33-38 (criticizing explanations of

socioeconomic disparities between Asian Pacific Americans

and other races based on cultural differences such as

Confucianism).

First, the empirical evidence refutes the “model minority”

myth. Contrary to the claims of the proponents of the myth,

Asian Pacific Americans’ socioeconomic status reflects the

lingering effects of a long history of racial discrimination.

Indeed, a higher percentage of Asian Pacific Americans than

Caucasian Americans lives in poverty. See Diana Ting Liu

Wu, Asian Pacific Americans in the Workplace 60 (1997)

(copy of relevant pages lodged with Clerk of the Court).

Asian Pacific Americans also have been unable to achieve

income levels commensurate with their academic training

and credentials. Asian Pacific Americans’ median individual

income is lower than that of Caucasian Americans and the

18

population as a whole for both high school and college

graduates. Id. at 59-60. Further, discriminatory employment

barriers resulting from the stereotype of Asian Pacific

Americans as unassertive “grinds” who lack leadership skills

have hindered Asian Pacific Americans’ ability to advance to

management positions. See Woo, Glass Ceilings, at 120

(discussing cultural stereotypes about Asian Pacific

Americans’ leadership ability); Paul Brest and Miranda

Oshige, Affirmative Action for Whom?, 47 Stan. L. Rev. 855,

894 (1995) (noting negative stereotype that Asian Pacific

Americans have poor leadership and interpersonal skills).’

Asian Pacific Americans experience such “glass ceiling”

barriers in many occupational contexts, including the

* Indeed, according to one study of all racial groups, Asian Pacific

Americans “face the worst chance of being advanced into management

positions.” See LEAP Asian Pacific American Pub. Policy Inst. &

UCLA Asian American Studies Ctr., The State of Asian Pacific America

215-216 (1993) (copy lodged with the Clerk of the Court). According to

the Equal Employment Opportunity Commission (“EEOC”), a disparity

exists for Asian Pacific Americans between the extent to which they

occupy professional positions that require a college degree and the extent

to which they hold management positions with responsibilities of

supervision and policy setting. See EEOC, Job Patterns for Minorities

and Women in Private Industry (1998), http://www.eceoc.

gov/stats/jobpat/1998/tables-1.html) (visited Feb. 4, 2003). EEOC data

shows that 29 percent of Asian Pacific American employees are

professionals, but only 7.4 percent fill management positions. See id.

19

corporate sector, ° the federal government,'' science and

engineering,'* academia,'® and the federal judiciary.'* Asian

'° Asian Pacific Americans comprised less than 0.3 percent of senior

executives in the United States in 1990. See Korn/Ferry International

Executive Profile: A Decade of Change in Corporate Leadership 23

(1990) (copy lodged with the Clerk of the Court). Today, Asian Pacific

Americans comprise less than one percent of the board directorships of

Fortune 500 companies. See White House Initiative on Asian Americans

and Pacific Islanders, A People Looking Forward, Action for Access and

Partnership in the 21st Century 60-61 (2001) (“A People Looking

Forward” ), http://www.aapi.gov/resources.htm.

'' According to EEOC data, Asian Pacific Americans are under-

represented in supervisory positions in 23 out of 25 federal departments

or agencies (of those departments or agencies reporting this information)

and constitute just 1.6 percent of the federal workforce’s top managers

and highest salaried employees. See A People Looking Forward, at 104-

05; Asian Americans and Pacific Islanders Joint Task Force, AAP/

Federal Employment and Glass Ceiling Issues 11 (2001) (copy lodged

with the Clerk of the Court).

'? Asian Pacific Americans are less likely than other minority groups to

be in management positions in science and engineering fields. See

National Science Foundation, Women, Minorities, and Persons with

Disabilities in Science and Engineering (1998), at www.nsf.gov/sbe/

srs/nsf99338/pdfstart.htm (visited on February 5, 2003).

> Among minorities, Asian Pacific Americans occupy the smallest

number (under one percent) of top administrative positions at two- and

four-year academic institutions combined. See Woo, Glass Ceilings, at

118-19. Asian Pacific Americans also have been under-represented in

professional school faculties. For example, as of 1993, over 70 percent

of American law schools had never hired an Asian Pacific American

faculty member. See Pat K. Chew, Asian Americans in the Legal

Academy: An Empirical and Narrative Profile, 3 Asian LJ. 7, 33

(1996).

