Amicus Curiae Brief — Fisher v. Univ. of Tex. At Austin, 135 S. Ct. 2888 (2015) (No. 14-981)

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IN THE

Supreme Court of the Anited States

ABIGAIL NOEL FISHER,

Petitioner,

Vv.

UNIVERSITY OF TEXAS AT AUSTIN, et ai.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE AMERICAN

ASSOCIATION FOR ACCESS, EQUITY

AND DIVERSITY AND EIGHT OTHER

ORGANIZATIONS AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

DEAN SPARLIN* JOSEPH D. WEINER

SPARLIN LAW OFFICE,PLLC Counsel of Record

4400 Fair Lakes Court, MICHAEL L. CHILDERS*

Suite 106 EMILY A. MCNEE*

Fairfax, VA 22033 LITTLER MENDELSON P.C.

(703) 803-8800 80 South 8th Street

dsparlin@sparliniaw.com Suite 1300

Minneapolis, MN 55402

en =«6er ae

ACTION PRACTICE jweiner@littler.com

1629 K Street NW MATTHEW J. CAMARDELLA*

Suite 300 JACKSON LEWIS P.C.

Washington, DC 20006 58 South Service Road

(202) 349-1699 Suite 250

schuyler@schuyleraap.com Melville, NY 11747

(631) 247-4369

*Of Counsel camardem®@jacksonlewis.com

IESE OATES RY ti TS TE TR SL. ASSEN LETT =

WILSON-EPES PRINTING Co. Inc. — (202) 789-0096 — WASHINGTON.D C 20002

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................c00000

IDENTITY AND INTEREST OF

I. PETITIONER LACKS STANDING

Il.

BECAUSE SHE HAS SUFFERED NO

INJURY AND THE ISSUE BEFORE

ee Ae

A. Petitioner Did Not Suffer an Injury ...

1. Petitioner Has Failed to Show

a Concrete, Particularized Harm

Stemming from UT-Austin’s

Decision to Deny Her Admission....

2. Petitioner Cannot Pursue a Claim

on Behalf of Other Similarly-

Situated Individuals ......................

3. Petitioner Has Not Suffered a

Constitutional Harm ......................

EEL TES Ce

THE COURT SHOULD ANALYZE

BENIGN AND INVIDIOUS CLASSI-

FICATIONS DIFFERENTLY CON-

SISTENT WITH ITS PAST PRACTICE

AND THE PURPOSE OF THE EQUAL

PROTECTION CLAUSE. ...............:::ccec00

(i)

‘i

TABLE OF CONTENTS—Continued

Page

A. The History of the Fourteenth

Amendment Supports a Distinction

Between Benign and Invidious Use of

A ae OC nC 10

1. The Fourteenth Amendment Was

Intended to Eliminate Discrimina-

tion Against African Americans..... 10

2. Use of the Equal Protection Clause

to Target Invidious Discrimination . 11

B. The Court Can Appropriately Analyze

Benign Classifications Differently

from Invidious Classifications Using a

Spectrum Approach..........................0+ 14

1. Benign Classifications Are Distin-

guishable from Invidious Ones ...... 14

a. Historically, the Supreme Court

Distinguished Benign and

Invidious Classifications .......... 14

b. Legitimate Concerns Arise

When Applying Strict Scrutiny

to Benign Race- Based

iia eed iacienaas 17

2. Courts Can Maintain Consistency

While Analyzing the Purpose and

Motives of Benign Classifications

Using an Intermediate Level of

IT uincccucctantahinnaiiunssehentniienseinne 19

a. Applying a Spectrum Test

Allows for Consistency.............. 20

ill

TABLE OF CONTENTS—Continued

b. Consistency across’ Benign

Race and Gender Programs Is

REISE aero

C. The Court Has Modified’ the

Expressed Level of Scrutiny Based

on Its Valuation of the State’s

Interest Consistent with the

Spectrum Approach. ........................0000-

D. Properly Valuing the State’s Interest

Better Explains the Court’s Decisions

in Equal Protection Cases...................

Ill. THE HOLISTIC CONSIDERATION OF

RACE, WHICH ONLY PARTIALLY

MODERATES THE ADVERSE IMPACT

OF TEST SCORES ON MINORITIES, IS

NOT AN IMPERMISSIBLE “RACIAL

I eiciinitidihiciimiiadisnvsoiesicinnbommens

A. College Admission Tests Have

Serious Adverse Impact on Minority

I iciaticiiiciimnnioedinmniatenntinminsisten

B. Holistic Consideration of Race Is

Essential to Mitigate the Racial Bias

C. Removal of Race from the Admissions

Process Will Not Result in Racial

TABLE OF AUTHORITIES

CASES Page(s)

Adarand Constructors, Inc. v. Pena,

TE TS OE passim

Arena v. Graybar Elec. Co., Inc.,

669 F.3d 214 (5th Cir. 2012)........................ 4

Arizonans for Official English v. Arizona,

I ses cncsinnionenes 8

Brown v. Board of Educ. of Topeka,

Te ce 16

Burns v. State,

I il ecciceeeial 11

Bush v. Kentucky,

I a eset 12

Castaneda v. Partida,

iowa 32

City of Cleburne v. Cleburne Living

Center, Inc.,

ee I diiiccccnitccniccmvecesoseneenon 24, 25, 28

Dukes v. Wal-Mart Stores, Inc.,

222 F.R.D. 137 (N.D. Cal. 2004), aff'd,

474 F.3d 1214 (9th Cir. 2007), rev'd on

other grounds, 113 S. Ct. 2541 (2001) ......... 31-32

Fisher v. Univ. of Texas,

758 F.3d 633 (5th Cir. 2014) ...........0..0000000... 6,9

Fla. Chapter of the Associated Gen.

Contractors of Am. v. City of Jacksonville,

Kk eee 7

Fullilove v. Klutznick,

I a eesti 14, 35

TABLE OF AUTHORITIES—Continued

Page(s)

Gratz v. Bollinger,

ee Rh SED éccteninoctecnsoceacenssesisiionmeniad 17, 18

Griggs v. Duke Power Co.,

ee ee OE veniciccacscctiuntcecitcctnadiinniaes 32

Grupo Dataflux v. Atlas Global Grp., L.P..,

ff Rk 5 SE eee 4

Grutter v. Bollinger,

539 U.S. 306 (2003) ................cececcesceseeseeseees passim

Hamer v. City of Atlanta,

872 F.2d 1521 (11th Cir. 1989) .................... 32

Johnson v. California,

543 U.S. 499 (2005) ................ccccccssseeseeeeeeeses 17, 18

Loving v. Virginia,

DR ene 14

Lujan v. Defenders of Wildlife,

I veicciinisierieeecsesticiiecesantueumaiaamnas 5

Metro Broadcasting, Inc. v. FCC,

Ge Ss ee Se Po vvicetnvstnadvekntinigsenamesanatens 14

Neal v. Delaware,

I es I cicnceisntncesvninsaiiinmnetiin 12

Regents of Univ. of Cal. v. Bakke,

SF es Se OEE csccecnvitiviniiincteiniciininimaniianl 16, 32

Renne v. Geary,

ee Re IED crcsceserncsisecsertnorensenneilicbeiahaniadana 8

Richmond v. J.A. Croson Co.,

2,2 Ff | —_ Fare passim

TABLE OF AUTHORITIES—Continued

Page(s)

Romer v. Evans,

amines 25, 26

Snowden v. Hughes,

a 19

Strauder v. West Virginia,

Neen ccecmenemnnens 11,12

Texas v. Lesage,

a 8

Tigner v. Texas,

trans 19

United Jewish Organizations of

Williamsburgh, Inc., v. Carey,

I cceesseesens 15

Valley Forge Christian Coll. v. Americans

United For Separation of Church & State,

Inc., 454 U.S. 464 (1982) ...........0.... ee. 5

Vill. of Arlington Heights v. Metrop. Hous.

