Amicus Curiae Brief — Parents Involved in Community Schools v. Seattle School Dist. No. 1

2V | uPreme Court, U

Se [Supreme Coun TS

FILED

No. 05-908 AUG 2 1 2006

CLERK |

In The

Supreme Court of the Anited States

¢

PARENTS INVOLVED IN

COMMUNITY SCHOOLS,

Petitioner,

v.

SEATTLE SCHOOL

DISTRICT, NO. 1, et al.,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

+

AMICUS CURIAE BRIEF ON THE MERITS

OF MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

S

WILLIAM PERRY PENDLEY*

*Counsel of Record

JOEL M. SPECTOR

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

=

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. How are the Equal Protection rights of public high

school students affected by the jurisprudence of Grutter v.

Bollinger, 539 U.S. 306 (2003), and Gratz v. Bollinger, 539

U.S. 244 (2003)?

2. Is racial diversity a compelling interest that can

justify the use of race in selecting students for admission

to public high schools?

3. May a school district that is not racially segre-

gated and that normally permits a student to attend any

high school of her choosing deny a child admission to her

chosen school solely because of her race in an effort to

achieve a desired racial balance in particular schools, or

does such racial balancing violate the Equal Protection

Clause of the Fourteenth Amendment?

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............::csseccesseesseeeeseeees i

TABLE OF AUTHORITIES ...............csscccsssscsssoseesssceeees iv

IDENTITY AND INTEREST OF AMICUS CURIAE... 1

OPINIONS BELOW AND JURISDICTION. .................. 2

SUMMARY OF THE ARGUMENT ................::ceeeeeeeee 2

NT <eiccnicinciiptinctisiinnbiastntiiinlinciiiiniaiiinenibnnminininmpties 3

I. THE TEXT OF THE EQUAL PROTECTION

CLAUSE PROHIBITS THE DISTRICT FROM

ENGAGING IN RACIAL DISCRIMINATION

TO ACHIEVE RACIAL DIVERSITY ................ 3

A. Adherence To The Text Of The Constitu-

tion Is The Most Intrinsically Sound

Method Of Constitutional Construction..... 3

B. The Text Of The Equal Protection Clause

Absolutely Prohibits Racial Discrimination

By Government Actors.................ccceeeceeeeeeee 5

1. Contemporaneous understanding of

the Clause reveals that its prohibition

SO icrcsinbintincseteniiladenjeindtasesiiitinaines 6

2. An historical analysis of the Clause

demonstrates that its prohibition is ab-

i sicctincensintansininnsnninnicsisiaiainsiaimanninnsin 9

3. The overall structure of the Clause

proves that its prohibition is absolute... 11

4. The Equal Protection Clause abso-

lutely prohibits the District’s policy...... 12

ili

TABLE OF CONTENTS -— Continued

Page

II. GOVERNMENT RACE-BASED DISCRIMI-

NATION TO ACHIEVE “DIVERSITY” DOES

NOT SATISFY. THE COMPELLING GOV-

ERNMENT INTEREST PRONG OF THE

STRICT SCRUTINY TEST; THUS, THIS

COURT SHOULD OVERTURN GRUTTER

AND REVERSE THE NINTH CIRCUIT.......... 13

A. The District’s Plan Fails The Strict Scru-

SR IE suciesitnscrtsdeistinaitietdnapenitininiaennepiotionie 13

B. There Is No Government Interest In Race-

Sei cndnctintinnntiidinsintbitienecasdamisttentaivekeeveneniiapebnee 15

C. Race-Based Decisions By Government For

The Sake Of Diversity Are Never Compel-

Ft sisaiadiethiicesianttincdicitinidediinasbianiaaainidniinsiannisbidien 16

1. Though this Court ought to defer to

precedent, it must reject precedent

when there is a special justification to

Be i icceseniiceninteniniceciniieenatinnindniiedenintaine 19

2. Aspecial justification exists to overrule

PCT ccsitiinnsietiditeidhiaabhdeiieinintingnaltineaiasiits 20

iv

TABLE OF AUTHORITIES

Page

CASES

Adarand Constructors v. Perfia, 515 U.S. 200 (1995) ....passim

Agostini v. Felton, 521 U.S. 203 (1997) ...c.ccccessesesseessseeeeees 19

Albrecht v. Herald Co., 390 U.S. 145 (1968).................065. 19

Arizona v. Rumsey, 467 U.S. 203 (1984) ....... cc ceeceeeeeeeeeees 20

Booth v. Maryland, 482 U.S. 496 (1987) ..........:cccccceeeeeeees 19

Bowers v. Hardwick, 478 U.S. 186 (1986)................ccc0000 19

Brown v. Board of Ed. of Topeka, Shawnee County,

Kan., 347 U.S, 483 (1954).......ecceseeseeereneenens 9, 15, 16, 20

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393

GIUTED cibciiccnisdoninindiodiiedatintie <‘sisiisiosuennbiisieaninienasaliammumaiain 20