'* Of almost 1,600 active judges in the federal judiciary, only 0.9 percent

are Asian Pacific American. See Edward M. Chen, “Speech Presented at

the California Law Review Dinner,” April 11, 2002 (unpublished) (copy

lodged with the Clerk of the Court).

20

Pacific Americans also suffer significant discrimination in

the area of government contracting.’

Second, the “model minority” myth ignores the

continuing existence of racism against Asian Pacific

Americans in contemporary American society. In 2001, a

comprehensive survey revealed that 71 percent of

respondents held either decisively negative or partially

negative attitudes toward Asian Americans. See Committee

of 100, American Attitudes Toward Chinese Americans and

Asians 56 (2001) (“American Attitudes”) (copy lodged with

Clerk of the Court)."® Racial representations and

stereotyping of Asian Pacific Americans, particularly in

well-publicized instances where public figures or the mass

'S See Notice: Proposed Reforms to Affirmative Action in Federal

Procurement, Appendix - The Compelling Interest for Affirmative Action

in Federal Procurement: A Preliminary Survey, 61 Fed. Reg. 26042,

26050-63 (May 23, 1996) (citing congressional hearings since 1980

regarding discrimination against minority-owned business enterprises,

and stating that Congress found that “11 percent of Asian business

owners had experienced known instances of discrimination in the form of

higher quotes from suppliers” (id. at 26061) and that Asian Pacific

American-owned businesses receive, on average, only 60 cents of each

dollar “of state and local expenditures that those firms would be expected

to receive, based on their availability” (id. at 26061-62)); Theodore Hsien

Wang, Swallowing Bitterness: The Impact of the California Civil Rights

Initiative on Asian Pacific Americans, Ann. Surv. Am. L. 463, 469

(1995) (stating that numerous studies conducted by local governments in

California concluded that Asian Pacific American businesses face

significant discrimination in competition for government contracts).

'© The study further found that, of those respondents holding decisively

negative views, 34 percent said they would be upset if a significant

number of Asian Americans moved into their neighborhood and 57

percent believed that increased Asian American population is bad for

America. See American Attitudes, at 46, 50. Twenty three percent of

respondents said that they would be “uncomfortable” if an Asian

American were elected president. /d. at 40.

21

media express such attitudes,’ reflect and reinforce an image

of Asian Pacific Americans as “different,” “foreign,” and the

“enemy,” thus stigmatizing Asian Pacific Americans,

~ heightening racial tension, and instigating discrimination.'*

See Cynthia Kwei Yung Lee, Beyond Black and White:

Racializing Asian Americans in a Society Obsessed with

O.J., 6 Hastings Women’s LJ. 165, 181 (1995) (“Beyond

Black and White”), Spencer K. Turnbull, Wen Ho Lee and

the Consequences of Enduring Asian American Stereotypes,

7 Asian Pac. Am. L.J. 72, 74-75 (2001); Terri Yuh-lin Chen,

Hate Violence as Border Patrol: An Asian American Theory

of Hate Violence, 7 Asian L.J. 69, 72, 74-75 (2000) (“Hate

Violence”), Jerry Kang, Racial Violence Against Asian

Americans, 106 Harv. L. Rev. 1926, 1930-1932 (1993).

'’ For example, during the trial of OJ. Simpson in the mid-1990s,

Senator Alfonse D’ Amato, using a crudely exaggerated Japanese accent

on a radio talk show, mocked the handling of the case by Judge Lance

Ito, a third generation Japanese American who speaks English without an

accent. See Cynthia Kwei Yung Lee, Beyond Black and White:

Racializing Asian Americans in a Society Obsessed with O.J., 6 Hastings

Women’s LJ. 165, 175 (1995). Other incidents of such stereotyping in

connection with the Simpson trial included racist epithets that appeared

on national radio programs. See id. at 176.

'* See American Attitudes, at 8. In the survey discussed above, 32

percent of the respondents said they believed that Chinese Americans are

more loyal to China than to the United States, and 46 percent of those

surveyed said they believed that “Chinese Americans passing on

information to the Chinese government is a problem.” See American

Attitudes, at 18, 26. Such racial attitudes toward Japanese Americans

underlay the federal government's internment of approximately 120,000

of these citizens during World War Il. See Korematsu v. United States,

323 U.S. 214 (1944); see also Adarand Contractors, inc. v. Pena, 515

U.S. 200, 236 (1995) (recognizing that the internment of Japanese

Americans upheld in Korematsu was “illegitimate” and citing

Congressional finding that this internment was “carried out without

adequate security reasons . . . and [was] motivated largely by racial

prejudice, wartime hysteria, and a failure of political leadership” (quoung

Pub. L. 100-383, § 2(a), 102 Stat. 903-904)).