Dev. Corp.,

a 15, 16

Warth v. Seldin,

a 6,7

Washington v. Davis,

a 15, 16

Yick Wo v. Hopkins,

Ee 15

CONSTITUTION

Ee 5,6

vii

TABLE OF AUTHORITIES—Continued

Page(s)

8 Rf eee passim

U.S. CONST., amend. XIV, § 1 ...................0000.. passim

STATUTES

NN iat nadall 2

Act of July 25, 1868, ch. 245, 15 Stat. 193...... 13

OTHER AUTHORITIES

ACT, Predicting Long-Term College Success

Through Degree Completion Using ACT

Composite Score, ACT Benchmarks, and

High School Grade Point Average (2012) .... 33-34

Adam Chandler, JLegal Scholarship

Highlight: The Trouble with Fisher,

SCOTUSblog (Sept. 6, 2012, 5:41 PM),

http//www.scotusblog.com/2012/09/legal-

scholarship-highlight-the-trouble-with-

SEIT iicthdetrenineindtiinnseeniadientumscanatadintisisetaninicien 9

An Open Discussion With Justice Ruth Bader

Ginsburg, 36 Conn. L. Rev. 1033 (2004)...... 26

A.P. Ellis & A.M. Ryan, Race and Cognitive-

Ability Test Performance: The Mediating

Effects of Test Preparation, Test-Taking

Strategy Use and Self-Efficacy, 33 J.

Applied Soc. Psych. 2607 (2003) .................. 40

Brian C. Eades, Note, Affirmative Action: The

United States Supreme Court Goes Color-

Blind: Adarand Constructors, Inc. v. Pena,

29 Creighton L. Rev. 771 (1996) .................. 20

TABLE OF AUTHORITIES—Continued

Page(s)

Charles A. Scherbaum et al., Examining the

Effects of Stereotype Threat on Test-Taking

Behaviors, 14 Soc. Psychol. Ed. 361 (2011). 40

13 Charles Alan Wright, et al., Fed. Practice

& Procedure (3d ed. 2008)......................00.... 4

College Board, 2008 College-Bound Seniors

otal Group Profile Report (2008) ............... 31, 33

College Board, Validity of the SAT for

Predicting First-Year College Grade Point

Average, Research Report No. 2008-5

SI iaiiiciciaecipia deena ieialal aaa saebiahiatiaiuadile 33, 34

Cong. Globe, 42d Cong., Ist Sess. app. 68

REET Resin eres Nee Sane em Ee 11

Eric Schnapper, Affirmative Action and the

Legislative History of the Fourteenth

Amendment, 71 Va. L. Rev. 753 (1985) ....... 13

Frank S. Ravitch, Creating Chaos In The

Name Of Consistency: Affirmative Action

And The Odd Legacy Of Adarand

Constructors, Inc. v. Pena, 101 Dick. L.

SEER ER aee eer lee eee 22

Goodwin Liu, The Myth and the Math of

Affirmative Action, Wash. Post, Apr. 14,

2001, available at http://diversity.umich.

edu/admissions/statementa/liu.html............ 7,8

H.R. Exec. Doc. No. 11, 39th Cong., Ist Sess.

oe ES REI FREE E SEI SEMI Se AiR NER on 13

TABLE OF AUTHORITIES—Continued

Page(s)

Paul Brest et al., Processes of Constitutional

Decisionmaking (2006) .............cccccccceseeeeeeeees 10

Roy. O. Freedle, Correcting the SAT’s Ethnic

and Social-Class Bias: A Method for

Reestimating SAT Scores, 73 Harvard Ed.

GS RAE Ee ne RES PSAP Seem 40

U.S. Bureau of Refugees, Freedmen and

Abandoned Lands, Sixth Semi-Annual

Report on Schools for Freedmen (July 1,

SEE a ie een ane Denis cee ae ee 13

William Nelson, The Fourteenth Amendment:

From Political Principle to Judicial

EER Rn 2 La a ee oe 10-11

IDENTITY AND INTEREST OF AMICI CURIAE

The American Association for Access, Equity and

Diversity (“AAAED”), California Hispanic Chambers

of Commerce (“CHCC”), Feeding and Teaching

Organization of Los Angeles (“Feeding and Teaching”),

Fund for Leadership, Equity, Access and Diversity

(“LEAD Fund”), California Leadership Institute

(“CLI”), National Association for Diversity Officers in

Higher Education (“NADOHE”), National Organization

for Women Foundation (“NOW Foundation”), TODOS

UNIDOS, Inc., and Transgender Legal Defense &

Education Fund (“TLDEF”) respectfully submit this

brief amici curiae in support of the Respondent

University of Texas at Austin (“UT-Austin”).'

AAAED, founded in 1974 as the American

Association for Affirmative Action, is a national non-

profit organization of approximately 1,000 practicing

professionals and institutions. Nearly one-half of

AAAED members, who manage affirmative action,

equal opportunity, diversity, and other human re-

sources programs, work for colleges and universities.

CHCC, representing the interests of over 700,000

Hispanic owned businesses in California, recognizes

the importance of affirmative action in academic

admissions to the diverse business and education

communities, and its impact on procurement, which is

so essential to economic growth.

' Pursuant to Supreme Court Rule 37.6, counsel for amici

certify that no counsel for any party authored this brief in whole

or in part and that no person or entity other than amici made a

monetary contribution intended to fund the brief’s preparation or

submission. Letters from the parties consenting to the filing of

this amici brief have been filed with the Court.

Feeding and Teaching is dedicated to alleviating

hunger and providing skills to the needy, developing

programs to increase awareness of the hunger

problem, and providing an opportunity for

volunteerism and community involvement.

The LEAD Fund was established as a 501(c\3)

charitable organization to provide thought leadership

in promoting inclusive organizations and institutions

through research and education on issues related to

diversity, social responsibility, human, and civil

rights.

CLI is a non-partisan and non-profit organization

dedicated to educating current and future leaders and

building a catalyst for change.

NADOHE serves as the preeminent voice for

diversity officers in higher education, producing and

disseminating empirical evidence to support diversity

initiatives, identifying and circulating exemplary

practices, providing professional development for

current and aspiring diversity officers, informing and

influencing national and local policies, and creating

and fostering networking opportunities.

NOW Foundation, a 501(c\3) organization devoted

to furthering women’s rights through litigation and

education, has as a primary objective assuring access

to all aspects of education for women and girls,

including equal access for women and girls of color.

TODOS UNIDOS is a 501(c)\3) nonprofit

corporation founded in 2004 providing programs and

services in the areas of education, health, social,

cultural and economic development, and serves

thousands of Latinos and others in California.

TLDEF is a nonprofit law firm committed to ending

discrimination in employment, education, and access

to health care based upon gender identity and

expression, and to achieving equality for transgender

people through public ed ication, test-case litigation,

direct legal services, and put.ic policy efforts.

Given their missions and membership composition,

Amici are uniquely suited to opine on ithe importance

of both (1) the need for diversity on campus to ensure

that students receive the best possible education and

graduate with the skills and experiences necessary to

succeed as citizens, workers, and leaders, and (2) the

need for diversity on campus to employers who, to

remain competitive, must hire qualified workers

reflecting the increasingly diverse communities and

markets in which their businesses operate.

SUMMARY OF ARGUMENT

Following remand by this Court, the Fifth Circuit

concluded UT-Austin’s limited consideration of race in

admissions to further holistic diversity satisfied a

strict scrutiny inquiry. Unhappy with that decision,

Petitioner again seeks to bar consideration of race by

UT-Austin (or any other institution of higher

education) asserting that, in essence, the use of race

can never satisfy strict scrutiny. Petitioner asks the

Court to endorse a standard of review strict in theory,

but fatal in fact.

Amici support the Fifth Circuit decision and submit

this brief to further elaborate on three issues. First,

Petitioner lacks standing bocause she can make no

show'ng of an injury and the issue at the heart of her

case is moot. Second, even if Petitioner has standing,

the Court should rule in favor of Respondent because

(1) UT-Austin’s admissions program satisfies the

requirements historically associated with the level of

scrutiny applied by the Court to benign classifications,

and (2) since holistic consideration of race only

partially moderates the adverse impact of test scores,

it does not constitute an impermissible “racial

preference.”

ARGUMENT

I. PETITIONER LACKS STANDING

BECAUSE SHE HAS SUFFERED NO

INJURY AND THE ISSUE BEFORE THE

COURT IS MOOT.