City of Boerne v. PF. Flores, 521 U.S. 507 (1997)............... 3

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

CIID <snnscinscscrnsncsssciizetessvibiniedsipiacicaniial 14, 15, 16, 17, 20

Dickerson v. United States, 530 U.S. 428 (2000) .............. 19

Dred Scott v. Sandford, 60 U.S. 393 (1857) ............cc:eseeeeees 4

Everson v. Board of Education of Ewing Tp., 330

SEED. 8 CIGD icccicsssinascstensccetsciiniiutinséiniipipeinaadiiemiiaibmiamian 9

Fullilove v. Klutznick, 448 U.S. 448 (1980)............. 8, 13, 16

Granholm v. Heald, 544 U.S. 460 (2005) 0.00... eeeeee 4

Gratz v. Bollinger, 539 U.S. 244 (2003) ..0.0... cee ecceeeeeeeeeeeee i

Grutter v. Bollinger, 539 U.S. 306 (2003) ................+. passim

Katz v. U.S., 389 U.S. 347 (1967).......:cccccssscecsseereesssererees 15

Lawrence v. Texas, 539 U.S. 558 (2003) .................2..0ee eee 19

TABLE OF AUTHORITIES — Continued

Page

Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304

aot ca erinemininemnmnananens 4

Metro Broadcasting, Inc. v. F-C.C., 497 U.S. 547

I eslennenenet 13, 15, 16, 17, 20

Minnesota v. Dickerson, 508 U.S. 366 (1993)................0006. 4

Myers v. United States, 272 U.S. 52 (1926)...........ccccccceeees 5

Olmstead v. United States, 277 U.S. 438 (1928)............... 15

Palmore v. Sidoti, 466 U.S. 429 (1984) ..............ccc cece 7

Parents Involved in Community Schools v. Seattle

School District, No. 1, 426 F.3d 1162 (9th Cir.

ith eiitiateintitalstinsiintepadesdeanniaeintemammanneneetnesenet passim

Payne v. Tennessee, 501 U.S. 808 (1991)... ccceeeeees 19

Plessy v. Ferguson, 163 U.S. 37 (1896)...........0..cccccecececeeees 15

South Carolina v. Gathers, 490 U.S. 805 (19839)............... 19

South Carolina v. U.S., 199 U.S. 437 (1905) ...............0 4

State Board of Equalization of California v. Young's

Marhet Co., 299 U.S. 59 (1996) .....................ccccccrescscceeees 3

State Oil Co. v. Khan, 522 U.S. 3 (1997)..............cccccceeeeeee 19

United States v. Morrison, 529 U.S. 598 (2000)................ 20

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

Ee 10

Wygant v. Jackson Board of Education, 476 U.S.

SEE 1

TABLE OF AUTHORITIES - Continued

Page

CONSTITUTIONAL PROVISIONS

Se ts MI Tir eiicsiecninniiintnesntniaanettinittitiddiaiietiianinniacaligs 11

ee passim

ee es IE TIUW ecsashrcioniecrascttnnntithiepdnenpsenisietibatetting ~ 11, 12

STATUTE

ae eA Be criscshncctnenentepenstiiannnsinctiinniniatmndandaditiad 10

RULES

Supreme Court Rule 37(2)(a) ............ccccecccceeeeerseeseeeeeseeeees 1

I SE SRD NED cecectctenensennsmcisnenntinmnmininnen 1

OTHER AUTHORITIES

Antonin Scalia, Originalism: The Lesser Evil, 57 U.

es ies Re ITE cocnersnsinnntticerntsinicenninicestsinniindiiillatemes 5

Clarence Thomas, Judging, 45 U. Kan. L. Rev. 1

SI icictsipseecchneatntticnasiionndiceseanisamiatmedindaninaniaaimainastanitetapibeinideies 5

Cong. Globe, 34th Cong., 3rd Sess. (1857)...........0.0seee0e 7

Cong. Globe, 39th Cong. Ist Sess. (1866) ............. 6, 7, 8, 10

David F. Forte, The Originalist Perspective, in The

Heritage Guide to the Constitution 15-16 (Edwin

(8, OU em 5

Declaration of Independence......................ccccccceceeeeeeeeeeeeees 15

Horace Edgar Flack, The Adoption of the Four-

teenth Amendment (1908, 1965).................cceeeeeee 7, 8, 10

James Madison, Memorial and Remonstrance

Against Religious Assessments (1785).................cc00ecee0es 9

vil

TABLE OF AUTHORITIES -— Continued

Jay P. Lechner, Learning From Experience: Why

Racial Diversity Cannot Be a Legally Compelling

Interest In Elementary and Secondary Education,

32 SW. U. L. Rev. 201 (2003) ...........scccccscessssssensereeees

Lawrence Schlam, Equity in Culture and Law: An

Introduction to the Origins and Evolution of the

Equal Protection Principle, 24 N. Ill. U. L. Rev.

a Ge crcss er ensrnnessnenanvinasestsstenmnvstemtingageerentane

Martin D. Carcieri, Democracy and Education in

the Thought of Jefferson and Madison, 26 J.L. &

BD, BGO Peceecescensasncesersoternpmsssanensnsssuasneseungentavects

Marvin H. Lett, Grutter, Gratz and Affirmative

Action: Why No ‘Original’ Thought?, 1 Stan. J.

Civ. Rts. & Civ. Liberties 417 (2005).............:cccceee

Melissa L. Saunders, Equal Protection, Class

Legislation, and Colorblindness, 96 Mich. L. Rev.

Se Ee Pen csctcceernnsesninsnsasinenensnannsemeninntnnpanmeiniies

William E. Nelson, The Fourteenth Amendment:

From Political Principle to Judicial Doctrine 60

(Harvard University Press 1988, 1995)...................