22

Such negative racial representation and stereotyping also can

incite violence directed against Asian Pacific Americans.

See Chen, Hate Violence, 7 Asian L.J. at 74-76. Thousands

of incidents of anti-Asian Pacific American violence have

been documented over the last decade, including physical

harassment, assault, attempted murder, and murder. See

National Asian Pacific American Legal Consortium 2000

Audit of Violence Against Asian Pacific Americans 9 (2001)

(copy lodged with the Clerk of the Court).'*

In sum, ample evidence exists to show the falsity of the

notion that Asian Pacific Americans uniformly are a

socioeconomic success story and that Asian Pacific

Americans do not suffer from racism. The reality is that

Asian Pacific Americans continue to suffer from racial

discrimination in many aspects of life. In certain contexts,

such as employment or public contracting, the effects of such

discrimination are sufficiently egregious that Asian Pacific

Americans should be specifically included in affirmative

action programs to ensure diversity. In other contexts, such

'? Moreover, the myth that Asian Pacific Americans uniformly are

economically prosperous encourages criminals to target Asian Pacific

Americans. See Jerry Kang, Racial Violence Against Asian Americans,

106 Harv. L. Rev. 1926, 1929-30 (1993). The implied inferiority of

other minority races that is inherent in the myth’s depiction of Asian

Pacific Americans as a success story also creates or intensifies

resentment and scapegoating impulses, especially im competitive

circumstances (e.g., school) or in times of economic downturn. See id. at

1934-36 (explaining that publicity about supposed successes of Asian

Pacific Americans implies to other minority groups “that, but for their

incompetence or indolence, they too would be succeeding in America,”

thus fueling resentment against Asian Pacific Americans), Frank Wu,

Yellow: Race in America Beyond Black and White 70-73 (2001)

(explaining how myth of Asian Pacific American prosperity instigated

racial tension in Detroit during the recession in 1982 and in Los Angeles

during the 1992 riots following acquittal of the defendants accused of

23

as the present case, Asian Pacific Americans will receive fair

treatment even if not expressly included in affirmative action

programs because the flexibility of programs such as

Michigan's takes into account the unique backgrounds and

distinctive experiences of Asian Pacific American applicants.

In either case, the Court should reject the efforts of those

who rely on the “model minority” myth to suggest that Asian

Pacific Americans (and other minority groups) do not need

or are disadvantaged by affirmative action.

CONCLUSION

For all of these reasons, Amici support Michigan's

affirmative action programs. Accordingly, Amici

respectfully request that this Court affirm the judgment of

the Sixth Circuit in Grutter v. Bollinger and reverse the

District Court’s decision in Gratz v. Bollinger.

Dated: February 14, 2003 Respectfully submitted,

KAREN K. NARASAKI MARK A. PACKMAN

VINCENT A. ENG Counsel of Record

TERRY M. AO JONATHAN M. COHEN

National Asian Pacific ROBERT THORON TAYLOR

American Lega! Consortium JOEL E. GREER

1140 Connecticut Ave., NW Gilbert Heintz & Randolph LLP

Suite 1200

1100 New York Ave., NW

Washington, DC 20036 Suite 700

(202) 296-2300 Washington, DC 20005

(202) 772-2320

JOANNIE C. CHANG

Asian Law Caucus

939 Market Street, Suite 201

San Francisco, CA 94103

(415) 896-1701

MARGARET FUNG

Asian American Lega!

Defense and Education Fund

99 Hudson St.

New York, NY 10013

(212) 966-5932

TRANG Q. TRAN

Asian American Legal

Center Inc.

590 Lyric Centre

440 Louisiana

Houston, TX 77002

(713) 223-8855

JAYASHREE Y. BIDARI

Association of Asian Indian

Women in Ohio

31031 Center Ridge Road,

Suite 6

Westlake, OH 44145

(440) 734-7788

STEWART KWOH

JULIE A. SU

1145 Wilshire Blvd., 2nd Floor

Los Angeles, CA 90017

(213) 977-7500

VICTOR M. HWANG

Ivy LEE

Asian Pacific Islander Legal

Outreach (formerly Nihonmachi

Legal Outreach)

1188 Franklin St., Suite 202

San Francisco, CA 94109

(415) 567-6255

MARI MATSUDA

EUGENE K. OHM

D.C. Asians for Peace and Justice

401 12” St. South #606

Arlington, VA 22202

(866) 248-7671

KIRAN AHUJA

National Asian Pacific

American Women’s Forum

P.O. Box 66124

Washington, DC 20035

(202) 423-4933

RUTHE CATOLICO ASHLEY

National Asian Pacific

American Bar Association

733 15th St., NW,

Suite 315

Washington, DC 20005

(202) 421-9039

BENJAMIN A. SANTOS

National Coalition for Asian

Pacific American Community

Development, Inc.