Jurisdiction must exist at every stage of litigation.

A party “may raise a court’s lack of subject-matter

jurisdiction at any time in the same civil action, even

initially at the highest appellate instance.” Grupo

Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 576

(2004) (citations omitted). The fact that “defendant/]

failed to challenge jurisdiction at a prior stage of the

litigation, . . .” does not preclude it from raising it later.

Arena v. Graybar Elec. Co., Inc., 669 F.3d 214, 223 (5th

Cir. 2012). The “independent establishment of

subject-matter jurisdiction is so important that [even]

a party ostensibly invoking federal jurisdiction may

later challenge it as a means of avoiding adverse

results on the merits.” Jd. (quoting 13 Charles Alan

Wright, et al., Fed. Practice & Procedure § 3522 at

122-23 (3d ed. 2008)).

A. Petitioner Did Not Suffer an Injury.

1. Petitioner Has Failed to Show a Concrete,

Particularized Harm Stemming from

UT-Austin’s Decision to Deny Her

Admission.

To have Article [II standing, Petitioner must have

suffered (1) a concrete, particularized “injury in fact”

(2) that bears a causal connection to the alleged

misconduct, and (3) that a favorable court decision is

likely to redress. Valley Forge Christian Coll. v.

Americans United For Separation of Church & State,

Inc., 454 U.S. 464, 471 (1982) (citations omitted). The

“injury in fact” — an invasion of a legally-protected

interest must be (1) concrete and particularized

(injury must affect the plaintiff in a personal and

individual way); and (2) “actual or imminent’, not

‘conjectural’ or ‘hypothetical.” Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560-61 (1992) (citations and

footnote omitted). Further, a plaintiff must make a

factual showing of perceptible harm. Id. at 566.

While UT-Austin denied Petitioner admission to its

undergraduate program,’ Petitioner has not provided

evidence of a causal connection to the holistic review

employed by UT-Austin and her rejection. In fact,

absent consideration of race, Petitioner would not

have been admitted to UT-Austin:

® Petitioner may claim other possible harms resulting from

Respondent's action, such as fewer or less prestigious

employment or economic opportunities, but those speculative

claims suffer from the same shortcoming as her principal claim

of harm—denial of admission to UT-Austin. No causal connection

exists between Petitioner's rejection and UT-Austin’s race-

conscious admission program.

Fisher’s AI scores were too low for admission

to her preferred academic programs at UT

Austin; Fisher had a Liberal Arts AI of 3.1

and a Business AI of 3.1. And, because nearly

all the seats in the undeclared major program

in Liberal Arts were filled with Top Ten

Percent students, all holistic review

applicants “were only eligible for Summer

Freshman Class or [Coordinated Admissions

Program] admission, unless their AI exceeded

3.5.” Accordingly, even if she had received a

perfect PAI score of 6, she could not have

received an offer of admission to the Fall 2008

freshman class. If she had been a minority

the result would have been the same.

Fisher v. Univ. of Texas, 758 F.3d 633, 638-39 (5th Cir.

2014). Because UT-Austin rejected Petitioner's

application based on her academic record, Petitioner

cannot establish any causal link between that decision

and UT-Austin’s race-conscious admissions program.

2. Petitioner Cannot Pursue a Claim on

Behalf of Other Similarly-Situated

Individuals.

Article III judicial power exists “only to redress or

otherwise protect against injury to the complaining

party, even though the court’s judgment may benefit

others collaterally.” Warth v. Seldin, 422 U.S. 490,

498-99 (1975). To claim an “injury,” plaintiff must

have suffered “some threatened or actual injury

resulting from the putatively illegal action.” Id.

However, UT-Austin denied Petitioner admission

because of her academic record. Assuming arguendo

that other candidates for admission at UT-Austin

suffered the type of harm claimed by Petitioner, she

may not “cloak” herself in their injury since it is not

enough to allege an injury that has been suffered by

other, unidentified members of the class to which she

belongs and purports to represent. Jd. at 502.

3. Petitioner Has Not Suffered a Constitutional

Harm.

Petitioner has an “injury in fact” when she can

establish the “inability to compete on an equal

footing.” Ne. Fla. Chapter of the Associated Gen.

Contractors of Am. v. City of Jacksonville, 508 U.S. 666

(1993). Further, it is not necessary to prove that the

benefit would have flowed, absent the consideration of

race, as the existence of a barrier to compete equally

is the violation. Adarand Constructors, Inc. v. Pena,

515 U.S. 200, 211 (1995). In both cases, the Supreme

Court ruled the plaintiffs were denied an opportunity

to compete equally, because the imposition of the

barrier, not the ultimate inability to obtain a benefit,

established the “injury in fact.” Id.; City of

Jacksonville, 508 U.S. at 666.

Unlike those cases, UT-Austin did not consider

Petitioner’s race. Throughout UT-Austin’s evaluation

of her personal application, there was no denial of an

opportunity to compete equally and, consequently, no

potential for constitutional harm.

Even if Petitioner could establish that she faced a

barrier in her opportunity to compete, she fails to

prove a Constitutional harm because consideration of

race likely would not have impacted the admissions

outcome in any statistically significant way. While

affirmative action programs give minority applicants

a significant boost in selective admissions, it is not

true most white applicants would fare better if schools

eliminated the practice. Goodwin Liu, The Myth and

the Math of Affirmative Action, Wash. Post, Apr. 14,

2001, at BO1, available at http://diversity.umich.edu/

admissions/statements/liu.html. This occurs in any

selection process in which the applicants who do not

benefit from affirmative action greatly outnumber

those who do. Id.

A study of 1989 data showed that elimination of

racial preferences would have increased the likelihood

of admission for white undergraduate applicants from

25 percent to only 26.5 percent. Jd. Further, at scores

of 1300 and above, the chance of admission for white

applicants would have increased by one percentage

point or less. Id. From a statistical standpoint,

consideration of race in the admissions process would

not have impacted Petitioner's ability to compete

equally in any meaningful way. Without a barrier to

overcome, the Constitutional harm is nonexistent.

B. The Issue Is Moot.

Federal courts only have constitutional authority to

resolve actual disputes. A live case or controversy

must exist for the court to resolve, and legal actions

cannot commence or continue after the matter has

been resolved, else the matter becomes “moot.” See

Arizonans for Official English v. Arizona, 520 U.S. 43

(1997); Renne v. Geary, 501 U.S. 312 (1991). Further,

when a plaintiff seeking forward-looking relief

challenges a discrete governmental decision as based

on an impermissible criterion, and the facts show

the government would have made the same decision

regardless, there is no liability and no cognizable

injury. Texas v. Lesage, 528 U.S. 18, 21 (1999).

Petitioner did not bring this case on behalf of

future applicants. She enrolled at Louisiana State

University and never reapplied or requested a transfer

to UT-Austin. In fact, she flatly rejected an offer

to attend a satellite campus, with the option of

transferring. Accordingly, the Fifth Circuit denied

standing for forward-looking relief, leaving the

application fee of one hundred dollars as the only

injury in dispute. Fisher, 758 F.3d at 639-50. “To

the extent that Fisher’s alleged injury is a monetary

one .. ., it bears no causal connection to the

complained-of university conduct. UT’s consideration

of race in admissions did not make Fisher any

more likely to apply to UT and thus to pay the fees. If

anything, the opposite is true.” Adam Chandler, Legal

Scholarship Highlight: The Trouble with Fisher,

SCOTUSblog (Sept. 6, 2012, 5:41 PM), http://

www.scotusblog.com/2012/09/legal-scholarship-high

light-the-trouble-with-fisher/. UT-Austin offered to

refund this application fee, and it matters not that

Petitioner refused the offer. The case was resolved the

instant the offer was made.

There is no live case or controversy for the court to

consider. Even assuming an actual dispute, no

remedy can resolve it. The redressability of an injury

is integral to the standing inquiry. Fisher, 758 F.3d at

640 n. 26. Thus, petitioner lacks standing on the basis

of “mootness.”

Il. THE COURT SHOULD ANALYZE BENIGN

AND INVIDIOUS CLASSIFICATIONS

DIFFERENTLY CONSISTENT WITH ITS

PAST PRACTICE AND THE PURPOSE OF

THE EQUAL PROTECTION CLAUSE.