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1

AMICUS CURIAE BRIEF ON THE MERITS

OF MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Mountain States Legal Foundation (“MSLF”) respect-

fully submits this amicus curiae brief in support of Peti-

tioner. Pursuant to Supreme Court Rule 37(2)a), this

amicus curiae brief is filed with the written consent of all

the parties.’

¢

IDENTITY AND INTEREST OF AMICUS CURIAE

MSLF is a non-profit public interest legal foundation

organized under the laws of the State of Colorado. MSLF

is dedicated to bringing before the courts those issues vital

to the defense and preservation of private property rights,

individual liberties, limited and ethical government, and

the free enterprise system. MSLF’s members include

businesses and individuals who live and work in every

state in the country.

MSLF has challenged several laws and government

policies as violative of the Equal Protection Clause. Spe-

cifically, in the context of racial discrimination, MSLF has

litigated cases implicating the Equal Protection Clause,

such as Wygant v. Jackson Board of Education, 476 U.S.

* Counsel for Petitioner and Respondents filed universal consents

with the Court for the filing of amicus briefs in support of either party.

In compliance with Supreme Court Rule 37(6), MSLF represents that

no counsel for any party authored this brief in whole or in part and that

no person or entity, other than MSLF, its members, or its counsel made

a monetary contribution to the preparation or submission of this brief.

2

267 (1986), and Adarand Constructors v. Pefia, 515 U.S.

200 (1995).

*

OPINIONS BELOW AND JURISDICTION

Amicus hereby adopts Petitioner’s description of the

opinions below, jurisdiction, and statement of the case. See

Petition at 1-7.

¢

SUMMARY OF THE ARGUMENT

Each time Seattle School District, No. 1 (the “Dis-

trict”), uses its racial tiebreaker to select one student and

reject another on account of a student’s race, the District

engages in racial discrimination. Because the Equal

Protection Clause of the Fourteenth Amendment was

originally understood to absolutely prohibit the govern-

ment from discriminating on the basis of race, this Court

should reverse the decision of the Ninth Circuit.

Recently, however, this Court has strayed from the

original understanding of the Equal Protection Clause

and, instead, has permitted governments to engage in

racial discrimination whenever there is a “compelling

government interest” to do so. The District’s racial tie-

breaker, however, fails to meet the compelling government

interest test. Because the racial discrimination engaged in

by the District and permitted in Grutter v. Bollinger, 539

U.S. 306 (2003), is prohibited under the “strict scrutiny”

standard, this Court should overrule Grutter and reverse

the opinion of the Ninth Circuit.

¢

3

ARGUMENT

The Ninth Circuit, in Parents Involved in Community

Schools v. Seattle School District, No. 1, 426 F.3d 1162 (9th

Cir. 2005) (“Parents”), relied heavily upon Grutter, in

which this Court held that the Equal Protection Clause

does not prohibit consideration of race to foster educa-

tional diversity in a public law school. Grutter, 539 U.S. at

343; U.S. Const. amend. XIV, § 1. The question before this

Court is whether Grutter may be extrapolated to sanction

state-imposed racial discrimination for the purpose of

racial diversity in public high schools. A careful analysis of

the text of the Equal Protection Clause and this Court’s

jurisprudence of that Clause reveals that state-

implemented racial discrimination for the sake of racial

diversity violates the Equal Protection Clause of the

Fourteenth Amendment. As a result, this Court should

reverse the decision of the Ninth Circuit and overturn this

Court’s ruling in Grutter.

I. THE TEXT OF THE EQUAL PROTECTION

CLAUSE PROHIBITS THE DISTRICT FROM

ENGAGING IN RACIAL DISCRIMINATION TO

ACHIEVE RACIAL DIVERSITY.

A. Adherence To The Text Of The Constitution

Is The Most Intrinsicaily Sound Method Of

Constitutional Construction.

Interpreting the Constitution based on the original

understanding of the text is the most intrinsically sound

method of construction. See, e.g., City of Boerne v. PF.

Flores, 521 U.S. 507, 519 (1997) (“In assessing the breadth

of §5’s fof the Fourteenth Amendment] enforcement

power, we begin with its text.”); State Board of Equaliza-

tion of California v. Young’s Market Co., 299 U.S. 59, 63

4

(1936) (finding no need to discuss the history of the

Twenty-First Amendment, subsequent Court rulings

interpreting the amendment, or statutes passed in reli-

ance on the amendment because the language of the

amendment is clear). As Justice Curtis explained, “When a

strict interpretation of the Constitution, according to the

fixed rules which govern the interpretation of laws, is

abandoned, and the theoretical opinions of individuals are

allowed to control its meaning, we have no longer a Con-

stitution; we are under the government of individual men,

who for the time being have power to declare what the

Constitution is according to their own views of what it

ought to mean.” Dred Scott v. Sandford, 60 U.S. 393 (1857)

(Curtis, J., dissenting). Indeed, “the text of our Constitu-

tion is the best guide to its meaning.” Granholm v. Heald,

544 U.S. 460, 516 (2005) (Thomas, J., dissenting).

When interpreting the Constitution, “(t]he words are

to be taken in their natural and obvious sense, and not in

a sense unreasonably restricted or enlarged.” Martin v.

Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 326 (1816).

