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

Supreme Court, US.

FILLED

No. 14-981 SEP 10 2015

In the

Supreme Court of the Anited States

ABIGAIL NOEL FISHER,

Petitioner,

Vv.

UNTVERSITY OF TEXAS AT AUSTIN, et al.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICI CURIAE THE ASIAN

AMERICAN LEGAL FOUNDATION AND THE

ASIAN AMERICAN COALITION FOR EDUCATION

(REPRESENTING 117 AFFILIATED ASIAN

AMERICAN ORGANIZATIONS) IN SUPPORT

OF PETITIONER

JOHN C. EASTMAN GORDON M. FAUTH, JR.

Center for Constitutional Counsel of Record

Jurisprudence ROSANNE L. MAH

c/o Chapman University LITIGATION LAW GROUP

Dale E. Fowler School of Law 1801 Clement Avenue,

One University Drive Suite 101

Orange, CA 92886 Alameda, CA 94501

(510) 238-9610

LEE C. CHENG

ALAN TSE

Asian American Legal

Foundation

11 Malta Street

San Francisco, CA 94131

Counsel for Amici Curiae

ee ne oe eee eee ee es oe ee ee aa heen ieee

QUESTIONS PRESENTED

1. Whether the Fifth Circuit’s re-endorsement of the

University of Texas at Austin’s use of racial pref-

erences in undergraduate admissions decisions

can be sustained under this Court’s decisions in-

terpreting the Equal Protection Clause of the

Fourteenth Amendment, including Fisher v. Uni-

versity of Texas at Austin, 133 S.Ct. 2411 (2013).

2. Whether Grutter v. Bollinger, 539 U.S. 306

(2003), which upheld the use of racial preferences

in higher education admissions for the non-

remedial, and amorphous purpose of “diversity,”

should be overruled as fundamentally incompati-

ble with the Equal Protection Clause of the Four-

teenth Amendment and the equality principle of

the Declaration of Independence?

TABLE OF CONTENTS

QUESTIONS PRESENTED .........0..........ccccesessssessessseesesees i

RED CEU BURT COBO cccecccsccecesscestsccensssssoveseseseeoses iv

INTEREST OF AMICI CURIAE 00000... I

SUMMARY OF ARGUMENT ......00...... cc ccceecceeeeeeeeeeee 6

Tiida cciatti ccaticniaimoncaabaciiiabdnandsebabanbiniaesée 8

I. Asian Americans, a Minority Group Repeatedly

Victimized by Discrimination, Are the Group

Most Harmed by the University of Texas

Admissions Program—A Fact Not Even

Considered by the Fifth Circuit. ...........0....000.......... x

II. UT’s Use of Race Deprives Asian Americans of

the Right To Be Judged As Individuals and Not

By the Color of Their Skin....................0.0cccccc0eeeeees 10

A. UT’s racial preference scheme has an

invidious effect on Asian Americans, whom

UT apparently considers inferior to other

races in achieving its skin-deep “diversity”

a ellatiaiee 10

B. Racial balancing for its own sake attempts

to mirror Texas demographics to appease

GRNRROME WUIOE WEDGR. ..cccccccccsscecccccecssesesesseccesevee 11

III. For Much of America’s History, Race-Based

Governmental Programs Have Been Used To

Oppress Asian Americans. ...................:.:::00+000000++ 12

A. Repeatedly, federal court action was

necessary to compel local government bodies

to treat Asian Americans as human beings. 1!2

B. Historical Discrimination Against Asian

Americans in Education......................:.....000000 16

il

IV. Today, Supposedly Benign Racial Balancing

and Diversity Policies Insidiously Discriminate

Against Asian American Students Nationwide. 17

A. The Ho Case -- Modern Day Discrimination

Sop Sn SII, .q.. .sniccsccsincsecteciteissanestuanaiaeamar 17

B. Continuing Legislative Battles in California

Over Use of Race in Education........................ 21

C. Are Asian Americans the New Jews?.................... 23

V_ The Fifth Circuit Erred In Not Recognizing

That The Top Ten Percent Plan Had Already

Achieved A “Critical Mass.” ................cccccc0ccceeeeeee 28

VI. It Has Historically Been A Mistake To Defer

To The Opinions Of Officials, Experts and

Other Luminaries Who Support Racial

CIID csersescssicintinsspnteniiniitniaiaubiiagsnaaenne 31

VII.This Court Should Re-Establish The Bright-Line

Rule Reserving Use of Race For Remedial

SITTIN, .ccccionsnsocasecseusscmetossesionesdusabiediadualaiaaaaaaann 35

CIID scncscicsoscrsscenssousstsasevtsoininsiasnnsiaaaannnne 38

iv

TABLE OF CITED AUTHORITIES

Page

CASES

Adarand Constructors, Inc. v. Pena,

ed in id cen eéesveses 10, 36, 37

Brown v. Board of Education,

ST EEE sc ccccccccccccocce 17, 27-28, 31

Fisher v. Univ. of Tex. at Austin,

EES s ccccccccwcccccee 8, 9, 28, 30

Fisher v. Univ. of Tex. at Austin,

645 F Supp. 2d 587 (W.D. Tex. 2009) .......... 9, 11

Fisher v. Univ. of Tex. at Austin,

758 F.3d 633 (Sth Cir. 2014)...............045- 8, 30

Fullilove v. Klutznick,

kg ce ckddaeendeceveseseed 34

Gong Lum v. Rice,

i decd cdnacbeedieceseeonse 16

Grutter v. Bollinger,

Ls occcaccccscsceocceces passim

Grutter v. Bollinger,

S58 FOG Tae Gth Cir. BOGE) .. ww. cece ccc ceees 37

Hirabayashi v. United States,

828 F.2d 591 (9th Cir. 1987) .......... 15, 32, 33, 34

Uv

Cited Authorities

Ho Ah Kow v. Nunan,

12 F. Cal. 252 (C.C.D. Cal. 1879)... .

Ho v. San Francisco Unified Sch. Dist.,

59 F. Supp. 2d 1021 (N.D. Cal. 1999)

Ho v. San Francisco Unified Sch. Dist.,

147 F.3d 854 (1998). ..............

Ho v. San Francisco Unified Sch. Dist.,

965 F. Supp. 1316 (1997) ..........

In re Ah Chong,

2 F. 733 (C.C.D. Cal. 1880).........

In re Lee Sing,

43 F. 359 (C.C.D. Cal. 1890). .......

In re Tiburcio Parrott,

1 F. 481 (C.C.D. Cal. 1880).........

Korematsu v. United States,

Se Gs Ec oo Me cccccceces

Korematsu v. United States,

584 F. Supp. 1406 (N.D. Cal. 1984). .

Korematsu v. United States,

583 F. Supp. 1406 (N.D. Cal. 1984). .

vi

Cited Authorities

Page

Lee v. Johnson,

nso ocacceLbckbbescewaheuans 17

Metro Broadcasting, Inc. v. FCC,

ee ed 35, 36

Parents Inv. In Comm. Sch. v.

Seattle School No. 1,

ca. ccc cbunebiseueebon 12, 35

Parents Inv. In Comm. Sch. v.

Seattle School No. 1,

coc cccnaeuGabababoandeuevedse ed 35

People v. Hall,

oad kalba sdenukentueuadesadues 13

Plessy v. Ferguson,

ic. <ccudbuadseadsaoneaeeetn 17, 31

Regents of the University of California v. Bakke,

Ee eT 34

Rice v. Cayetano,

ee i eee ee lead 10, 17

Richmond v. Croson,

SL os J ocnuvecsavececeweet 20, 36, 37

San Francisco NAACP v.