A. The History of the Fourteenth

Amendment Supports a Distinction

Between Benign and Invidious Use of

Race.

1. The Fourteenth Amendment Was

Intended to Eliminate Discrimination

Against African Americans.

In the aftermath of the Civil War, Southern states

passed “black codes” which severely restricted the

civil rights of African Americans. Besides creating

more stringent criminal penalties for blacks than

whites, these codes limited the abilities of African

Americans to hold real property, personal property,

and to form and enforce contracts. See Brest et al.,

Processes of Constitutional Decisionmaking 301-09

(2006). Congress first attempted to respond to this

discriminatory regime by enacting the Civil Rights Act

of 1866, which passed over President Andrew

Johnson’s veto. Jd. However, concerns about the

constitutionality and the long-term security of this

provision led to the drafting of the Fourteenth

Amendment. Id. The intent was to remedy systemic

racial discrimination that had taken place prior to the

war and to empower the Federal government with

tools to prevent the reestablishment of any system

seeking to distinguish among citizens either de jure or

de facto. See William Nelson, The Fourteenth

Amendment: From Political Principle to Judicial

Doctrine 124 (1988) (quoting Representative Samuel

Shellabarger).

The framers of the amendment contemplated the

Equal Protection Clause as an enforcement provision

to secure the rights of citizens:

[Bly declaring all our people United States

citizens. . . declaring that the States shall not

deny them equal protection of these equal

laws, and then declaring that Congress shall

have power .. . to enforce the enjoyment of

these privileges of citizenship by seeing to it

that the laws do not abridge them nor the

States withhold protection to them.

Cong. Globe, 42d Cong., lat Sess. app. 68 (1871).

With a clear Congressional mandate, the courts set

about the task of dismantling the legal regime

constructed by the former Confederacy to deprive

African Americans of the equal rights to which they

were entitled. See, e.g., Burns v. State, 48 Ala. 195

(1872).

2. Use of the Equal Protection Clause to

Target Invidious Discrimination.

The Federal courts penned a series of decisions

striking down state actions, which sought to deny to

some citizens rights enjoyed by others based solely on

an arbitrary construction. In Strauder v. West

Virginia, the Supreme Court held that the categorical

exclusion of African Americans from jury service was

unconstitutional under of the Equal Protection

Clause. See generally 100 U.S. 303 (1880). The

majority noted the purpose of the Equal Protection

Clause was “to assure to the colored race the

enjoyment of all the civil rights that under the law are

enjoyed by white person, and to give to that race the

protection of the general government, in that

enjoyment, whenever it should be denied by the

States.” Id. at 306. Strauder formed the foundation

for the first major series of decisions targeting

discrimination aimed against African Americans. See

Bush v. Kentucky, 107 U.S. 110 (1883); Neal v.

Delaware, 103 U.S. 370 (1881).

While compelling on its own merits, the early

judicial interpretation of the amendment is only a

piece to understanding the original intent behind the

Fourteenth Amendment. The legislative and social

history surrounding the amendment is relevant to the

standard of review and treatment of affirmative action

programs today. As one commentator explains:

From the closing days of the Civil War until

the end of civilian Reconstruction some five

years later, Congress adopted a series of

social welfare programs whose benefits were

expressly limited to blacks. These programs

were generally open to all blacks, not only to

recently freed slaves, and were adopted over

repeatedly expressed objections that such

racially exclusive measures were unfair to

whites. The race-conscious Reconstruction

programs were enacted concurrently with the

fourteenth amendment and were supported

by the same legislators who favored the

constitutional guarantee of equal protection.

This history strongly suggests that the

framers of the amendment could not have

intended it generally to prohibit affirmative

action for blacks or other disadvantaged

groups.

Eric Schnapper, Affirmative Action and the Legislative

History of the Fourteenth Amendment, 71 Va. L. Rev.

753, 754 (1985).

The Freedman’s Bureau Acts of 1865 and 1866 are

illustrative of this point. The Freedman’s Bureau was

established, in part, for the proper administration of

race conscious social, legal, and educational programs

designed to benefit African Americans. H.R. Exec.

Doc. No. 11, 39th Cong., Ist Sess. (1865). The

Bureau’s role in ensuring that former slaves received

a quality education was at the heart of its purpose. As

General Oliver Howard, the Commissioner of the

Freedman’s Bureau, noted, “The most urgent want of

the freedmen was a practical education; and from the

first I have devoted more attention to this than to any

other branch of my work.” 2 Oliver O. Howard

Autobiography 368 (1907). During its later years,

the Bureau provided land and funding to help

establish exclusively black educational! institutions.

U.S. Bureau on Refugees, Freedmen and Abandoned

Lands, Sixth Semi-Annual Report on Schools for

Freedmen, 60-632 (July 1, 1868). Eventually, the

Bureau’s work in providing educational opportunities

to former slaves subsumed nearly all of its other

functions when the Congress indefinitely continued

“the educational department of” the Bureau. Act of

July 25, 1868, ch. 245, 15 Stat. 193.

B. The Court Can Appropriately Analyze

Benign Classifications Differently from

Invidious Classifications Using a Spectrum

Approach.

1. Benign Classifications Are Distinguishable

from Invidious Ones.

a. Historically, the Supreme Court

Distinguished Benign and Invidious

Classifications.

In Loving v. Virginia, the Supreme Court declared

“[t)]he clear and central purpose of the Fourteenth

Amendment was to eliminate all official state sources

of invidious racial discrimination in the States.” 388

U.S. 1, 10 (1967) (emphasis added). Accordingly, in

Metro Broadcasting, Inc. v. FCC, a majority of the

Court held intermediate scrutiny applied to benign

race-based measures. 497 U.S. 547, 563 (1990); see

also Fullilove v. Klutznick, 488 U.S. 448, 473 (1980)

(applying intermediate scrutiny to a minority set-

aside program in plurality decision). These decisions

established that “benign” racial classifications, in

at least some circumstances, were subject to

intermediate review. Metro Broad., Inc., 497 U.S. at

563.

Despite this precedent, the Court later held that

strict scrutiny applies to all racial classifications. The

Court rationalized this departure by stating that

“lajbsent searching judicial inquiry into the

justification for . . . race-based measures, there is

simply no way of determining what classifications are

‘benign’ or ‘remedial’ and what classifications are in

fact motivated by illegitimate notions of racial

inferiority or simple racial politics.” Richmond v. J.A.

Croson Co., 488 U.S. 469, 493 (1989). Following

Croson, the majority in Adarand continued to upend

the Court’s earlier position, and adopted strict

scrutiny for programs enacted by the federal

government. Adarand Constructors, Inc., 515 U.S. at

219.

Prior to these cases, courts found no difficulty in

distinguishing between “benign” and “invidious”

programs. For example, a classification made simply

to oppress African Americans or other minorities

would have no conceivable justification sufficiently

compelling to withstand judicial review. See, e.g., Yick

Wo v. Hopkins, 118 U.S. 356, 374 (1886). Similarly,

the validity of classifications that segregate

individuals based on race requires skepticism.

When considering facially neutral policies to show

an unconstitutional racial classification, a party must

first prove a “racially discriminatory purpose.”

Washington ». Davis, 426 U.S. 229, 240 (1976); Vill.

of Arlington Heights v. Metrop. Hous. Dev. Corp.,

429 U.S. 252, 264 (1977). In Davis, the Court

upheld a facially neutral law that had a racially

disproportionate impact on minorities, citing “the

basic equal protection principle that the invidious

quality of a law claimed to be racially discriminatory

must ultimately be traced to a racially discriminatory

purpose.” 426 U.S. at 241. The use of race “in a

purposeful manner” does not suffice unless a “racial

slur or stigma” is intended or inferred, or the

classification can be shown independently to have

been intended to violate a constitutional right. United

Jewish Organizations of Williamsburgh, Inc., v. Carey,

430 U.S. 144, 163 (1977). The Court has enumerated

several factors to establish invidious intent for facially

neutral laws, including legislative history, sequence of

events, patterns of behavior, and departures from

normal decision-making procedures, as evidentiary

sources to divine invidious intent. Arlington Heights,

429 U.S. at 266-68. Those same factors could be used

to distinguish benign from invidious intent where it is

not obvious.