Specifically, “the terms in the Constitution must be given

the meaning ascribed to them at the time of their ratifica-

tion.” Minnesota v. Dickerson, 508 U.S. 366, 379 (1993)

(Scalia, J., concurring); see also South Carolina v. U.S.,

199 U.S. 437, 448 (1905) (“The Constitution is a written

instrument. As such its meaning does not alter. That

which it meant when adopted, it means now.”).’ To discern

* As Justice Thomas explained, the purpose of this method of

construction is threefold:

First, it deprives modern judges of the opportunity to write

their own preferences into the Constitution by tethering their

analysis to the understanding of those who drafted and rati-

fied the text. Second, it places the authority for creating legal

(Continued on following page)

5

the original understanding of the constitutional text, this

Court must examine the contemporaneous understanding

of the text, the historical perspective of the text, and the

overall structure of the document.’ Antonin Scalia,

Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989)

(in praise of Chief Justice Taft’s opinion in Myers v. United

States, 272 U.S. 52 (1926)); see also David F. Forte, The

Originalist Perspective, in The Heritage Guide to the

Constitution 15-16 (Edwin Meese III et al. eds., 2005)

(hereafter “Originalist Perspective”).

B. The Text Of The Equal Protection Clause

Absolutely Prohibits Racial Discrimination

By Government Actors. -

In holding that state-imposed racial discrimination is

constitutionally permissible, the Ninth Circuit neglected

to analyze the plain meaning of the text of the Equal

Protection Clause. See Parents, 426 F.3d 1162. Moreover,

in Grutter, the case primarily relied upon by the Ninth

Circuit, this Court also failed to address the plain meaning

of the text. Marvin H. Lett, Grutter, Gratz and Affirmative

rules in the hands of the people and their representatives

rather than in the hands of the nonelected, unaccountable

federal judiciary. Thus, the Constitution means not what

the Court says it means, but what the delegates of the

Philadelphia and of the state ratifying conventions under-

stood it to mean. Third, it recognizes the basic principle of a

written Constitution. We as a nation adopted a written Con-

stitution precisely because it has a fixed meaning that does

not change.

Clarence Thomas, Judging, 45 U. Kan. L. Rev. 1, 5 (1996).

* In fact, the Framers themselves applied similar interpretive

methods. David F. Forte, The Originalist Perspective, in The Heritage

Guide to the Constitution 15-16 (Edwin Meese III et al. eds., 2005).

6

Action: Why No ‘Original’ Thought?, 1 Stan. J. Civ. Rts. &

Civ. Liberties 417, 420 (2005). As Justice Thomas wrote,

the majority opinion in Grutter upheld racial discrimina-

tion “not by interpreting the people’s Constitution, but by

responding to a faddish slogan of the cognoscenti.” Grutter,

539 U.S. at 350 (Thomas, J., concurring in part and

dissenting in part).

Some have argued that the text of Section 1 of the

Fourteenth Amendment is ambiguous. See, e.g., Cong.

——~Globe, 39th Cong., Ist Sess. 2467 (1866) (Rep. Boyer);

- William E. Nelson, The Fourteenth Amendment: From

Political Principle to Judicial Doctrine 60 (Harvard Uni-

versity Press 1988, 1995). However, “the vagueness and

ambiguity of section one’s language and the failure of the

framing generation to settle how it would apply to a

variety of specific issues should not lead those who must

interpret the Fourteenth Amendment to conclude that the

section has no meaning.” Jd. at 61. Instead, much can be

learned — including the constitutionality of state-

mandated racial diversification — by carefully analyzing

the text under the lens of Justice Scalia’s aforementioned

interpretive method.

1. Contemporaneous understanding of the

Clause reveals that its prohibition is

absolute.

The Equal Protection Clause of the Fourteenth

Amendment provides: “No State shall ... deny any person

within its jurisdiction the equal protection of the laws.”

7

U.S. Const. amend. XIV, § 1.* “[A] core purpose of the

Fourteenth Amendment was to do away with all govern-

mentally imposed discrimination based on race.” Grutter

at 342 (citing Palmore v. Sidoti, 466 U.S. 429, 432 (1984)).

Clearly, the text includes no exceptions for compelling

government interests. Indeed, there is no indication that

its authors ever considered that certain extenuating

circumstances might necessitate the need for an exception

to the Clause. Instead, Rep. Bingham, the primary drafter

of the Equal Protection Clause, believed in “absolute

equality of all.” Cong. Globe, 34th Cong., 3rd Sess. app.

140 (1857). He explained that the Equal Protection Clause

should apply regardless of the circumstance. Cong. Globe,

39th Cong., lst Sess. 1094 (1866). Furthermore, Senator

Jacob Howard definitively explained to the Senate the

undoubted meaning of the Equal Protection Clause.’

* Though the Clause arguably protects people from all forms of

discrimination, it is evident that, at a minimum, the Clause prohibits

racial discrimination.

* Flack concluded:

The declaration of Mr. Howard in explaining the first sec-

tion of the Fourteenth Amendment could hardly have been

stated more clearly and squarely, and there could be no

doubt, it seems, as to its object and purpose. No one could

reasonably say, after reading or hearing his speech, that he

had been misled as to the purpose and effect of the Amend-

ment.... [The Fourteenth Amendment’s} purpose was

clearly and fairly set forth by Mr. Howard and others. His

interpretation of the Amendment was not questioned by any

one, and in view of his statement made at the beginning of

his speech, this interpretation must be accepted as that of

the Committee, since no member of the Committee gave a

different interpretation or questioned his statements in any

particular.