San Francisco Unified Sch. Dist.,

576 F. Supp. 34 (N.D. Cal. 1983).............. 18, 33

vit

Cited Authorities

Page

Shaw v. Reno,

= 36-37

Tape v. Hurley,

Be Oe Ga Oe BG cc ccc cccccccccccesccce 16

United States v. Wong Kim Ark,

SE Re ee ene 14

Wong Him v. Callahan,

119 F. 381 (C.C.N.D. Cal. 1902). ...............8. 16

Wygant v. Jackson Board of Education,

i I re 37

Yick Wo v. Hopkins,

a oi a te eta eededionan Ch 14

STATUTES AND OTHER AUTHORITIES

Fourteenth Amendment to the U.S. Constitution. .13, 36

IE a ee ee eee ee re” 15

EE i ivdgdcnnedeenséasgunneteodsesen 1

SE os 6s ran cenedebaseedhacwewesdaeadas 1

ee ET 22

vitt

Cited Authorities

Page

ee 21, 22

California Senate Constitutional Amendment

i +ed6euee6nseeeeeuews caakees seekeustedaus 22

Tex. Educ. Code § 51.803 (1997) ................... 29

Pat K. Chew, Asian Americans: The

“Reticent” Minority and Their Paradozes,

36 Wm. & Mary L. Rev. 1 (Oct. 1994) ......... 24-25

Chinese Immigration and the Chinese

ia cudpenduéyecdese vunsaevseeeus 14

Alan M. Dershowitz and Laura Hanft,

Affirmative Action and the Harvard College

Diversity-Discretion Model: Paradigm or

Pretext, 1 Cardozo L. Rev. 379 (1979) ......... 24, 27

Selana Dong, “Too Many Asians”: Challenge

of Fighting Discrimination Against Asian-

Americans and Preserving Affirmative

Action, 47 Stan. L. Rev. 1027 (May 1995)......... 24

Michael Dorgan, Desegregation or Racial Bias?,

San Jose Mercury, at 1A (June 5, 1995) .......... 21

Bob Egelko, Heather Knight, SCHOOLS, Justices

Take Cases On Race-Based Enrollment,

San Francisco Chronicle (June 6, 2006) .......... 22

x

Cited Authorities

Nathan Glazer, Diversity Dilemma, The New

Republic (June 22, 1998) ....... cece ccc ccccvcece 24

Daniel Golden, The Price of Admission: How

America’s Ruling Class Buys Its Way into

Elite Colleges—and Who Gets Left Outside,

Chapter 7: The New Jews (Three Rivers

PE sccaccnstcccceséneace veceut 25-26, 27

Grand Jury Report, The San Francisco

Crile Sonoel Cabrel... ccc cesecccces 33, 34

Group Preferences and the Law, U.S. House

of Representatives Sub-Committee on the

Constitution Hearings (June 1, 1995) ............ 20

Julian Guthrie, S.F. School Race-Bias Case

Trial Starts Soon, San Francisco

Examiner (Feb. 14, 1999) .................000e- 20

Implementation and Results of the Texas

Automatic Admissions Law: Demographic

Analysis of Entering Freshmen, Report 12,

Tables 6a (UT Austin, Oct. 29, 2009).............. i)

Jerry Kang, Negative Action Against Asian

Americans: The Internal Instability Of

Dworkin’s Defense Of Affirmative Action, 31

Harv. C.R.-C.L. L. Rev. 1 (Winter 1996) ..... 24, 34

x

Cited Authorities

Page

Joyce Kuo, Eacluded, Segregated and

Forgotten: A Historical View of the

Discrimination of Chinese Americans in

Public Schools, 5 Asian L. J. 181 (May 1998)... .6, 16

David I. Levine, The Chinese American

Challenge to Court-Mandated Quotas in

San Francisco’s Public Schools: Notes

from a (Partisan) Participant-Observer,

16 Harv. BlackLetter J. 39 (Spring 2000). . .19, 20, 24

Victor Low, The Unimpressible Race

(East/West Publishing Co. 1982) | 3

Charles McClain, Jn Search of Equality (Univ.

IE sc ceeusbecubasevceue 12-13, 16

Kate Murphy, California Affirmative Action

Revival Bill Is Dead (San Jose Mercury

News, March 18, S014). ..... cc ccccccvccccccsecs 23

Proposal to Consider Race and Ethnicity in

Admissions at 24, June 25, 2004................ 12

Leo Rennert, President Embraces

Minority Programs, Sacramento Bee

(Metro Final) (April 7, 1995).................... 24

Jason P. Riley, The New Jews of Harvard

Admissions (Wall Street Journal,

EE 66 cd dub uctesveedeebeesdvesteeet 25

xt

Cited Authorities

Page

Elmer Clarence Sandmeyer, The Anti-

Chinese Movement in California (Univ.

I adacoscecccsvawsedesasccuedes 13

Evan P. Schultz, Group Rights, American Jews,

and the Failure of Group Libel Laws, 66

Brook. L. Rev. 71 (Spring 2000).............. 23-24

Lawrence Siskind, Racial Quotas Didn’t

Work in SF Schools, op-ed, San Francisco

Mmnmmimer Giiy 6, IGDGO). .. cc cccccccccccccccs 24

Ron Unz, The Myth of American Meritocracy:

How Corrupt are Ivy League Admissions?

(The American Conservative, Dec. 2012)......... 27

Dan Walters, “Asian-Americans opposing

undoing Prop. 209,” San Diego Union

Tribune (Mareh 14, S014) .. ccc ccc ccc ccees 23

Nicholas Webster, Democratic Merit Project,

Analysis of the Texas Ten Percent Plan

(Kirwan Institute for the Study of Race and

PURE ct ccceccecesesenvncesess 29

INTEREST OF AMICI CURIAE!

The outcome of this case is of critical importance

to Amici Curiae and their constituents, who are

Americans of Asian ethnic origin. They and their

constituents plead with this Court to recognize the

long and sad history of discrimination against Asian

Americans in America, and to ban continuing dis-

crimination against the children of this historically

oppressed group for any non-remedial purpose, in-

cluding purportedly benign rationales such as race-

determinant diversity and affirmative action.

The Asian American Legal Foundation (““AALF”)

was founded to protect and promote the civil rights of

Asian Americans, in particular where, as here, Asian

Americans are being discriminated against in the

name of a purportedly benign purpose. Members of

AALF were instrumental in the struggle to end dis-

crimination against Chinese American students in

the San Francisco, California public school system,

discrimination that was also imposed for supposedly

benign reasons. See Ho v. San Francisco Unified

Sch. Dist., 147 F.3d 854 (1998). More information on

AALF and its mission can be found on its website at

http://www.asianamericanlegal.com.

! Pursuant to this Court’s Rule 37.3(a), all parties have con-

sented to the filing of this brief. Letters evidencing such consent

have been filed with the Clerk of the Court. Pursuant to Rule

37.6, Amici Curiae affirm that no counsel for any party au-

thored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than Amici Curiae,

their members, or their counsel made a monetary contribution

to its preparation or submission.