Benign classifications are distinguishable from

invidious ones in measurable ways that justify

applying a different standard of review. In the

affirmative action context, a benign classification

via a race-based program does not produce the same

type of harm as an invidious classification. See

Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 375

(1978) (Brennan, J., concurring in part and dissenting

in part) (“[T)here is absolutely no basis for concluding

that Bakke’s rejection as a result of Davis’ use of

racial preference will affect him throughout his life in

the same way as the segregation of the Negro

schoolchildren in Brown I would have affected

them. .. . The use of racial preferences for remedial

purposes does not inflict a pervasive injury upon

individual whites in the sense that wherever they go

or whatever they co there is a significant likelihood

that they will be treated as second-class citizens

because of their color.”). With a Lenign program,

minority and non-minority students benefit alike.

Minority students receive an increased chance of

success through quality education and all students

receive the benefits of diversity. Moreover, a societal

benefit ensues when educational institutions produce

a diverse set of leaders with legitimacy in the eyes of

the citizenry.

The blanket application of strict scrutiny to all

racial classifications has come under question

precisely because it is not sustainable as a standard

for reviewing the legitimacy of benign governmental

actions based on race. See, e.g., Johnson v. California,

543 U.S. 499, 516 (2005) (Ginsburg, J., joined by

Souter and Breyer, JJ., concurring); id. at 524

(Thomas, J., joined by Scalia, J., dissenting); Gratz v.

Bollinger, 539 U.S. 244, 298-302 (2003) (Ginsburg, J.,

joined by Souter and Breyer, JJ., dissenting); Adarand

Constructors, Inc., 515 U.S. at 243-49 (Stevens, J.,

joined by Ginsburg, J., dissenting). This Court should

revisit the standard of review in cases like this one,

where universities seek to ensure diversity in their

student bodies through benign race-based affirmative

action programs.

b. Legitimate Concerns Arise When

Applying Strict Scrutiny to Benign

Race-Based Programs.

This Court has expressed concerns about applying

strict scrutiny to review benign race-based programs.

For exampie, in Adarand, Justice Stevens expressed

his concerns with applying the label “strict scrutiny”

to benign race-based programs:

[Strict scrutiny] has usually been understood

to spell the death of any governmental action

to which a court may apply it. The court

suggests today that strict scrutiny means

something different—something less strict—

when applied to benign racial classifications.

Although I agree that benign programs

deserve different treatment than invidious

programs, there is a danger that the fatal

language of ‘strict scrutiny’ will skew the

analysis and place well-crafted benign

programs at unnecessary risk.

515 U.S. at 243-44 n.1 (Stevens, J., dissenting).

Justice Stevens emphasized the difference between

invidious discrimination, aptly labeled an “engine of

oppression,” and. “benign” legislation, which has an

entirely different purpose—a “desire to foster

equality.” Jd. at 243. Further, Justice Stevens

advocated for applying strict scrutiny to invidious

classifications and intermediate scrutiny to benign

classifications. Id.

In Gratz, Justice Ginsburg criticized the Court's

application of the same standard of review for all

official race classifications. 539 U.S. at 298 (Ginsburg,

J., dissenting). Justice Ginsburg stated that:

government decisionmakers may properly

distinguish between policies of exclusion and

inclusion. . . . Actions designed to burden

groups long denied full citizenship stature are

not sensibly ranked with measures taken to

hasten the day when entrenched

discrimination and its aftereffects have been

extirpated.

Id. at 301 (citations omitted); see also Johnson v.

California, 543 U.S. at 516 (Ginsburg, J., concurring).

Strict scrutiny may have been necessary at the time to

“smoke out” the invidious classification masquerading

as benign. See Croson, 488 U.S. at 493. Today,

however, universities seeking to increase campus

diversity have done so to provide a richer classroom

experience and the educational benefits that result

from a diverse student body. They have not done so in

order to hide an invidious intent behind a benign

facade.

In Adarand, this Court stated that strict scrutiny

takes “relevant differences” into account “to

distinguish legitimate from illegitimate uses of race

in governmental decisionmaking.” 515 U.S. at 228.

Importantly, Adarand recognizes that not all racial

classifications are the same. “The Constitution does

not require things which are different in fact or

opinion to be treated in law as though they were the

same,” Tigner v. Texas, 310 U.S. 141, 147 (1940), and

“not every denial of a right conferred by state law

involves a denial of the equal protection of the laws,

even though the denial of the right to one person may

operate to confer it on another.” Snowden v. Hughes,

321 U.S. 1, 8 (1944). Because of this proposition, this

Court has applied varying levels of judicial scrutiny to

different classifications of groups under the Equal

Protection Clause, based on the type of classification

being made. Programs like UT-Austin’s, designed to

promote inclusion and remedy the historical

disadvantages of race discrimination, are deserving of

a different standard of review along the equal

protection spectrum. Properly contextualized, the

Equal Protection analysis should consider benign

classifications differently.

2. Courts Can Maintain Consistency While

Analyzing the Purpose and Motives of

Benign Classifications Using an

Intermediate Level of Scrutiny.

Any concern that subjecting benign classifications to

a more flexible standard of review will mean all

affirmative action programs are per se constitutional

is unfounded. The difference in standard simply alters

the first analytical step—determining how closely to

scrutinize the program at issue. Because not all

5 Amici do not argue for the cessation of a searching inquiry

when race is a component of a decision. Rather, the Court should

conduct that inquiry but balance it against the State’s interest to

determine whether the classification is benign or otherwise.

classifications are equally objectionable under the

Equal Protection Clause, the Court should consider

the classification under review make a determination

whether the classification is benign or invidious.

Reviewing benign classifications under a more relaxed

standard does not alter the need, or the opportunity,

for the Court to conduct a searching inquiry. Rather

this process follows precisely what the Court

prescribed in Adarand—considering relevant differ-

ences and distinguishing a legitimate use of race from

an illegitimate one in making a determination.

a. Applying a Spectrum Test Allows for

Consistency.

Depending on the classification at issue, i.e. race,

sex, etc., the Court applies a variation on the stated

standard. Instead of forcing classifications into rigid

tiers, or diluting the standard of strict scrutiny, a

flexible and intermediate standard of review for

benign classifications presents a more realistic and

practicable approach.

By employing a more flexible spectrum for re. iew of

equal protection challenges, the Court will create

greater consistency in its decisions. The Court’s

current process “assumes that there is no significant

difference between a decision by the majority to

impose a speciai burden on the members of a minority

race and a decision by the majority to provide a benefit

to certain members of that minority notwithstanding

its incidental burden on some members of the

majority.” Adarand Constructors, Inc., 515 S. Ct. at

212 (Stevens, J., dissenting); see also Brian C. Eades,

Note, Affirmative Action: The United States Supreme

Court Goes Color-Blind: Adarand Constructors, Inc. v.

Pena, 29 Creighton L. Rev. 771, 784 (1996). Benign

classifications hold a different purpose from invidious

classifications seeking on their face to burden a

minority racial group. Consistency does not

necessitate analyzing all race-based classifications

under the same standard. Instead, the Court can

continue to conduct a thorough inquiry and then raise

or lower its deference appropriately, addressing

benign racial classifications under one standard and

reviewing invidious ones under a more rigid standard

of review.

b. Consistency across Benign Race and

Gender Programs Is Desirable.

Intermediate scrutiny represents a more logical

choice of review for affirmative action programs based

on race.‘ Like gender classifications, benign racial

classifications are used in the affirmative action

context for a legitimate purpose, and reflect no

intentional malice or prejudice. Numerous scholars

have pointed out the inconsistency in standard of

review for benign affirmative action programs based

on gender versus race:

[A]s the law currently stands, the Court will

apply ‘intermediate scrutiny’ to cases of

invidious gender discrimination and ‘strict

scrutiny to cases of invidious race

discrimination, while applying the same

standard for benign classifications as

invidious ones. If this remains the law, . . . the

government can more easily enact affirmative

action programs to remedy discrimination

* Amici do not argue the level of scrutiny for affirmative action

programs aimed at other classes, such as gender, sexual identity,

or disability should be raised but instead racial considerations

should track other classes.

against women than it can enact affirmative

action programs to remedy discrimination

against African-Americans—even thoug

Amici do not argue the level of scrutiny for

affirmative action programs aimed at other

classes, such as gender, sexual identity, or

disability should be raised but instead racial

considerations should track other classes. h

the primary purpose of the Equal Protection

Clause was to end discrimination against the

former slaves.