Horace Edgar Flack, The Adoption of the Fourteenth Amendment 87

(1908, 1965) (hereafter “Fourteenth Amendment”).

8

Flack, Fourteenth Amendment at 87. According to Howard,

the Clause “establishes equality before the law.” Cong.

Globe, 39th Cong., 1st Sess. 2766 (1866).

Whether other contemporaries interpreted the text as

an absolute prohibition against racial discrimination is

unclear. In the states’ ratification debates, legislators

rarely dissected the text of the Equal Protection Clause to

discern a meaning beyond that which is conveyed by the

words themselves.’ See, e.g., Flack, Fourteenth Amend-

ment, at 168-172, 204, 208. Likewise, the press did not

spend much time analyzing the Amendment’s text, but,

instead, primarily discussed the probability of its ratifica-

tion. Id. at 146.

More recently, however, Justice Stewart, in his expla-

nation of the manner in which the Equal Protection

Clause had been interpreted, wrote that “history contains

one clear lesson. Under our Constitution, the government

may never act to the detriment of a person solely because

of that person’s race.” Fullilove v. Klutznick, 448 U.S. 448,

525 (1980) (Stewart, J., dissenting) (emphasis added).

“Racial discrimination is by definition invidious discrimina-

tion,” id., and “[t]he equal protection standard of the Con-

stitution has one clear and central meaning: it absolutely

* The legislators of certain States, such as Vermont, Kansas,

Maine, Nevada and Kentucky, spent precious little time discussing the

amendment, and “[t}he first section [including the Equal Protection

Clause], the most important of all, was largely lost sight of” by the

state legislatures. Flack, Fourteenth Amendment at 168-172, 204, 208.

9

prohibits invidious discrimination by government.” Jd. at

523.

2. An historical analysis of the Clause

demonstrates that its prohibition is ab-

solute.

Although this Court has noted that the historical

underpinnings of the Equal Protection Clause are incon-

clusive with regard to the issue of race in public schools,

Brown v. Board of Ed. of Topeka, Shawnee County, Kan.,

347 U.S. 483, 489 (1954), the historical context in which

the Fourteenth Amendment was ratified provides some

insight into its interpretation.

The United States was “founded upon the doctrine of

equality. ...” Adarand, 515 U.S. at 227 (internal citations

omitted). Expounding upon this notion, “James Madison

expressed the prevailing sentiment of the founding gen-

eration” in his Memorial and Remonstrance Against

Religious Assessments. Melissa L. Saunders, Equal Protec-

tion, Class Legislation, and Colorblindness, 96 Mich. L.

Rev. 245, 256 (1997) (referencing James Madison, Memo-

rial and Remonstrance Against Religious Assessments

(1785) (reproduced in Appendix to Everson v. Board of

Education of Ewing Tp., 330 U.S. 1, 63-72 (1947))). Accord-

ing to Madison, a law should not subject some people to

“peculiar burdens,” or grant others “peculiar exemptions.”

Madison, supra, in Everson, 330 U.S. at 66. Thus, the law

should treat every person equally, regardless of his race or

ethnicity.

Following emancipation of the slaves and subsequent

“black codes” limiting the rights of freed slaves in the

South, the need for a federal law protecting the rights of

10

blacks became abundantly clear and caused Congress to

enact the Civil Rights Act of 1866. University of California

Regents v. Bakke, 438 U.S. 265, 390-391 (1978) (separate

opinion of Marshall, J.). Section 2 of the Civil Rights Act of

1866 explicitly prohibited discrimination on the basis of

prior condition of slavery, race, or color. 14 Stat. 27-30. The

Act was written in absolute terms; only one circumstance

was excluded from the Act, that is, discrimination against

certain convicted criminals. Jd. Pursuant to the canon of

construction expressio unius est exclusio alterius, it must

be inferred that no other circumstance justified discrimi-

nation.

However, the constitutional authority for such a bill

was dubious, causing Congress to “retroactively ratify the

1866 Act” through the Fourteenth Amendment. Lawrence

Schlam, Equity in Culture and Law: An Introduction to the

Origins and Evolution of the Equal Protection Principle, 24

N. Ill. U. L. Rev. 425, 433 (2004). To be sure, many mem-

bers of Congress, the press, and state legislators consid-

ered this the primary function of the Fourteenth

Amendment. See, e.g., Flack, Fourteenth Amendment at

153, 186; Cong. Globe, 39th Cong., 1st Sess. Appendix 133-

134 (Rep. Rogers); Cong. Globe, 39th Cong. 1st Sess. 1034

(Rep. Bingham). Logically, the Fourteenth Amendment,

which could be enforced by Congress pursuant to Section 5

of the Amendment, could only provide such constitutional

authority for the Civil Rights Act if Section 1 of the

Amendment itself provided equal or greater protections

than did the statute. Therefore, the Fourteenth Amend-

ment must, at a minimum, absolutely prohibit discrimina-

tion on the basis of race, color, or prior condition of

servitude, with the only possible exception being in the

instance of convicted criminals.

11

3. The overall structure of the Clause

proves that its prohibition is absolute.