2

The Asian American Coalition for Education

(“AACE”) is a non-political, non-profit, national or-

ganization devoted to promoting equal rights for

Asian-Americans in education and education-related

activities. The leaders of AACE and its supporting

organizations are Asian American community lead-

ers, business leaders and most importantly, parents.

They are not professional “civil rights advocates,” but

were forced to become civil rights advocates to stop

and prevent the discrimination against their children

that the “professionals” ignore, downplay and facili-

tate. In May 2015, the founders of AACE united

more than 60 Asian American organizations to file a

complaint with Department of Justice and Depart-

ment of Education regarding Harvard University’s

discriminatory practices against Asian American ap-

plicants. It was one of the largest joint actions ever

taken by Asian American organizations in pursuit of

equal education rights.

AACE represents some 117 affiliated Asian Amer-

ican organizations in this present amicus effort in-

cluding: 1441 Manufacture-Home Residents Associa-

tion; 80-20 Washington D.C. Area Chapter; Allstar

Institute; American Chinese Women Culture Media

Club; American Society of Engineers of Indian

Origin-NCC; American Southern Californian Eco-

nomic and Culture Association; Ancestor Worship

Festival Overseas Chinese; Anhui Association of

Texas; Asian American Coalition for Education (NY);

Asian American Community Association; Asian

Americans for Political Advancement; Asian Boy

Equal Rights; Asian Leadership and Cultural Net-

work; AsianAmericanVoters.org; Backbone Founda-

tion; Boise Modern Chinese School; Boston Forward

Foundation; Boston Fudan Aluminum Association;

3

Center for Asian Pacific Affairs; Chicago Fudan

Alumni Association; China Youth Center; Chinese

America Association of Orange County; Chinese

American Equalization Association (HQH); Chinese

American for Progress and Equality (CAPE); Chinese

American Parent Association; Chinese Language

Teacher Association- Florida Chapter; Chinese

School of Orlando; Coalition of Asian-Americans for

Civil Rights; Conejo Chinese Cultural Association;

Dallas/Fort Worth Chinese Alliance; Dong Fang Chi-

nese; Enspire School; Federal Asian Pacific American

Council; First Han International Language School;

Florida Acupuncture Association; Florida Fujianese

Association of USA; Florida Shandong Fellowship

Association; Global Organization of Indian Origin -

Los Angeles Chapter; Golden Dragon Chinese Kung

Fu and Cultural Institute; Great Neck Chinese Asso-

ciation; Hanlin Culture and Education Foundation;

Health Foundation (TX); Hebei Association in North-

ern California; Henan Association in Northern Cali-

fornia; Houston Chinese Alliance; Hua Yi Chinese

School; Hunan Club of Houston; Idaho Chinese Or-

ganization; Impact Speaking Academy; India Associ-

ation of San Antonio; Indo-US Chamber of Com-

merce of Northeast Florida; Jacksonville Chinese As-

sociation; Jiao Tong University Alumni Association-

Seattle; Kentucky Chinese American Association;

Kiddie Academy of Gontana; Legal Immigrant Asso-

ciation; Livingston Chinese Association; Long Island

Chinese American Association; Long Island School of

Chinese; Lung Kong Tin Yes Association; Memphis

Chinese School; Millburn-Short Hills Chinese Asso-

ciation; National Asian American PAC Michigan

chapter (80-20); National Asian American PAC FL;

National Federation of Indian American Association;

4

NC Beijinger; Noble Tree Publishing Inc.; North

America Career Express Association; North Ameri-

can Education and Culture; Northeast Chinese Asso-

ciation of Florida; Northern California Chinese Cul-

ture Athletic Federation; Northern California Hubei

Association; Overseas Chinese Association of Miami;

Pakistan Policy Institute; Pakistani American Vol-

unteers; Ray Chinese School; San Antonio Chinese

Alliance; San Diego Asian Americans For Equality;

San Dong Association; Shandong Fellowship Associa-

tion of South USA; Shandong Friendship Association

of California; Shou Chu Organization; Silicon Valley

Chinese Association Foundation; Silicon Valley

Women Alliance; Sillicon Valley Foundation for Bet-

ter Environment; Sino Professionals Association;

South Florida Chinese Business Association; South

Florida Sicuanren & Chonggingren Chinese Associa-

tion; South Main Toastmaster; Southwest University

of Finance and Economics American Aluminums;

Spring Source Eclucation Institute; Sunflower Learn-

ing Center; SV Huaren Performance and Arts Asso-

ciation; Taiwan Benevolent Association of Florida;

Taoist Institute of TCM; TeeterPal Little Friends

Parenting Community; Texas Guangdong Associa-

tion; Texas Northeast Chinese Association; The Chi-

nese Women's Club of Greater Miami; The Federa-

tion of Florida Chinese Association; The Korean As-

sociation of Greater Washington; The Orange Club;

Thuy Lowe for Congress Campaign; Tianjin Com-

merce Association USA Inc.; Tianmu Education

Foundation; U.S. China Chan Cultural Exchange

Association; UBC (United for a Better Community);

United Asian American for Activism; United Chinese

Association of Utah; US California Henan Associa-

tion; USTC Alumni Association of Greater New York;

5

USTC Alumni Association of Southern California;

USTC Alumni Foundation; UT Austin PGE Chinese

Alumni Association; Venus Chinese School; World

Federation of Chinese Traders Alumni-South Florida

Chapter; and the X3 Academy.

6

SUMMARY OF ARGUMENT

Amici are greatly distressed by and find offensive

the decision of the Fifth Circuit Court of Appeals (the

“Fifth Circuit”) upholding the race-based admission

program at the University of Texas at Austin (“UT”

or the “University”). Contrary to that court’s depic-

tion of the issue as “white” versus “minority,” in fact,

it is Asian American students, the members of a his-

torically oppressed minority, who comprise the group

most harmed by the program.

The evidence and common sense demonstrate

that the UT admission program at issue is nothing

other than forbidden racial balancing or, even worse,

potentially an effort by academic and political elites

to curry favor with a powerful voting bloc. Under the

Texas Ten Percent Plan, UT already had more His-

panic American students enrolled than Asian Ameri-

can students, but under the plan being challenged in

this case, UT insisted on giving preferences to His-

panic applicants, while disfavoring Asian American

applicants, demonstrating that the University was

not striving for “diversity” but racial balance.

The present discrimination against individuals

of Asian descent in UT admissions is particularly

troubling, in light of the long history of discrimina-

tion against Asian Americans, especially in educa-

tion. See, e.g., Joyce Kuo, Excluded, Segregated and For-

gotten: A Historical View of the Discrimination of Chinese

Americans in Public Schools, 5 Asian L. J. 181, 207-208

(May 1998).

It is disheartening to see the same type of dis-

criminatory program at UT today, where Asian

Americans are still being classified by race and con-

7

sidered not as valuable as other Americans because

of their race.

The recitation of Respondents and their amici of a

noble purpose behind the UT program should be giv-

en no weight. State officials have always argued

that their classification of individuals by race, and

discriminatory programs, were justified by im-

portant governmental purposes, and even the most

racist programs have found support with “experts,”

including ivory tower academics and even military

leaders. Yet, our country’s history has always, in the

end, demonstrated that classification and discrimi-

nation by race was a mistake.

In case after case, the single historical truth

that emerges is that the rights of Asian Americans—

and of all Americans—have been vindicated only by

strict application of the Fourteenth Amendment’s

protection of individual rights. That same rule is no

less valid today, and it directly applies to the situa-

tion in Texas.

