# Amicus Curiae Brief — Gratz v. Bollinger

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0608%3A37

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 244

## Text

~

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 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.

6a

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

7a

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 -

8a

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,

9a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0608%3A37. Public record. Not legal advice.