1001 Connecticut Ave., NW

Suite 730

Washington, DC 20036

(202) 223-2442

CHIRAG SHAH

South Asian Bar Association

of Southern California

6300 Wilshire Blvd.,

Suite 2000

Los Angeles, CA 90048

(323) 655-4700

RICHARD G. KONDA

Asian Law Alliance

180 Jackson St.

San Jose, CA 95112

(408) 287-9710

Attorneys for Amici Curiae

la

APPENDIX

List of Amici Curiae

The National Asian Pacific American Legal Consortium

(NAPALC)

NAPALC is a national, nonprofit, nonpartisan organization

whose mission is to advance the legal and civil rights of

Asian Pacific Americans. NAPALC is committed to

supporting affirmative action as a way of ensuring equal

opportunities for women and minorities. NAPALC focuses

on educating policymakers, corporations, institutions, and

the general public on the facts and importance of affirmative

action to the Asian Pacific community, and works with other

civil rights organizations and policymakers to ensure that

affirmative action programs are appropriate and effective and

that they address Asian Pacific American concerns.

The Asian Law Caucus (ALC)

ALC is a nonprofit, public interest legal organization whose

mission is to promote, advance, and represent the civil rights

of Asian Pacific Islander communities. Founded in 1972, the

ALC is the nation’s oldest Asian Pacific Islander civil rights

legal organization. The ALC has provided legal services and

community education on affirmative action and

discrimination, represented individuals in discrimination

suits, and conducted local and regional policy advocacy on

affirmative action. ALC is affiliated with the National Asian

Pacific American Legal Consortium.

The Asian Pacific American Legal Center of Southern

California (APALC)

APALLC is the largest provider of direct legal services, civil

rights advocacy, community education, and impact litigation

for low-income Asian Pacific Americans in the country.

2a

Since 1982, APALC has represented Asian Pacific

Americans in a number of areas, including anti-

discrimination, workers’ rights, family law, immigration, and

hate crimes. APALC is also a leader in bringing diverse

communities together to improve race relations. APALC was

co-counsel in a federal lawsuit to increase minority

representation in the Los Angeles Police Department and has

litigated numerous employment cases to defend the rights of

working people. APALC is affiliated with the National Asian

Pacific American Legal Consortium.

The Asian American Business Roundtable (AABR)

AABR was established in 1989 to help Asian Pacific and

other minority-owned companies expand their market with

the Federal government as well as the commercial sector by

providing information that is accurate and timely to enable

them to make informed decisions beneficial to their

companies.

The Asian American Legal Center Inc. (AALC)

AALC is a nonprofit civil rights organization dedicated to

advancing the civil and legal rights of Asian Americans and

educating Asian Americans regarding those rights.

The Asian American Legal Defense and Education Fund

(AALDEF)

AALDEF, founded in 1974, is a nonprofit organization

based in New York City. AALDEF defends the civil rights

of Asian Americans nationwide through litigation, legal

advocacy, and dissemination of public information.

Throughout its long history, AALDEF has supported

affirmative action programs in higher education.

The Asian Law Alliance (ALA)

ALA, founded in 1977, is a nonprofit, public interest legal

organization with the mission of providing equal access to

3a

the justice system to the Asian and Pacific Islander

communities in Santa Clara County, California. ALA has

provided community education and legal services on

affirmative action and discrimination issues.

The Asian Pacific American Labor Alliance (APALA)

APALA was founded in 1992 with the strong support of the

AFL-CIO and is the first and only organization of Asian

American and Pacific Islander trade unionists. Since its

inception, APALA has been committed to organizing the

unorganized, mobilizing the Asian American and Pacific

Islander community for political action and mobilization,

advocating for workers’ rights, civil rights, and immigrant

rights, and building alliances between labor and community.

APALA has always been a strong supporter of programs that

benefit the Asian American and Pacific Islander

communities beyond labor issues.