Section 1 of the Fourteenth Amendment, when read in

its entirety, broadly protects individual liberties. The

Privileges or Immunities Clause provides that a state may

not pass a law that infringes on an individual’s fundamen-

tal rights; pursuant to the Equal Protection Clause, every

validly enacted state law must protect each individual

equally; and the Due Process Clause mandates that, if a

person violates a validly passed and equally enforced law,

the state may not deprive him of his life, liberty, or prop-

erty without the benefit of certain procedural] rights. U.S.

Const. amend. XIV, § 1. See, ¢.g., Nelson, The Fourteenth

Amendment: From Political Principle to Judicial Doctrine

at 57 (concluding that Section 1 of the Fourteenth

Amendment may have been designed to “guarantee that,

in regard to fundamental personal rights, state law would

be procedurally fair as well as substantively equal.”) It is

evident that Section 1 of the Fourteenth Amendment

protects individual liberties in the broadest possible sense

at every stage of state action. It may, therefore, be inferred

that the Equal Protection Clause broadly and absolutely

prohibits any discrimination on the basis of race.

This interpretation is buttressed further when the

Fourteenth Amendment itself is read in context. The

Fourteenth Amendment, along with the Thirteenth and

Fifteenth Amendments, are known collectively as the Civil

War Amendments because of the era in which they were

passed and the subjects contained therein. The Thirteenth

Amendment prohibited all slavery and indentured servi-

tude; there were no circumstances that could justify

slavery or indentured servitude. U.S. Const. amend. XIII.

Likewise, the Fifteenth Amendment guaranteed the right

12

to vote irrespective of race, color, or previous condition of

servitude; no circumstance could justify the denial of the

right to vote on account of those factors. U.S. Const.

amend. XV. Similarly, the Equal Protection Clause, when

read in its proper structural context, broadly requires that

states, in all circumstances, protect people equally.

4. The Equal Protection Clause absolutely

prohibits the District’s policy.

The original understanding of the Equal Protection

Clause, as discerned through the contemporaneous under-

standing of the text, the historical analysis of the text, and

the overall structure of the text, is that states absolutely

may not apply state law unequally to any person on

account of his race. Here, it is undisputed that certain

white students are selected over certain nonwhite stu-

dents, and vice versa, on account of the racial tiebreaker

used by the District. Respondents’ Brief in Opposition at 4-

5. The Equal Protection Clause, as it was originally

understood, absolutely prohibits this type of racial dis-

crimination; no circumstance may constitutionally justify

the unequal protection of the laws on account of an indi-

vidual’s race. Therefore, this Court should reverse the

decision of the Ninth Circuit.

13

Il. GOVERNMENT RACE-BASED DISCRIMINA-

TION TO ACHIEVE “DIVERSITY” DOES NOT

SATISFY THE COMPELLING GOVERNMENT

INTEREST PRONG OF THE STRICT SCRUTINY

TEST; THUS, THIS COURT MUST OVERRULE

GRUTTER AND REVERSE THE NINTH CIR-

CUIT.

A. The District’s Plan Fails The Strict Scru-

tiny Test.

Modern Equal Protection Clause jurisprudence

provides another basis to reverse the Ninth Circuit and, in

the process, overturn Grutter. In recent years, this Court

has deviated from the original understanding of the

Fourteenth Amendment. Under modern Equal Protection

Clause jurisprudence, not all racial classifications unitized

by government actors are inherently unconstitutional.

Instead, the classifications must be analyzed by a review-

ing court under “strict scrutiny.” Adarand, 515 U.S. at

227.’ This rigorous test is applied whenever the govern-

ment discriminates on the basis of race because racial

discrimination was the “central purpose” of the Fourteenth

Amendment. Id. To satisfy this test, government-imposed

racial discrimination must be “narrowly tailored to further

compelling government interests.” Grutter, 123 U.S. at

326; see also Adarand, 515 U.S. at 227. The burden is on

the government to prove that its discrimination satisfies

the strict scrutiny test. Jd. at 224.

’ In Fullilove v. Klutznick, 448 U.S. 448 (1980), and Metro Broad-

casting, Inc. v. FC.C., 497 U.S. 547 (1990), this Court applied a more

lenient standard to determine the constitutionality of racial discrimina-

tion by the federal government. In overruling these decisions, this

Court in Adarand adopted a more stringent “strict scrutiny” standard

for both the state and federal governments. Adarand, 515 U.S. at 227.

14

Because it is impossible to determine which classifica-

tions are benign or remedial, this Court applies strict

scrutiny to all racial classifications “to smoke out’ illegiti-

mate uses of race by assuring that the [state] is pursuing a

goal important enough to warrant use of a highly suspect

tool.” Adarand, 515 U.S. at 226 (quoting City of Richmond

v. J.A. Croson Co., 488 U.S. 469, 493 (1989)). In so doing,

the Court analyzes discrimination on a personal, rather

than on a group basis. Adarand, 515 U.S. at 227. There-

fore, all classifications that are based on an individual’s

race, including those used by the District, are, at a mini-

mum, subject to strict scrutiny. Moreover, the District has

the burden of proving that its admissions plan satisfies

this test.

In upholding the District’s admission plan, the Ninth

Circuit, relying on this Court’s ruling in Grutter, set forth

four primary benefits of the District’s plan. First, the

Ninth Circuit concluded that racial diversity in public

schools enhances students’ critical thinking skills. Parents,

426 F.3d at 1174. Second, it determined that racial diver-

sity improves socialization, citizenship, and cross-racial

understanding. Jd. at 1174-1175. Third, it concluded that

racial diversity increases a student’s interracial network of

friends. Jd. Finally, it held that racially concentrated

schools tend to provide inferior education. Jd. at 1177.

