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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2007
- **Citation:** 551 U.S. 701

## Text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0238%3A50. Public record. Not legal advice.