For all of these reasons, the Court should find the

UT admission program to be unconstitutional. The

Court should also revisit and overrule its holding in

Grutter v. Bollinger, 539 U.S. 306 (2003), to make

clear that outside of narrowly tailored programs that

provide remedies to specific and proven victims of

race-based discrimination, race should not be used in

college admissions or any other setting.

8

ARGUMENT

I. Asian Americans, a Minority Group Repeat-

edly Victimized by Discrimination, Are the

Group Most Harmed by the University of

Texas Admissions Program—A Fact Not

Even Considered by the Fifth Circuit.

The Fifth Circuit approved the _ race-

determinative UT admissions program, but in its

analysis failed to consider the effect of the program

on the group most negatively burdened—<Asian

Americans. For this reason alone, the decision is

deeply flawed and should be reversed.2 The Fifth

Circuit erroneously described the issue as being

“white” versus “minority,” failing to consider that

Asian Americans, members of an ethnic minority

group, are the most harmed by the challenged pro-

gram. The Fifth Circuit stated, “Given the test score

gaps between minority and non-minority applicants,

if holistic review was not designed to evaluate each

individual's contributions to UT Austin’s diversity,

including those that stem from race, holistic admis-

sions would approach an all-white enterprise.” Fish-

er v. Univ. of Tex. at Austin, 758 F 3d 633, 647 (5th

Cir. 2014). If the Fifth Circuit’s failure to recognize

the burden of the UT program on Asian Americans

was inadvertent, and based on mistaken belief that

somehow Asian Americans are “white” and privi-

2 Contrary to this Court’s instruction, see Fisher v. Univ. of Tex.

at Austin, 133 S.Ct. 2419 (2013), the court below, while pretend-

ing otherwise, once again failed to apply true strict scrutiny,

deferring to UT officials’ opinions as to the purpose of the ad-

missions program, its necessity, and its effect on student appli-

cants, and ignoring all evidence to the contrary.

9

leged, shame on that court. If the failure was pur-

poseful, even more shame.

Contrary to the stated premise of the Fifth Cir-

cuit decision, white applicants do not have the high-

est average test scores; Asian Americans do. The

court demonstrated an alarming ignorance of the re-

ality of the multicultural and diverse society which it

purports to advance, and a shocking lack of sensitivi-

ty to the identity and experience of Americans of

Asian descent. In 2008, the student body at UT was

19% Asian American. Fisher v. Univ. of Tex. at Aus-

tin, 645 F. Supp. 2d 587, 606, n. 10 (W.D. Tex. 2009).

For Non-Top Ten Percent admittees, the SAT test

score average for Asian Americans was 1346 versus

1300 for whites; Asian American applicants also had

higher GPAs. See Implementation and Results of the

Texas Automatic Admissions Law: Demographic

Analysis of Entering Freshmen, Report 12, Tables 6a,

6c (UT Austin, Oct. 29, 2009).3

Therefore, it is Asian American applicants who

suffered the greatest harm under race-determinant

admissions policies.

The failure of the Fifth Circuit even to recognize

that the burden of the challenged program falls dis-

proportionately on Asian Americans, a minority

group historically harmed by racial discrimination,

demonstrates that its strict scrutiny analysis was se-

riously flawed and did not comport with this Court’s

clear requirements. See Fisher, 133 S.Ct. at 2419

(“Strict scrutiny is a searching examination”);

* Available at

http://www.lb5.uscourts.gov/Archived URLs/Files/09-

50822(2).pdf (last visited Sept. 8, 2015).

10

Adarand Constructors, Inc. v. Pena, 515 US 200, 227

(1995) (race classifications mandate “detailed judicial

inquiry’).

II. UT's Use of Race Deprives Asian Americans

of the Right To Be Judged As Individuals

and Not By the Color of Their Skin.

A. UT’s racial preference scheme has an in-

vidious effect on Asian Americans, whom

UT apparently considers inferior to other

races in achieving its skin-deep “diversi-

ty” objectives.

As this Court has repeatedly declared, “it de-

means the dignity and worth of a person to be judged

by ancestry instead of his or her own merit and es-

sential qualities.” Rice v. Cayetano, 528 U.S. 495, 517

(2000). Thus, even if UT’s race-conscious admissions

program were truly necessary, which it is not, it

would still demean Asian American individuals who

are discriminated against by the scheme. The harm

would simply be viewed as a necessary evil—the

breaking of a few innocent eggs to achieve the pur-

ported greater good. Going further, however, the ar-

guments UT and its supporters proffer to justify the

program insult and demean Asian Americans. UT

says its program is necessary to promote diversity

and achieve a “critical mass” of minority student

groups. However, under the challenged program,

Hispanic applicants are given preference because of

their race but applicants of Asian ancestry are dis-

criminated against, despite the fact that “the gross

number of Hispanic students attending UT exceeds

11

the gross number of Asian-American students at-

tending UT.” Fisher, 645 F.Supp. 2d at 606.

The finding of the Fifth Circuit that Hispanics are

insufficiently represented even though present in

larger numbers than Asian Americans means either:

(1) that court was wrong and there is a critical mass

of both; or (2) Asian Americans are not worth as

much as Hispanics in promoting “cross-racial under-

standing,” breaking down “racial stereotypes,” and

enabling students to “better understand persons of

different races.” Grutter, 539 U.S. at 329. The latter

dubious proposition is unsupported by anything in

the record. It is also racist.

B. Racial balancing for its own sake at-

tempts to mirror Texas demographics to

appease political power blocs.

The fact that UT already enrolls a greater num-

ber of Hispanic Americans than Asian Americans es-

tablishes that the admission program’s true purpose

cannot be the achievement of a “critical mass” of

Hispanic students. UT’s true goal is racial balanc-

ing—that is, making the student body mirror the ra-

cial composition of the State of Texas.

In 2008, the University’s student body was 20%

Hispanics and 19% Asian American; however, those

groups respectively represented 36% and 3.4% of the

Texas population. Fisher, 645 F.Supp. 2d at 606 and

n.10. In its 2004 proposal that led to the race-

conscious program at issue, the University admitted

its desire to mirror the state’s racial demographics:

“(Slignificant differences between the racial and eth-

12

nic makeup of the University’s undergraduate popu-

lation and the state’s population prevent the Univer-

sity from fully achieving its mission.” Proposal to

Consider Race and Ethnicity in Admissions at 24,

June 25, 2004. See Parties’ Supplemental Joint Ap-

pendix (“SJA”), 24a.

The University’s goal of racial balancing is pa-

tently unconstitutional. “We have many times over

reaffirmed that ‘[r]acial balance is not to be achieved

for its own sake.” Parents Inv. In Comm. Sch. v. Se-

attle School No. 1, 127 S.Ct. 2738, 2757 (2007) (citing

cases).

Ill. For Much of America’s History, Race-Based

Governmental Programs Have Been Used

To Oppress Asian Americans.

A. Repeatedly, federal court action was nec-

essary to compel local government bodies

to treat Asian Americans as human be-

ings.

The UT discrimination against Asian Americans

is particularly disheartening given the long history of

similar governmental programs and policies used to

oppress Asian American citizens of this great nation.

Whether malevolent in intent or facially benign,

these historical acts of governmental discrimination

were always, like the UT program at issue here, con-

sidered or claimed to be in the public interest by the

government officials who enacted them.