The Ninth Circuit’s holding is fatally flawed, as is the

decision of this Court in Grutter, first, because racial

discrimination by government actors to achieve “diversity”

is not a “governmental interest,” and, second, because the

injuries inflicted by race-based decision making by gov-

ernment actors to achieve “diversity,” that is, the burdens

imposed upon innocent citizens, in this case high school

15

students, overwhelm the putative and purported benefits

of what is little more than state-sponsored racism and

render the reputed reasons for that racism far from

“compelling.”

B. There Is No Government Interest In Race-

Based Decision Making To Achieve Diver-

sity.

To be considered a “government interest,” there,

logically, must be some legitimate basis underlying a

government action. Yet, in the context of racial diversity,

the alleged interest “is simply too amorphous, too insub-

stantial, and too unrelated to any legitimate basis for

employing racial classification.” Metro Broadcasting, Inc.

v. FC.C., 497 U.S. 547, 612 (1990) (overruled by Adarand)

(O’Connor, J., dissenting). Because the Ninth Circuit, and

this Court in Grutter, relied upon these amorphous and

insubstantial “interests,” this Court should reverse the

decision of the Ninth Circuit and overturn Grutter

Justice Brandeis once declared that “Our government

is the potent, the omnipresent teacher. For good or for ill,

it teaches the whole people by its example.” Olmstead v.

United States, 277 U.S. 438, 468 (1928) (Brandeis, J.,

dissenting) (overruled on other grounds, Katz v. U.S., 389

U.S. 347 (1967)). Historically, from the Declaration of

Independence, through the Constitution, the Civil War

Amendments, Justice Harlan’s dissent in Plessy v. Fergu-

son, 163 U.S. 37 (1896), Brown, the 1964 Civil Rights Act,

Croson, and Adarand, the lesson taught by this Republic

has been that, “[i]Jn the eyes of the government, we are just

one race here. It is American.” Adarand, 515 U.S. at 241

(Scalia, J., concurring). Thus, over the course of its history,

this Nation has repudiated any “interest” in judging its

16

citizens based upon whatever racial classification may

apply to them.

That is true regardless of “whatever federal, state, or

local government actor” seeks to use “racial classifica-

tions,” Adarand, 515 U.S. at 227, to “act to the detriment

of a person solely because of that person’s race,” Fullilove,

448 U.S. at 525 (Stewart, J., dissenting), but it is most

especially true with regard to state and local governments

and has been true since this Court’s ruling in Brown, and,

if not Brown, then certainly Croson.

C. Race-Based Decisions By Government For

The Sake Of Diversity Are Never Compel-

ling.

The Ninth Circuit and this Court in Grutter ignored

both the adverse impact of race-based decision making by

government actors purportedly in pursuit of diversity and

the conflict of such decision making with the essence of

America’s constitutional system of government. Parents,

426 F.3d at 1174-1179; Grutter, 539 U.S. at 327-333.

Examining both demonstrates that state-sponsored racism

to achieve diversity is not “compelling.”

First, discrimination on the basis of race emphasizes

racial differences amongst individuals, rather than simi-

larities. Thus, while racial diversity in schools may help

break down racial stereotypes, Parents, 426 F.3d at 1176;

Grutter, 539 U.S. at 330, discrimination to achieve this

end counteracts the alleged benefit. “The dangers of such

classifications are clear. They endorse race-based reason-

ing and the conception of a Nation divided into racial

blocks, thus contributing to an escalation of racial hostility

and conflict.” Metro Broadcasting, 497 U.S. at 603

17

(O’Connor, J., dissenting) (citing Croson, 488 U.S. at 493-

494). Indeed, “every time the government places citizens

on racial registers and makes race relevant to the provi-

sion of burdens or benefits, it demeans us all.” Grutter, 539

U.S. at 353 (Thomas, J., concurring in part and dissenting

in part).

Second, racial discrimination “provoke[s] resentment

among those who believe that they have been wronged by

the government’s use of race.” Adarand, 515 U.S. at 241

(Thomas, J., concurring). It makes no difference whether,

on average, white students are denied admission on

account of their race about as often as are nonwhite

students; each individual student denied admission to a

high school on account of his race — not to mention that

student’s parents and friends - will suffer resentment

toward the “preferred” race. This undermines the alleged

benefits of cross-racial understanding. Parents, 426 F.3d at

1175; Grutter, 539 U.S. at 330. Moreover, “(glovernment

cannot make us equal; it can only recognize, respect, and

protect us as equal before the law.” Adarand, 515 U.S. at

240 (Thomas, J. concurring).

Third, an individual is demeaned when government

actors presuppose his beliefs mirror those of a particular

racial group stereotype. Thus, when the District seeks the

“different viewpoints and experiences” that it assumes will

result from selecting students on the basis of their race,

Parents, 426 F.3d at 1174, it assumes that “members of the

defined racial groups ascribe to certain ‘minority views’

that must be different from those of other citizens” and

thereby “demean[s]” those students and does precisely

what the Constitution prohibits. Metro Broadcasting, 497

U.S. at 602 (Kennedy, J., dissenting). Further, rather than

giving students the opportunity to “understand and

18

challenge views which are different from their own,”

Parents, 426 F.3d. at 1174, “governmental use of ‘race’ as a

label ... compels citizens to think in terms of those labels

and assign themselves and others into predetermined

boxes.” Jay P. Lechner, Learning From Experience: Why

Racial Diversity Cannot Be a Legally Compelling Interest

In Elementary and Secondary Education, 32 SW. U. L.