E.g., Frank S. Ravitch, Creating Chaos In The Name

Of Consistency: Affirmative Action And The Odd

Legacy Of Adarand Constructors, Inc. v. Pena, 101

Dick. L. Rev. 281, 296 (1997) (citation omitted).

Adarand and Croson do not present viable legal

standards when measured against the practical

realities of their holdings. Under the current state of

the law, it is harder to remedy race than sex discrim-

ination through affirmative action, even though the

Fourteenth Amendment was intended to benefit

African Americans.

C. The Court Has Modified the Expressed

Level of Scrutiny Based on Its Valuation

of the State’s Interest Consistent with

the Spectrum Approach.

The Court’s reliance on the three-tiered scrutiny

classification system is not reflected in the outcomes

of many of its most contested cases. The standard

has become “strict in theory but fatal in fact” such

that no use of race has been found satisfying

these requirement, with the exception of Grutter v.

Bollinger. 539 U.S. 306 (2003). The Court ostensibly

applied strict scrutiny in that case, but the level of

review actually applied allowed for more deference to

state interests than otherwise dictated by the classi-

fication. This relaxed standard of review employed in

Grutter is not surprising given the fact that legitimate

state and societal interests allow for the consideration

of race, but the rhetoric of such a searching judicial

inquiry rarely will find a situation in which that

standard is met.

Practical considerations have required the Court to

lessen (or heighten) the analysis dictated by the tiered

system in cases involving sex-based classifications,

sexual orientation, mental disabilities, and certain

fundamental or quasi-fundamental rights, based on

the nature of the state’s interest. This practical

restructuring of the system in which courts first

identify a classification and then apply a correspond-

ing level of judicial scrutiny is the natural consequence

when the subtle factors underlying legitimate, yet

competing, interests collide in matters of public policy.

For example, in Grutter, the Court clarified that

remedying past discrimination is not the only permis-

sible justification for race-based governmental action.

539 U.S. at 328. Recognizing that attaining a diverse

student body is a compelling interest, the Court

applied a type of strict scrutiny that took “into account

complex educational judgments in an area that lies

primarily within the expertise of the university.” Id.

Weighing on the Court’s decision was the State’s

interest in the way diversity “prepar|es) students for

work and citizenship” and cultivates “a set of leaders

with legitimacy in the eyes of the citizenry.” Id. at 331-

32.

Not everyone agreed that this level of review was

consistent with the Court’s jurisprudence. Chief

Justice Rehnquist noted that “[{a]lthough the Court

recites the language of our strict scrutiny analysis, its

application of that review is unprecedented in its

deference.” Jd. at 380 (Rehnquist, C.J., dissenting).

Justice Kennedy wrote the “Court confuses deference

to a university's definition of its educational objective

with deference to the implementation of this goal.” Id.

at 388 (Kennedy, J., dissenting). Assuming the Court

must apply a formulaic and regimented analysis under

strict scrutiny, these criticisms are not without merit.

However, the Court’s review of laws has always been

fluid. The outcome in Grutter corresponds with the

Court’s practice of weighing the nature of the state’s

interest in determining the level of review to apply.

This adjustment of the level of scrutiny does not

move in only one direction. The Court has raised the

level of scrutiny when it finds a questionable interest

asserted by the state. In City of Cleburne v Cleburne

Living Center, Inc., 473 U.S. 432 (1985), the Court

purported to use a rational basis inquiry in striking

down a zoning ordinance that denied a special use

permit for a group home for individuals with mental

disabilities. The Court took pains to affirm that it was

not applying a heightened level of scrutiny to this

analysis based on a mental disabilities classification.

Id. at 442-46. The Court then engaged in a searching

inquiry into the purpose and rationale in passing such

an ordinance. Id. at 446-51; see also id. at 458

(“Cleburne’s ordinance is invalidated only after being

subjected to precisely the sort of probing inquiry

associated with heightened scrutiny.” (Marshall, J.,

concurring)). In doing so, the Court ignored the City’s

purported interest in maintaining property values,

which would be the level of review ‘raditionally

“accorded economic and social legislation.” Id. at 442.

Instead, the Court balanced Cleburne’s purported

interests against the rights of the mentaliy disabled

and invalidated the ordinance. Under rational basis

review, a court should not undertake any such

balancing. The question presented is merely, “Is the

purported rationale reasonable?” In Cleburne, it was

reasonable but for the fact the ordinance appeared to

target a particular class of individuals because of an

inherent characteristic. Jd. at 456 (Marshall, J.,

concurring). The Court adjusted its scrutiny based on

“the constitutional and societal importance of the

interest adversely affected and the recognized

invidiousness of the basis upon which the particular

classification is drawn.” Jd. at 460 (internal quota-

tions omitted).

_ A similar increase in the scrutiny level occurred in

Romer v. Evans, 517 U.S. 620 (1996). Until this

decision, no court had recognized sexual orientation as

a protected class and the Colorado Constitutional

Amendment at the heart of Romer prohibited

government action to protect individuals on the basis

of sexual orientation. Jd. at 624. The State’s principal

argument was not that it discriminated against

homosexuals, but that it placed them in the same

position as other non-protected groups. Jd. at 626.

The Court noted that the disadvantage imposed upon

individuals based on their sexual orientation was

“born of animosity toward the class of person affected.”

Id. at 634. While true, such an inquiry is not

consistent with the purported rationa! basis standard

of review.

D. Properly Valuing the State’s Interest

Better Explains the Court’s Decisions

in Equal Protection Cases.

Determinations of the constitutionality of any gov-

ernment action inherently involve value judgments.

The State’s interest could be exceedingly positive as it

relates to educational diversity, see Grutter, 539 U.S.

at 306, or it can be exceedingly negative as it relates

to laws that penalize individuals because of their

sexual orientation. See Romer, 517 U.S. at 620. That

interest lies upon a spectrum that requires balancing

many factors before the Court can pass on the

constitutionality of the law. See An Open Discussion

With Justice Ruth Bader Ginsburg, 36 Conn. L. Rev.

1033, 1045-1046 (2004) (“The decision generally turns

on the character of the right involved, the individual

interest at stake, and the strength of the government

interest tugging the other way. I would not assign

heavy weight to the labels. I don’t think the Court

routinely uses them in reaching its decision. The

decisions are often reached without resorting to

preconceived labels, and then fitted into the tiers.”).

One way to conceptualize how the Court determines

the level of scrutiny is to reduce the analysis to an

equation:

Level of Scrutiny (“LS”) = Basis of Classification

(“BC”yY

For purposes of the formula, rational basis review

equals 0, intermediate scrutiny equals 1, and strict

scrutiny equals 2. If the level of scrutiny was tied

5 A similar equation could exist for Fundamental Rights: LS =

FR.

solely to the protected status of the basis of classifica-

tion, i.e. race = 2, sex = 1, everything else = 0, only

three possible outcomes ensue. As the cases

demonstrate, however, the level of scrutiny does not

mirror this simple classification. In practice, the

Court has considered the value of competing interests

and applied a varying level of scrutiny relative to the

weight assigned to the competing values. In effect,

this has created a spectrum.

In cases involving a “suspect” class where the Court

values the state interest highly, the deference afforded

rises. In cases involving potential animus toward a

group that warrants rational basis review, the Court

engages in a more searching inquiry. A more accurate

equation recognizes the value of the relative

government interest:

LS = BC — Government Interest (“GI”)

When the government interest is strong and

positive, it exerts a downward pull on the level of

scrutiny that has been, and should be, applied by the

Court. Grutter is illustrative. In theory, assuming BC

is 2 because of the use of race, the level of scrutiny

should also be 2 for strict scrutiny:

2=2

However, the level of scrutiny was not strict.