Throughout their history in this country, Asian

Americans have faced barriers and discrimination

because of their race. See, e.g., Charles McClain, Jn

13

Search of Equality (Univ. of Cal. Press 1994); Elmer

Clarence Sandmeyer, The Anti-Chinese Movement in

California (Univ. of Ill. Press 1991); Victor Low, The

Unimpressible Race (East/West Publishing Co.

1982). Their treatment was so dismal it gave rise to

the expression “a Chinaman’s Chance,” a term mean-

ing “having little or no chance of cucceeding.” News

Watch Diversity Style Guide, at

http://www.ciij.org/publications_media/20111205-

95034.pdf (last visited Aug. 3, 2015).

In just one example of the historical sentiment, in

People v. Hall, 4 Cal. 399, 404-05 (1854), the Califor-

nia Supreme Court, invalidating the testimony of

Chinese American witnesses to a murder, explained

that Chinese were “a distinct people ... whose men-

dacity is proverbial; a race of people whom nature

has marked as inferior, and who are incapable of

progress or intellectual development beyond a cer-

tain point, as their history has shown; differing in

language, opinions, color, and physical conformation;

between whom and ourselves nature has placed an

impassable difference.”

Time and time again, Asian Americans have had

to appeal to the federal courts for vindication of their

rights under the Fourteenth Amendment to the

United States Constitution. Over the past century

and a half, these cases nave contributed significantly

to the development of equal protection jurisprudence.

In Ho Ah Kow v. Nunan, 12 F. Cal. 252 (C.C.D.

Cal. 1879) (No. 6,546), a district court invalidated

San Francisco’s infamous “Queue Ordinance” on

equal protection grounds.

14

In In re Ah Chong, 2 F. 733 (C.C.D. Cal.1880), the

court found unlawful an act forbidding Chinese

Americans from fishing in California waters.

In Jn re Tiburcio Parrott, 1 F. 481 (C.C.D. Cal.

1880), the court declared unconstitutional a provi-

sion of California’s 1879 constitution that forbade

corporations and municipalities from hiring Chinese.

In 1882, in an extraordinary and shameful attack on

equal protection, Congress passed the Chinese Ex-

clusion Act, the first national law enacted to prevent

an ethnic group from immigrating to the United

States. See Chinese Immigration and the Chinese

Exclusion Acts, at https://history.state.gov/milestones

/1866-1898/chinese-immigration (last visited Sept. 7,

2015). Fueled by anti-Chinese hysteria and support-

ed by a broad spectrum of leaders and society of the

time, it prohibited all entry of Chinese laborers. /d.

The Act was not repealed until 1943. Jd. As aptly de-

scribed by opponent Republican Senator George

Frisbie Hoar in 1882, this Act was “nothing less than

the legalization of racial discrimination.” Jd.

In Yick Wo v. Hopkins, 118 U.S. 356 (1886), this

Court ruled that Chinese were “persons” under the

Fourteenth Amendment and could not be singled out

for unequal burden under a San Francisco laundry

licensing ordinance.

In In re Lee Sing, 43 F. 359 (C.C.D. Cal. 1890),

the court found unconstitutional the “Bingham Ordi-

nance,” which mandated residential segregation of

Chinese Americans.

In United States v. Wong Kim Ark, 169 U.S. 649

(1898), this Court ruled that a Chinese American

15

boy, born in San Francisco to parents of Chinese de-

scent who were lawfully domiciled in the United

States, could not be prevented by local officials from

returning home after a trip abroad.

One of the most egregious modern infringements

of the constitutional rights of Asian Americans oc-

curred during World War II when, pursuant to pres-

idential and military orders and supported by the

statements of “experts,” entire families of Japanese

Americans were removed from their West Coast

homes and placed in internment camps.‘ Now, of

course, it is universally acknowledged that there was

no justification for this abrogation of the rights of

American citizens. See Korematsu, 584 F.Supp. at

1420; Hirabayashi v. United States, 828 F.2d 591

(9th Cir. 1987).

The lesson taught, time and again, is that, in cas-

es such as the one before it now, this Court should be

extremely wary of the statements of the government

officials and luminaries who line up to support a pro-

4 Executive Order No. 9066 was issued on February 19, 1942. It

authorized the Secretary of War and certain military com-

manders “to prescribe military areas from which any persons

may be excluded as protection against espionage and sabotage.”

Congress enacted § 97a of Title 18 of the United States Code,

making it a crime for anyone to remain in restricted zones in

violation of such orders. Military commanders then, under color

of Executive Order No. 9066, issued proclamations excluding

Japanese Americans from West Coast areas, and sending them

to internment camps. See Korematsu v. United States, 584 F.

Supp. 1406, 1409 (N.D. Cal. 1984). History suggests that mili-

tary commanders of any given era, regardless of their personal

qualities and abilities in planning and waging war, should not

be considered experts about whether or not race should or can

be used to treat individual Americans differently.

16

gram of racial discrimination. Such proffered justifi-

cations for the infringement of indivilual rights have

never stood the test of time.

B. Historical Discrimination Against Asian

Americans in Education

As this Court has recognized, discrimination

against Asian American schoolchildren has a long

and shameful history, beginning with outright exclu-

sion, then tracking the evolution of the “separate but

equal” doctrine us applied to education, and finally

evolving into racial balancing schemes such as the

one at issue here.

In Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885), the

court had to order San Francisco public schools to

admit a Chinese American girl who was denied entry

because, as stated by the State Superintendent of

Public Instruction, public schools were not open to

“Mongolian” children. See McClain, supra, at 137. In

response, the California legislature authorized sepa-

rate “Chinese” schools to which Chinese American

schoolchildren were restricted by law until well into

the twentieth century. See Ho, 147 F.3d at 864; see

also Kuo, supra, at 207-208.

Asian American schoolchildren were some of the

earliest victims of “separate but equal” jurisprudence

as it related to education. In Wong Him v. Callahan,

119 F. 381 (C.C.N.D. Cal. 1902), the district court

denied a child of Chinese descent the right to attend

his neighborhood school in San Francisco, reasoning

that the “Chinese” school in Chinatown was “sepa-

rate but equal.” /d. at 382.

In Gong Lum v. Rice, 275 U.S. 78 (1927), this

Court affirmed that the separate-but-equal doctrine

17

articulated in Plessy v. Ferguson, 163 U.S. 537

(1896), applied to schools, finding that a nine-year-

old Chinese American girl in Mississippi could be

denied entry to a “white” school because she was of

the “yellow” race. Rice at 87.

Thus, in Lee v. Johnson, 404 U.S. 1215 (1971),

Justice Douglas wrote that California’s “establish-

ment of separate schools for children of Chinese an-

cestry .. . was the classic case of de jure segregation

involved [and struck down] in Brown v. Board of Ed-

ucation, 347 U.S. 483 [1954]....” Id. at 1216. “Brown

v lon Ww oO fe cks

alone. It j the

Fo th Amen t laries

of which were the Chinese people of San Francisco.”

Lee, 404 U.S. at 1216 (emphasis added).

IV. Today, Supposedly Benign Racial Balancing

and Diversity Policies Insidiously Discrimi-

nate Against Asian American Students Na-

tionwide.

A. The Ho Case — Modern Day Discrimina-

tion in San Francisco.

Unfortunately, efforts to discriminate against

Asian American students did not end with Brown v.

Board of Education. Today, schools at all levels are

using supposedly “benign” racial balancing or diver-

sity programs to discriminate against Asian Ameri-

can applicants solely because of their ethnicity.