The Asian Pacific Islander Legal Outreach (APILO)

Formerly Nihonmachi Legal Outreach, APILO is a 28-year-

old nonprofit, social justice law firm serving the Asian

American and Pacific Islander communities of the Greater

Bay Area. With offices in San Francisco and Oakland,

APILO’s multilingual staff of 26 provides legal services to

several thousand Asian Americans and Pacific Islanders each

year in more than a dozen dialects and languages. Attorneys

with APILO have previously participated in several federal

impact and class action cases, including the defense of

diversity in cases such as Rios v. Regents of the University of

California.

The Association of Asian Indian Women in Ohio

(AATWO)

AAIWO is a nonprofit organization representing Asian

Indian Women. Founded in 1989, AATWO fosters and

supports Asian Indian women to assume leadership roles

ta

through networking and volunteering opportunities, and by

encouraging new immigrants to mainstream into American

society. AAITWO emphasizes education and provides

scholarships to displaced homemakers and youth. AATWO

presents multicultural events to promote diversity and mutual

understanding between different cultures. The AAITWO

Helpline is staffed by professionals to help women and youth

in crises. Membership and all services are free.

The Association of Asian Pacific Community Health

Organizations (AAPCHO)

AAPCHO is a national association representing community

health organizations dedicated to promoting advocacy,

collaboration, and leadership that improves the health status

and access of Asian Americans, Native Hawaiians, and

Pacific Islanders within the United States, its territories, and

freely associated states, primarily through our member

community health clinics. Formed in 1987, AAPCHO

advocates for policies and programs that will improve the

provision of health care services that are community driven,

financially affordable, linguistically accessible, and

culturally appropriate. As a unified voice of its membership,

AAPCHO shares its collective knowledge and experiences

with policy makers at the national, state, and local levels.

Chinese for Affirmative Action (CAA)

CAA is a 33-year-old, membership-based, nonprofit

organization whose mission is to defend and promote the

civil rights of Asian Americans within the context of

advancing a multiracial democracy in the United States.

Throughout its history, CAA has engaged in policy advocacy

to develop affirmative action programs in employment,

education, and contracting in the San Francisco Bay Area.

Sa

D.C. Asians for Peace and Justice (DCAPJ)

DCAPJ is an Organization of Asian Americans in the greater

Washington, D.C., area. DCAPJ is dedicated to civil rights,

peace, and human rights for all. DCAPJ members are

descended from all regions of the wide-ranging Asian

diaspora, including South Asia, the Philippines, Korea,

China, Japan, Okinawa, and Southeast Asia, and have direct

experience with discrimination in the United States. DCAPJ

therefore stands committed to affirmative action and equality

in education

The Filipino Civil Rights Advocates (FilCRA)

FilCRA advocates for civil rights legislation that ensures

equal opportunities and protection of all individuals

regardless of race, national origin, ethnicity, gender, sexual

orientation, age, and religion in employment, education,

housing, and health, and supports legal causes that seek to

protect and expand civil rights.

Filipinos for Affirmative Action (FAA)

FAA’s mission is to build the Filipino community by

addressing the needs of the most vulnerable through direct

service and volunteerism, and by strengthening the Filipino

community's capacity to participate as equals in the larger

society.

Hmong National Development, Inc. (HND)

HND is a national, nonprofit organization developing

Capacity to ensure the full participation of Hmong in society.

HND works with local and national organizations, public and

private entities, and individuals to promote educational

opportunities, to increase community capacity, and to

develop resources for the well-being, growth, and full

participation of Hmong in society.

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The Japanese American Citizens League (JACL)

JACL, founded in 1929, is one of the oldest and largest

Asian American nonprofit, nonpartisan organizations

committed to securing and upholding the human and civil

rights of Americans of Japanese ancestry and others. During

World War II, Japanese Americans were denied

constitutional rights and were incarcerated by the United

States for no reason other than their ethnicity. Through

JACL and other groups, those who were wrongfully forced

into internment camps obtained redress, but discrimination

against Japanese Americans remains an issue. Knowing the

harm caused by discrimination and the importance of

programs that counter the effects of discrimination, JACL

has worked hard to educate people on the need for

affirmative action programs.

Leadership Education for Asian Pacifics, Inc. (LEAP)

LEAP is a national, nonprofit, nonpartisan organization.

Since 1982, LEAP has worked to achieve full participation

and equality of Asian Pacific Americans through innovative

leadership education programs, community outreach, and

public policy initiatives designed to develop people, inform

society, and empower communities.