Instead, the Court factored in the strength of the

government interest. If we assigned a value to that

interest of 0.5,° the formula becomes:

®* While assignment of the 0.5 value in this case is simply

an approximation for illustrative purposes, the relevant

consideration is that the Court assigned the state interest a

positive value.

15=2-0.5

This formula more accurately reflects the level of

scrutiny the Court used in upholding the Michigan

Law School program; a level of inquiry somewhere

between intermediate and strict scrutiny.

Conversely, when the State’s purported interest is

negative, it raises the level of scrutiny the Court

applies. Here, Cleburne is illustrative. In theory, the

Court used rational basis review because mental

disability is not a protected class:

0=0

The Court actually applied a heightened form a

scrutiny to strike down the ordinance. Assigning a

value of -0.8’ for the invidious intent employed by

Cleburne, the formula denotes:

8 = 0 -(-0.8)

Again, this formula more accurately reflects the

heightened level of scrutiny the Court applied—

something more than rational basis review.

These formulae demonstrate the inherent flaw in a

tiered analysis: Defining the level of scrutiny based on

one variable (race, sex, mental disability) ignores the

competing interests of the state (educational diversity,

disapproval of lifestyle choices, property values) that

are necessary considerations for any reasoned

decision.

The irony in this rigid-tier approach is that the

Court has encouraged and evaluated the nature of the

government interest in myriad cases involving suspect

classifications and fundamental rights, but prohibits

’ The precise amount of the value is immaterial as long as the

formula approximates a skeptical negative value to this variable.

it when weighing invidious or benign racial

classifications. Croson, 488 U.S. at 493. In doing so,

the law ignores:

[T)he difference between a “No Trespassing”

sign and a welcome mat. ‘t would treat a

Dixiecrat Senator’s decision to vote against

Thurgood Marshall’s confirmation in order to

keep African-Americans off the Supreme

Court as on a par with President Johnson’s

evaluation of his nominee’s race as a positive

factor. It would equate a law that made black

citizens ineligible for -nilitary service with a

program aimed at re ‘uiting black soldiers.

An attempt by the majority to exciude

members of a minority race from a regulated

market is fundamentally different from a

subsidy that enables a relatively small group

of newcomers to enter that market. An

interest in ‘consistency does not justify

treating differences as though they were

similarities.

Adarand Constructors, Inc., 515 U.S. at 245 (Stevens,

J., dissenting). To the extent the Court’s refusal to

distinguish invidious from benign programs in Croson

and Adarand does not reflect the spectrum upon which

the Court actually conducts its Equal Protection

jurisprudence, the Court should overturn those cases

and better provide guidance to lower courts regarding

the proper weight to afford governmental interests.

The Court can, and does, distinguish between

invidious and benign laws and programs, and

affording a more deferential review of benign racial

classifications better reflects the constitutional

purpose of the Equal Protection Clause.

lil. THE HOLISTIC CONSIDERATION OF

RACE, WHICH ONLY PARTIALLY

MODERATES THE ADVERSE IMPACT

OF TEST SCORES ON MINORITIES,

IS NOT AN IMPERMISSIBLE “RACIAL

PREFERENCE.”

The question presented is whether the “use of racial

preferences in undergraduate admission decisions”

violates the Equal Protection Clause. Brief for

Petitioner at i. To describe UT-Austin’s consideration

of race as a “preference,” however, grossly distorts UT-

Austin’s use of race in its admission process.’ Using

this Court’s prior guidance, UT-Austin considers race

not as a “preference,” but rather as a part of a “holistic”

review. SJA at 4a (citing Grutter, 539 U.S. at 306).

Minorities face comparative systemic and

institutionalized disadvantages in the process as a

whole. The SAT and ACT tests, which contribute

heavily to the AI used as a baseline for admissions

decisions, have severe adverse impacts on minority

applicants. UT-Austin’s modest consideration of race

* Petitioner mischaracterizes various documents to create the

false impression UT-Austin awards racial “preferences” in its

admissions decisions. For example, page 8 of Petitioner’s brief

cites pages 152a, 174a, and 280a of the Supplemental Joint

Appendix (“SJA”): “In 2004, UT reintroduced racia: preferences

by adding “race” to the list of “special circumstances” that make

up a key component of the PAI [Personal Achievement Index].”

Page 152a of the SJA states that race may be considered as one

of seven “special circumstances,” but does not describe any “racial

preference.” Race is not assigned any specific weight in the PAI,

but is one of many factors considered in a “holistic” review. SJA

at 4a. Additionally, Petitioner's remaining page citations are not

relevant. Page 174a of the SJA is from a Division of Diversity

and Community Engagement report, which does not address the

admissions process. Finally, page 280a does not exist.

has, at most, a small mitigating impact on the far more

significant hurdles disadvantaged minorities must

overcome.

A. College Admission Tests Have Serious

Adverse Impact on Minority Applicants.

The large and persistent racia’ gap in college

admission test scores is well documented and widely

recognized. In 2008, when Petitioner applied for

admission to UT-Austin, average SAT scores among

858,561 white college-bound seniors were 528 for

Critical Reading, 537 for Mathematics, and 518 for

Writing. College Board, 2008 College-Bound Seniors

Total Group Profile Report 3 (2008) (hereinafter “2008

Group Profile”) (Table 8). The corresponding averages

for black college-bound seniors were 430, 426, and 424

for Critical Reading, Mathematics, and Writing,

respectively. Id. In statistical terms, the disparities

between average white and black scores for each of

these tests exceeded 370 standard deviations.’ This

dwarfs the statistical disparities noted in some of this

Court’s most widely noted discrimination decisions.

See, e.g., Dukes v. Wal-Mart Stores, Inc., 222 F.R.D.

137, 165 (N.D. Cal. 2004) (47 standard deviations),

* Applying a two-sample t-test using the mean and standard

deviation values reported in the 2008 Group Profile, the

disparities between white and black test scores were

t= —— = 381.25 standard deviations for Critical

102

656.561 174,363

Reading, t =-——-y-——e= = 427.46 standard deviations for

108

856561 174,383

_ —s«$16-424— ee

Mathematics, and t = Ee = 378.38 standard deviations

656.561 174,363

for Writing.

affd, 474 F.3d 1214 (9th Cir. 2007), rev'd on other

grounds, 113 S. Ct. 2541 (2001) (47 SDs); Castaneda v.

Partida, 430 U.S. 482, 496 n.17 (1977) (29 standard

deviations).

B. Holistic Consideration of Race Is

Essential to Mitigate the Racial Bias of

Facially Neutral Admission Test

Criteria.

Confronted with such glaring adverse impact, an

admission system based on facially neutral objective

standards would place minority college applicants at a

distinct disadvantage. The severity of these barriers

is illustrated by the fcllowing hypothetical scenario,

derived from actual statistics.

Established by this Court in Griggs v. Duke Power

Co., selection criteria with adverse impact on

minority groups are discriminatory unless shown to

have a “demonstrable relationship to successful

performance.” 401 U.S. 424, 431 (1971).'° When the

selection criterion is a test, the “demonstrable

relationship” must be established through research

that measures test “validity” by means of a

“correlation coefficient.” Hamer v. City of Atlanta, 872

F.2d 1521, 1525-26 (11th Cir. 1989). A correlation

coefficient of 1.0 establishes a perfect relationship

between test performance and downstream success.

Conversely, a 0.0 correlation coefficient denotes the

lack of any relationship at all between test scores and

performance. Id. at 1526.

principle has been extended to university admissions and testing.

See Bakke, 438 U.S. at 308 n.44.

A report released in the same year that Petitioner

applied for college admission documented a 0.35

correlation between combined scoring on all three SAT

segments and the selected measure of success, which

was first-year college grade point average (“GPA”).

College Board, Validity of the SAT for Predicting First-

Year College Grade Point Average, Research Report

No. 2008-5, at 5 (2008) (hereinafter, “Validity of the

SAT”) (Table 5). Because first-year GPA can be

determined only for students admitted, researchers

were restricted in their ability to assess correlations

between SAT scores and GPA for candidates denied

admission. To compensate, researchers calculated an

“adjusted correlation coefficient,” which was reported

as 0.53. Id.