Ironically, the most striking modern-day example

of such “good-intentioned” discrimination against

Asian American students occurred in San Francisco,

California—in the state where much of the historical

18

discrimination against Asian Americans took place.

The case provides useful lessons, both in terms of the

skepticism that should be given purported justifica-

tions for the use of race and also in the adverse im-

pact on the community and affected individual stu-

dents and families.

In Ho v. San Francisco Unified School District,

filed in 1994, San Francisco's Chinese American

schoolchildren fought a five-year battle to halt the

school district’s policy of assigning them to the city’s

K-12 schools on the basis of their race. See Ho, 147

F.3d 854; Ho v. San Francisco Unified Sch. Dist., 59 F.

Supp. 2d 1021 (N.D. Cal. 1999) (on remand); Ho v. San

Francisco Unified Sch. Dist., 965 F.Supp. 1316

(1997) (decision giving rise to appeal in 147 F.3d

854). Amicus curiae AALF was founded to organize

the Ho litigation after all other efforts to achieve

equality failed.

In Ho, the plaintiff class challenged a consent-

decree-mandated racial balancing scheme imposed in

San Francisco NAACP v. San Francisco Unified Sch.

Dist., 576 F.Supp. 34 (N.D. Cal. 1983). Without any

finding of a constitutional violation to remedy, school

officials set up a racial balancing scheme with the

stated goals of preventing “racial isolation” and

providing “academic excellence.” See Ho, 965 F.Supp.

at 1322; see also Ho, 147 F.3d at 859; San Francisco

NAACP, 576 F.Supp. at 40-42, 58. Filled with zeal

for their vision of racial engineering, the proponents

ignored that the San Francisco school district was

already and naturally one of the most ethnically di-

verse in the nation.

Under San Francisco's admissions program,

nine ethnic groups (later enlarged to thirteen) were

19

arbitrarily defined, including “Chinese”; and “caps”

were imposed to insure that no one group would rep-

resent more than 45 percent of the student body at

any regular school or 40 percent at an alternative

school. See id.; see also Ho, 147 F.3d at 856-58. As

they were the largest racially identifiable group in

the city, the burden of the system of quotas and caps

fell heaviest on students identified as “Chinese,” who

were often unable to gain entrance to their own

neighborhood schools or to desirable magnet schools.

See David I. Levine, The Chinese American Challenge to

Court-Mandated Quotas in San Francisco's Public Schools:

Notes from a (Partisan) Participant-Observer, at 55-56, 16

Harv. BlackLetter J. 39 (Spring 2000).

Also, making matters worse at some schools, the

district adopted a policy of granting preferences to

applicants classified as “Hispanic” or “African Amer-

ican,” See Ho, 147 F.3d at 858.

The named plaintiffs’ stories amply illustrate the

discrimination:

e Brian Ho was five years old. He was turned

away from his two neighborhood kindergartens be-

cause the schools were “capped out” for “Chinese”

schoolchildren. He was assigned to a school in anoth-

er neighborhood. See Levine, supra, at 61.

e Patrick Wong, then fourteen years old, applied

for admission to Lowell High School, a selective

magnet school. He was rejected because his index

score was below the minimum required for “Chinese”

applicants, even though the score would have gained

admission had he been a member of any other ethnic

group. He was then rejected at three other high

20

schools because such schools were “capped out” for

“Chinese.” Id.

e Hillary Chen, then eight years old, was not al-

lowed to attend any of three elementary schools near

her home because all three schools were “capped out”

for “Chinese” schoolchildren. Id.

As this Court warned in Richmond v. Croson, 488

U.S. 469 (1989), San Francisco schoolchildren were

stigmatized by the district’s use of race. See Croson

at 493 (use of race promotes feelings of “racial inferi-

ority” and “racial hostility”). As stated by the parent

of one student turned away because of his ethnicity,

“He was depressed and angry that he was rejected

because of his race. Can you imagine, as a parent,

seeing your son’s hopes denied in this way at the age

of 14?” Julian Guthrie, S.F. School Race-Bias Case

Trial Starts Soon, San Francisco Examiner, at C-2

(Feb. 14, 1999).

As Lee Cheng, Secretary of AALF, testified in

hearings held by the U.S. House of Representatives,

Sub-Committee on the Constitution:

Many Chinese American children have inter-

nalized their anger and pain, confused about

why they are treated differently from their

non-Chinese friends. Often they become

ashamed of their ethnic heritage after conclud-

ing that their unfair denial is a form of pun-

ishment for doing something wrong.

Group Preferences and the Law, U.S. House of Rep-

resentatives Sub-Committee on the Constitution

Hearings (June 1, 1995), p. 241, at

http://www.archive.org/stream/grouppreferencesO0Oun

it/grouppreferencesOOunit_djvu.txt (last visited Sept.

1, 2015).

21

Another insidious byproduct of San Francisco's

racial balancing plan was “rampant dishonesty” by

parents of all races who misreported children’s racial

identity to gain admission to desired schools. (This

behavior perhaps can be more fairly characterized as

civil disobedience against injustice.) See Michael

Dorgan, Desegregation or Racial Bias?, San Jose

Mercury, at 1A (June 5, 1995). “[S]ome black families

in Bayview-Hunter’s Point have gone so far as to

take Hispanic surnames to protect their children

from busing.” Jd. at 10A. “People know if they want

to go to a particular school that has a lot of Cauca-

sians, they should put down something other than

Caucasian, and they do.” Jd. at 10A (quoting then

School Board President Dan Kelly).®

After five years of vigorous litigation, and after

the district court and the Ninth Circuit Court of Ap-

peals had emphasized to defendants that under the

strict scrutiny standards set by this Court, they

would lose at trial, the SFUSD agreed to cease its

use of race in admissions. See Ho, 59 F.Supp. 2d at

1024-25.

B. Continuing Legislative Battles in Cali-

fornia Over Use of Race in Education.

Based on their experience with the San Francisco

school district in the Ho case, founding members of

AALF also worked to pass Proposition 209, a Cali-

fornia voter initiative that added Article I Section 31

to the State Constitution. Section 31 provides, “The

State shall not discriminate against, or grant prefer-

5 The school enrollment forms threatened parents with “per-

jury” if they misreported the race of their child. See Ho, 147

F.3d at 862.

22

ential treatment to, any individual or group on the

basis of race, sex, color, ethnicity, or national origin

in the operation of public employment, public educa-

tion, or public contracting.” Cal. Const. Art. I § 31(a).

This provision forbids all state schools and universi-

ties from considering race in admissions.

Both the remedy secured in Ho and the prohibi-

tion on use of race of Section 31 remain under attack

by proponents of racial engineering. San Francisco

school officials who favor use of race raise the possi-

bility of reinstituting race-based admissions every

time a new Supreme Court case surfaces that might

offer them support. See e.g., Bob Egelko, Heather

Knight, SCHOOLS, Justices Take Cases On Race-

Based Enrollment, San Francisco Chronicle, at B-1

(June 6, 2006) (“If the Supreme Court upholds the

Seattle system ... Prop. 209 is a moot point... Federal

laws would override a state initiative.” (quoting then

board member Mark Sanchez).)