Rev. 201, 229 (2003).

Fourth, although some students may benefit educa-

tionally from racial diversity, Parents, 426 F.3d at 1174;

Grutter, 539 U.S. at 328-333, others may suffer as a direct

result of it. See id. at 364-365 (Thomas, J., concurring in

part and dissenting in part). Thus, government-imposed

racial discrimination creates new challenges for those who

learn better in a homogeneous learning environment.

Fifth, and finally, the District’s racial discrimination

undermines the very principles upon which the Nation

was founded. “[T]he American revolution was fought over

individual liberty, not democracy.” Martin D. Carcieri,

Democracy and Education in the Thought of Jefferson and

Madison, 26 J.L. & Educ. 1, 6 (1997). Liberty was seen by

John Adams, Thomas Jefferson, and James Madison as

the end sought, while democratic institutions merely

served as a necessary evil to protect that liberty. Jd. at 6,

18. Nonetheless, the District justifies racial discrimina-

tion, a distinct infringement upon individual liberties, by

arguing that the discrimination encourages students to

think “democratically.” Parents, 426 F.3d at 1175. Thus,

the District’s policy allegedly supports the means to

protect liberty at the expense of liberty itself.

A compelling government interest exists “only [by] a

social emergency rising to the level of imminent danger to

19

life and limb.” Croson, 488 U.S. at 521 (Scalia, J., concur-

ring). The Ninth Circuit’s ruling in Parents, relying on

Grutter, fails to meet that test.

D. Grutter Should Be Overruled.

1. Though this Court ought to defer to

precedent, it must reject precedent when

there is a special justification to do so.

“The doctrine of stare decisis is essential to the respect

accorded to the judgments of this Court and to the stabil-

ity of the law,” Lawrence v. Texas, 539 U.S. 558, 577 (2003)

(wherein the Court expressly overruled Bowers v. Hard-

wick, 478 U.S. 186 (1986)); however, that doctrine is “not

an inexorable command, particularly when ... interpret-

ing the Constitution.” Dickerson v. United States, 530 U.S.

428, 443 (2000) (quoting State Oil Co. v. Khan, 522 U.S. 3,

20 (1997) (expressly overruling Albrecht v. Herald Co., 390

U.S. 145 (1968)); Agostini v. Felton, 521 U.S. 203, 235

(1997) (abandoning a strict application of stare decisis).

Instead, it is a mere “principle of policy.” Lawrence, 539

U.S. at 577. Therefore, “[iJn prior cases, when this Court

has confronted wrongly decided, unworkable precedent

calling for some further action by the Court, [the Court

has] chosen not to compound the original error, but to

overrule the precedent.” Payne v. Tennessee, 501 U.S. 808,

842-43 (1991) (Souter, J., concurring) (wherein the Court

partially overruled Booth v. Maryland, 482 U.S. 496

(1987), and South Carolina v. Gathers, 490 U.S. 805

(1989)). This is particularly true when the precedent

being overruled is not well established. Adarand, 515

U.S. at 233-34 (explaining that abandoning stare decisis

has more severe ramifications when overruling well-

established precedent that has engendered substantial

—

20

societal reliance); United States v. Morrison, 529 U.S. 598,

622 (2000) (concluding that the force of the doctrine of

stare decisis stems, in part, from the length of the time the

precedent has been on the books).

Reconsideration of earlier decisions is especially

important in constitutional cases because in such cases

“correction through legislative action is practically impos-

sible.” Payne, 501 U.S. at 828 (citing Burnet v. Coronado

Oil & Gas Co., 285 U.S. 393, 407 (1932) (Brandeis, J.,

dissenting)). Ultimately, recent Equal Protection Clause

jurisprudence should be overruled if there is a “special

justification” for doing so. Adarand, 515 U.S. at 231

(quoting Arizona v. Rumsey, 467 U.S. 203, 212 (1984)).

2. A-special justification exists to overrule

Grutter.

In Grutter, the Court concluded that a law school “has

a compelling interest in attaining a diverse student body.”

Grutter, 539 U.S. at 328. However, in its compelling

interest discussion, the Court ignored the original under-

standing of the Equal Protection Clause and its absolute

bar against race-based decision making by governments,

ignored the fundamental principles upon which this

Nation was founded, prime among them a guarantee that

“all men are created equal,” and never analyzed the harm

done when government actors engage in racial discrimina-

tion. Moreover, the decision ignored this Court’s Equal

Protection Clause jurisprudence, which is reflected in the

holdings of this Court in Brown, Croson, and Adarand.

Specifically, in Adarand this Court noted that, in ruling

in Metro, this Court departed from that jurisprudence.

21

Adarand, 515 U.S. at 219-227. Grutter represents a

similar departure and must be overturned.

+

CONCLUSION

This Court should reverse the decision of the Ninth

Circuit and overturn Grutter.

Dated August 21, 2006

Respectfully submitted:

WILLIAM PERRY PENDLEY*

*Counsel of Record

JOEL M. SPECTOR

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorneys for Amicus Curiae

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