The practical impact of the SAT, with its adverse

impact and its adjusted correlation coefficient of 0.53,

is illustrated infra. Each of the points on this graph

represents one individual among a randomly drawn

sample of 200 candidates for college admission,

including 100 white and 100 black applicants. The

sample was drawn based on specifications that exactly

mirror the broader SAT scoring and first year GPA

patterns in existence at the time of Petitioner's

application.'' The diagonal line represents the

'! SAT scores were specified to have a mean of 528 and

standard deviation of 102 for the 100 hypothetical white students

and a mean of 430 and standard deviation of 97 for the 100

hypothetical black students. This corresponds to the means and

standard deviations on the SAT Critical Reading test for these

groups reported in the 2008 Group Profile, supra. First-year

GPAs were specified to have a mean of 2.80 and standard

deviation of 0.81, which corresponds to the median statistics

reported in a 2012 ACT validation study based on data gathered

between 2000 and 2006. ACT, Predicting Long-Term College

Success Through Degree Completion Using ACT Composite Score,

positive 0.53 correlation between SAT score and first-

year GPA.

Compearteon of GAT Score and First Year Grade Potrd Average By Race

Ree 060° OC Oe 068

Despite the general positive relationship between

SAT score and projected GPA, students with low SAT

scores often achieve high GPAs and students with high

SAT scores often have low GPAs. Notwithstanding

this high degree of variability, a university that relies

on test scores as a selection determinant will tend to

admit more white applicants than black applicants.

The concentration of triangular data points,

representing white applicants, on the right side of

the graph, reflects this tendency. Crucially, however,

not all of these elevated test scores translate into

ACT Benchmarks, and High School Grade Point Average, at 16

(2012) (Table 3). Finally, correlations between SAT and first-year

GPA, for both white and black students, were set at 0.53,

consistent with the adjusted correlation coefficient in the 2008

Validity of the SAT report.

collegiate success as the vertical distribution of

these same high-scoring triangular data points

demonstrates.

If admission decisions were based solely on test

scores, the imbalance between white and black

admission rates would be huge. The following chart

illustrates the gap in success rates for the sample at

various test score cutoffs:

SAT Percentage

Score Admitted

Cutoff | White | Black

700 0 1

650 13 1

600 26 5

Such vast gaps in acceptance rates would only be

acceptable if black students, by the same large

margin, were inherently less capable of academic

success. They are not. See Fullilove, 448 U.S. at 545

(Stevens, J., dissenting) (“[IJncreased opportunities

have produced an _ ever-increasing number of

demonstrations that members of disadvantaged races

are entirely capable not merely of competing on an

equal basis, but also of excelling in the most

demanding professions.”).

Consistent with Justice Stevens’ observation that

students are equally capable of success regardless of

race, a system that prefers white applicants effectively

operates to disproportionately exclude more qualified

black candidates. Statistics from the sample,

presented in the following table, are demonstrable. At

each potential scoring cutoff, the combined group of

admitted students is projected to perform significantly

better in college than those who were not admitted.

Percentage Average GPA Average GPA

Admitted (Admissions) (Non-Admissions)

Oo | 1 Jj 3% | -- 3.95 2.75 | 2.71 | 2.79

| 13 1 3.17 | 3.11 3.95 2.72 2.65 2.79

26 5 3.35 | 3.20 4.12 2.64 | 254 | 2.73 —

a 36 17 | 3.27 3.12 3.58 _ 2.57 2.48 2.64

57 35 3.07 | 2.97 3.24 | 2.48 2.36 2.56

76 50 3.00 | 2.91 3.13 | 2.33 2.07 2.46

_} 85 _ _| 64 2.92 2.86 | 3.01 | 2.26 1.86 2.42

| 92 | 78 2.86 2.79 2.94 | 2.16 1.78 2.30

96 92 2.81 2.76 2.87 1.80 1.51 1.94

The racial disparity in these decisions is obvious.

Because white students tend to get higher SAT scores,

but equivalent GPAs. the larger proportion of

admitted white applicants will likely include

individuals with lower projected GPAs. These

admissions come at the expense of more qualified

black applicants, who could have done as well, or even

better, if afforded the opportunity.

C. Removal of Race from the Admissions

Process Will Not Result in Racial

Neutrality.

Petitioner argues that the “racial preference”

allegedly embodied in the UT-Austin’s consideration of

race must be removed to achieve “the imperative of

racial neutrality.” Brief for Petitioner at 4 (quoting

JA. Crosson Co., 488 U.S. at 519 (Kennedy, J.,

concurring in part and concurring in the judgment). In

truth, however, an admission system stripped of its

ability to consider race as a “special circumstance,”

SJA at 152a, will not be facially neutral.” Petitioner

asks the Court to return her and other white

applicants to the advantaged position they have

enjoyed historically and continue to enjoy. Such an

outcome does not reflect racial neutrality.

There are many potential explanations for the

existing racial bias in college admission test scoring.

A seminal article by research psychologist Roy O.

Freedle concludes that cultural and statistical biases

contribute significantly to poorer outcomes for

'? The sample illustration above is an oversimplification, since

it focuses solely on test scores. Test scores, however, make up an

important element of the UT-Austin’s admissions process, and no

other factor sufficiently mitigates against their disparate racial

impact.

African-Americans, evidenced by scoring differences

being narrower for harder questions and wider for

easier items more likely to be tainted by cultural

differences in reactions to verbal cues. Freedle,

Correcting the SAT’s Ethnic and Social-Class Bias: A

Method for Reestimating SAT Scores, 73 Harvard

Ed. Rev. 1 (2003). Psychological factors such as

“stereotype threat” also lead non-Asian minorities to

underperform as compared to whites and Asians with

similar cognitive and academic abilities. See, e.zg.,

Scherbaum et al., Examining the Effects of Stereotype

Threat on Test-Taking Behaviors, 14 Soc. Psychol. Ed.

361 (2011). Differences in test preparation appear to

contribute further to racial disparities. See Ellis &

Ryan, Race and Cognitive-Ability Test Performance:

The Mediating Effects of Test Preparation, Test-

Taking Strategy Use and Self-Efficacy, 33 J. Applied

Soc. Psych. 2607 (2003).

Regardless of the exact causes of these wide racial

differences, the most important truths for this case are

that (1) they exist, and (2) they are not explained by

corresponding differences in academic ability. UT-

Austin’s modest consideration of race, while arguably

not sufficient, mitigates some of this impact.

Interpreting the Equal Protection Clause to forbid

such consideration ignores the fact that removal of

this factor would result not in a racially neutral

selection process, but rather a racially biased one.

CONCLUSION

Petitioner filed this case because she was denied

admission to UT-Austin. Every year, thousands of

students are denied admission to the academic

institution of their choice. While certainly

disappointing, Petitioner was not denied admission

because of her race, leaving no remedy for the Court to

grant. Regardless, UT-Austin’s careful and benign

consideration of race does not violate the Fourteenth

Amendment. Supreme Court precedent supports

using a standard of review that is not strict in theory

and fatal in fact. UT Austin’s admission process, as

reviewed by the Fifth Circuit, satisfies that standard.

Forbidding the holistic manner in which UT-Austin

considers race in admissions would not create a race-

neutral playing field, but would create further

setbacks to the goal of equal opportunity in education.

For these reasons, Amici respectfully submit that the

Court should affirm the decision of the Fifth Circuit.

Respectfully submitted,

DEAN SPARLIN* JOSEPH D. WEINER

SPARLIN LAW OFFICE, PLLC Counsel of Record

4400 Fair Lakes Court, MICHAEL L. CHILDERS*

Suite 106 EMILY A. MCNEE*

Fairfax, VA 22033 LITTLER MENDELSON P.C.

(703) 803-8800 80 South 8th Street

dsparlin@sparliniaw.com Suite 1300

Minneapolis, MN 55402

SCHUYLER AFFIRMATIVE

erm Pascere jweiner@littler.com

1629 K Street NW MATTHEW J. CAMARDELLA*

Suite 300 JACKSON LEWIS P.C.

Washington, DC 20006 58 South Service Road

(202) 349-1699 Suite 250

schuyler@schuyleraap.com Melville, NY 11747

(631) 247-4369

*Of Counsel camardem@jacksonlewis.com

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.