In 2014, California’s citizens of Asian descent

were forced to mobilize to defeat yet another attempt

to re-introduce racial preferences in education. On

January 30, 2014, the California State Senate passed

California Senate Constitutional Amendment No.5

(“SCA-5”). See http://leginfo.legislature.ca.gov/ fac-

es/billTextClient.xhtm]?bill_id=201320140SCAS5 (last

visited Sept. 8, 2015). This proposition, if enacted,

would have amended the California Constitution to

allow the use of race in public education and would

have removed schools and universities from the am-

bit of Section 31. Jd. Asian Americans, including

constituents of AALF, and AACE and its supporting

organizations campaigned vigorously against the

measure, gathering more than 112,000 signatures in

23

a matter of weeks. Dan Walters, “Asian-Americans

opposing undoing Prop. 209,” San Diego Union Trib-

une (March 14, 2014).

After SCA-5 was sent by the Assembly back to the

Senate, several key senators who had backed the

measure bowed to the unexpected groundswell of op-

position and withdrew their support, asking that the

bill be placed on hold. At their request, State Sena-

tor Ed Hernandez, the author of SCA-5, withdrew

the bill from consideration on March 17, 2014. See

Kate Murphy, California Affirmative Action Revival

Bill Is Dead (San Jose Mercury News, March 18,

2014) at http://www.mercurynews.com/education/

ci_25361339/california-affirmative-action-challenge-

is-dead? (last visited August 30, 2015). The slightest

relaxation of vigilance, however, is likely to see this

bill revived. “I'd like to bring it back,’ Hernandez

said. T believe in it.” Jd. Asian American victims of

discrimination ask that this Court not embolden

Senator Hernandez and his allies to do that.

C. Are Asian Americans the New Jews?

In an eerie historical parallel, Asian American

applicants to elite colleges and universities today ap-

parently face the same informal quotas faced by

Jews who applied to Harvard College and other pres-

tigious institutions during the first half of the 20th

century. Beginning in the 1920s, Harvard College

and other prominent colleges and universities react-

ed to the perceived “over-representation” of Jews in

their student bodies by setting up quotas for appli-

cants of the Jewish faith that persisted through the

1950s. See Evan P. Schultz, Group Rights, American

Jews, and the Failure of Group Libel Laws, 66 Brook.

24

L. Rev. 71, 111-12 (Spring 2000); Alan M. Dershowitz

and Laura Hanft, Affirmative Action and the Har-

vard College Diversity-Discretion Model: Paradigm or

Pretext, 1 Cardozo L. Rev. 379, 385-399 (1979); Na-

than Glazer, Diversity Dilemma, The New Republic

(June 22, 1998). “In the 1930s, it was easier for a Jew

to enter medical school in Mussolini’s Italy than in

Roosevelt's America.” Lawrence Siskind, Racial

Quotas Didn't Work in SF Schools, op-ed, San Fran-

cisco Examiner (July 6, 1994).

® The arguments supporting the historical and modern-day ra-

cial balancing schemes are virtually identical. “President Low-

ell of Harvard called [the Jewish quota] a ‘benign’ cap, which

would help the University get beyond race.” Jerry Kang, Nega-

tive Action Against Asian Americans: The Internal Instability Of

Dworkin’s Defense Of Affirmative Action, 31 Harv. C.R.-C.L. L.

Rev. 1, 36 (Winter 1996). In the Ho case, proponents argued:

“(T]he Chinese are the largest group at most of the best schools

in the city. They can’t have it all. If anything, I'd say lower the

caps, don't raise them—-otherwise we're headed back to segre-

gated schools, only all Chinese instead of all white.” Selana

Dong, “Too Many Asians”: Challenge of Fighting Discrimination

Against Asian-Americans and Preserving Affirmative Action, 47

Stan. L. Rev. 1027, 1057 n.36 (May 1995) (citation omitted)

(quoting Lulann McGriff, former president of San Francisco

NAACP); see also Levine, supra, at 138. And, today, the same

arguments are used to justify turning away Asian American

individuals from the nation’s universities. See Glazer, supra;

Dong, supra, at 1057, nn.4-5; Leo Rennert, President Embraces

Minority Programs, Sacramento Bee (Metro Final) at Al (April

7, 1995) (reporting that former President Clinton said that

without race-based admissions “there are universities in Cali-

fornia that could fill their entire freshman classes with nothing

but Asian Americans”). “Today's ‘damned curve raisers’ are

Asian Americans ....” Kang, supra, at 47 n.189 (cites and inter-

nal quotation marks omitted). Again, quotas promoting “diver-

sity” are seen as the answer. See Pat K. Chew, Asian Ameri-

25

Since the 1920s, things have come full circle but this

time with Asian Americans as the target. On May

15, 2015, Amicus Curiae AACE, representing a coali-

tion of more than 60 Asian American organizations,

filed a complaint with the Office for Civil Rights, De-

partment of Education and the Civil Rights Division,

Department of Justice, alleging that Harvard Col-

lege, as it once did with Jewish applicants, now im-

poses de facto quotas for Asian Americans. See

http://www.asianamericancoalition.org/

files/harvard/AisanComplaintHarvardDocumentFina

l.pdf (last visited Sept. 7, 2015). As reported May 19,

2015 in the Wall Street Journal, “Citing several aca-

demic studies, the complaint notes that Asian Amer-

icans have some of the highest academic credentials

but the lowest acceptance rates at the nation’s top

schools, a result that the coalition attributes to ‘just-

for-Asians admissions standards that impose unfair

and illegal burdens on Asian-American college appli-

cants.” Jason P. Riley, The New Jews of Harvard

Admissions (Wall Street Journal, May 19, 2015).

The AACE complaint highlights compelling evi-

dence that Harvard and other elite colleges discrimi-

nate against undergraduate Asian American appli-

cants to maintain their informa! quotas.

An extensive study of the admission process at

prestigious colleges by Daniel Golden, Pulitzer Prize-

winning Wall Street Journal reporter, found wide-

spread discrimination against Asian American appli-

cants. See Daniel Golden, The Price of Admission:

cans: The “Reticent” Minority and Their Paradoxes, 36 Wm. &

Mary L. Rev. 1, 61-64 (Oct. 1994).

26

How America’s Ruling Class Buys Its Way into Elite

Colleges—and Who Gets Left Outside, Chapter 7: The

New Jews (Three Rivers Press, 2007); AACE Com-

plaint at 11-12. According to Golden’s quantitative

analysis, Harvard and other elite schools use meth-

ods including negative stereotypes, such as “being

quiet,” “focusing on math and science,” and “play[ing]

a music instrument” to downgrade Asian American

applicants in holistic reviews. He concludes that

most elite universities maintain a triple standard in

college admissions, setting the bar highest for Asian

Americans, next for whites and lowest for blacks and

Hispanics. Id.

As reported in their 2009 book, No Longer Separ-

ate, Not Yet Equal, Princeton researchers Thomas J.

Espenshade and Alexandra Radford examined ex-

haustive application data from three elite public and

four elite private colleges and found that Asian

American applicants have 67% lower odds of admis-

sion than white applicants with comparable test

scores. AACE Complaint at 12. “They found that

when applying to top private universities an Asian-

American student has to score 140 points higher

than a White student, 270 points higher than a His-

panic student and 450 points higher than a Black

student on the SAT to be on equal footing.” Put an-

other way, if a top private university such as Har-

vard accepts white students with an SAT mean score

of 2160, its mean score for accepting Asian-American

7 Illustrating the absurd nature of the discrimination, a mixed

race applicant of both Asian and white descent would obtain a

140 point advantage (over “Asian” applicants) simply by check-

ing the “white” box on the application.