The National Association for the Education and

Advancement of Cambodian, Laotian, and Vietnamese

Americans (NAFEA)

NAFEA is a nonprofit organization serving professionals

who are Southeast Asian Americans and those who work

with the Southeast Asian immigrant/American community in

fields of education, social services, and community

development. NAFEA seeks to provide and promote quality

education for Southeast Asian immigrant/American students,

improvement in the quality of life for Southeast Asian

families, better understanding and appreciation for the

diverse Southeast Asian backgrounds/languages and

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cultures, and exchange of information among professionals

and community members. NAFEA also seeks to provide the

linkage between Southeast Asian American professionals

and others working with the Southeast Asian community.

The National Asian Pacific American Bar Association

(NAPABA)

NAPABA is the national professional association of Asian

Pacific American attorneys, judges, law professors, and law

students. NAPABA was incorporated in 1989 to represent

and advocate on a national level for the interests of Asian

Pacific American attorneys and their communities. To

advance its goals, NAPABA monitors legislative

developments and judicial appointments, and advocates on

issues of importance to Asian Pacific American lawyers and

the community.

The National Asian Pacific American Women’s Forum

(NAPAWF)

NAPAWF is a grassroots organization dedicated to forging a

progressive movement for social and economic justice and

the political empowerment of Asian and Pacific American

women and girls. NAPAWF believes that affirmative action

programs are necessary to address the myriad educational

and economic obstacles facing APA women and girls.

The National Coalition for Asian Pacific American

Community Development, Inc. (National CAPACD)

CAPACD is the first national advocacy organization

dedicated to addressing the housing, economic, and

community development needs of Asian Americans and

Pacific Islanders. Our mission is to be a powerful voice for

the unique community development needs of Asian

American and Pacific Islander communities and to

strengthen the capacity of community-based organizations to

create neighborhoods of hope and opportunity. National -

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CAPACD is built on the principle that equal access in

education and employment is essential to progress in all

communities.

National Council of Asian American Business

Associations (NCAABA)

The mission of NCAABA is to bring together the leaders of

the Asian Pacific American Chambers of Commerce and

business associations across the country to unite and develop

the formation of a coalition that will address issues in the

area of economic development, public contracting and

private procurement policies, public policy, and fiscal

impacts that affect APA business owners.

National Federation of Filipino American Associations

(NaFFAA)

NaFFAA is a nonprofit, nonpartisan civil rights organization

dedicated to promoting the interests and betterment of

Filipinos and Filipino Americans in the United States.

Founded in 1997, NaFFAA represents over 300 Filipino

American community organizations and _ institutions.

NaFFAA works in coalition with other civil mghts

organizations to ensure that Asian Pacific Americans enjoy

equal opportunities in education, employment, and industry.

National Korean American Service & Education

Consortium (NAKASEC)

NAKASEC seeks to empower and improve the lives of

Korean Americans through advocating for their civil rights

and ful! equality. By facilitating grassroots organizing and

political/civic participation of Korean Americans,

NAKASEC works toward building coalitions with other

communities across the nation. NAKASEC also promotes

the Korean American cultural heritage as part of diversity in

multi-ethnic America. Founded by four local Korean

American organizations with similar missions in 1994,

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NAKASEC has been an active participant in immigrant and

civil rights activism.

Organization of Chinese Americans, Inc. (OCA)

OCA is a nonprofit, nonpartisan civil rights organization

dedicated to ensuring the equality of Chinese Americans,

Asian Americans, and all Americans in the United States.

Founded in 1973, OCA currently represents over 10,000

members in 50 chapters and 30 college affiliates. OCA has

worked to ensure the Asian Pacific Americans are treated

fairly and are accorded the rights guaranteed to them under

the Constitution, federal, state, and local law.

South Asian Bar Association of Southern California

(SABA-SC)

SABA-SC is a voluntary bar association of over 300 South

Asian attorneys throughout Southern California.

Southeast Asia Resource Action Center (SEARAC)

SEARAC was founded in 1979 to facilitate the relocation of

Southeast Asian refugees into American society as well as

the development of nonprofit organizations led by and for

Southeast Asians. SEARAC's principal mission is to advance

the interests of Southeast Asian Americans by promoting

community empowerment and leadership development, as

well as advocating for and representing the diverse Southeast

Asian American community on issues and concerns such as

educa” on, health care, safety, economic development, and

civil rights.