27

students would be 2300, 140 additional points.” Jd. at

13.

The complaint cites similar findings by re-

searcher Ron Unz. See Ron Unz, The Myth of Ameri-

can Meritocracy: How Corrupt are Ivy League Admis-

sions?, pgs. 14-51 (The American Conservative, Dec.

2012), at http://www.theamericanconservative.com/

artcles/the-myth-of-american-meritocracy/ (last visit-

ed Sept. 6, 2015); AACE Complaint at 13. Compar-

ing population growth of college-age Asian Ameri-

cans, the Asian American enrollment of Harvard and

other Ivy League Colleges, Unz found, “the share of

Asians at Harvard peaked at over 20 percent in

1993, then immediately declined and thereafter re-

mained roughly constant at a level 3—5 points lower.”

Id. He found this particularly suspicious considering

that the underlying population of Asian Americans

had throughout this period been growing at the fast-

est pace of any American racial group, increasing by

almost 50 percent during the last decade and more

than doubling since 1993. Id. At the same time that

Asian American academic achievement was shooting

upward, “the relative enrollment of Asians at Har-

vard was plummeting, dropping by over half during

the last twenty years, with a range of similar de-

clines also occurring at Yale, Cornell, and most other

Ivy League universities.” Id.

As history shows, such artificial attempts to

mandate a racially balanced student body invariably

mean discrimination. See Dershowitz & Hanft, su-

pra, at 399 (“Both then and now ... such unlimited

discretion makes it possible to target a specific reli-

gious or racial group—then for decrease, and now for

increase ....”). In Brown v. Board of Education, 347

28

U.S. 483, this Court recognized the inherent injury

when schools assigned students on the basis of race,

whatever the stated purpose. That same reasoning

should apply today.

Certainly, to the extent that individual students

of some ethnic groups are found to be underrepre-

sented, local governments may take measures to

bring about meaningful change, such as improving

K-12 education in disadvantaged communities, sup-

plemented with reasonable affirmative action pro-

grams that use race-neutral criteria such as socio-

economic factors and other’ constitutionally-

permissible means. However, other than as a remedy

for de jure discrimination, it is a mistake to allow

schools to grant racial preferences to individuals of

favored groups or to single individuals of disfavored

groups out for unfair burden—something that always

demeans the individual while never achieving lasting

change.

V. The Fifth Circuit Erred In Not Recognizing

That The Top Ten Percent Plan Had Already

Achieved A “Critical Mass.”

“(S]trict scrutiny imposes on the university the

ultimate burden of demonstrating, before turning to

racial classifications, that available, workable race-

neutral alternatives do not suffice.” Fisher, 133 S.Ct.

at 2420. Here, there was no need to use racial classi-

fications because under Texas’ Top Ten Percent Plan,

the University had already achieved a critical mass

29

of minority students.® See Tex. Educ. Code § 51.803

(1997).

The Top Ten Percent Plan is the result of a His-

panic American summit that took place in 1996:

At a “Hispanic Summit on Affirmative Action

Policies” organized by Senator Barrientos on

September 6, 1996, two plans to enhance cam-

pus diversity were introduced which would

eventually be combined to form the Texas Ten

Percent Plan.

See Nicholas Webster, Democratic Merit Project,

Analysis of the Texas Ten Percent Plan (Kirwan In-

stitute for the Study of Race and Ethnicity, Feb. 8,

2007) at 4.

By the time of Fisher's application to UT, the

Top Ten Percent Plan had ensured significant minor-

ity enrollment in Texas’ top universities, including

UT. In 2004, the combined African-American and

Hispanic enrollment at UT was 21.4% (African-

American 4.5% and Hispanic 16.9%), and the total

non-white population rose to nearly 43% of the in-

coming freshman class. See Plaintiffs Statement of

Facts in Support of Motion for Partial Summary

Judgment (Doc. 94-2) at 13 (W.D. Tex. Jan. 23,

2009); Petition Appendix (“App.”), 166a.

8Amici AALF and AACE do not necessarily support the Top Ten

Percent Plan, largely because while race-neutral in form, it was

created and implemented specifically to achieve racialist re-

sults. Rather, they note that it had undoubtedly already

achieved the critical mass of targeted minorities the University

says it desired in a clearly more narrowly tailored, less consti-

tutionally suspect manner.

30

These substantial levels of minority enrollment

show that the Top Ten Percent Plan had already

achieved “critical mass” of minority representation at

UT—without the need for the program at issue here.

The critical mass exceeded that approved at the Uni-

versity of Michigan Law School in Grutter. See Grut-

ter, 539 U.S. at 329; Fisher, 758 F. 3d at 656 (J. Gar-

za, dissenting).

UT insults African and Hispanic American stu-

dents admitted through the Top Ten Percent Plan by

pretending that diversity requires minority students

from majority-white schools. See Fisher, 758 F. 3d.

at 653. Nothing in equal protection jurisprudence

supports such a “diversity within diversity” justifica-

tion for use of race, especially not one that, as here,

was fabricated during the course of the litigation.®

Clearly, the evidence is overwhelming that the

Top Ten Percent Plan had already achieved a critical

mass of minority students, leaving no legal basis for

a race-conscious admission program, especially one

causing harm to Asian Americans, a historically dis-

advantaged minority group. With the “ultimate bur-

den” on UT to show otherwise, Fisher, 133 S.Ct. at

2420, the University utterly failed to carry its bur-

den.

* As Justice Garza aptly point out in his dissent, “[T]he

University asks this Court to assume that minorities admitted

under the Top Ten Percent Law do not demonstrate "diversity

within diversity" ... But it offers no evidence in the record to

prove this, and we must therefore refuse to make this assump-

tion. Fisher, 758 F 3d. at 670.

31

VI. It Has Historically Been A Mistake To Defer To

The Opinions Of Officials, Experts and Other

Luminaries Who Support Racial Classifica-

tions

All of the historical cases in which officials, ex-

perts and other luminaries supported the use of race

for non-remedial purposes teach that it was a mis-

take to give weight to their blandishments.

In Plessey v. Ferguson, 163 U.S. 537 (1896), this

Court accepted the view that, even though all per-

sons are equal before the law, the public good al-

lowed the use of “distinctions based upon color.” The

lone dissenter, Justice John Harlan, wrote: “Our

Constitution is color-blind, and neither knows nor

tolerates classes among citizens.... In my opinion,

the judgment this day rendered will, in time, prove

to be quite as pernicious as the decision made by this

tribunal in the Dred Scott case ....” Jd. at 558. His-

tory proved Justice Harlan to be right.

In Brown v. Board of Education, 347 U.S. 483,

this Court properly rejected arguments by state offi-

cials from Kansas, Delaware, Virginia and South

Carolina that black and white children learned bet-

ter in a single-race environment, and for societal

purposes could be kept separate by state mandate.

Expressly rejecting any contrary findings regarding

“psychological knowledge” made in Plessey v. Fergu-

son, the Court found that use of race produces a

“sense of inferiority.” “We conclude that, in the field

of public education, the doctrine of ‘separate but

equal’ has no place.” Brown, at 494-495.

Today, it is universally acknowledged that the

Roosevelt administration and military authorities

32

infringed the constitutional rights of Japanese Amer-

icans when, during World War II, the government

placed entire families under curfew, then removed

them from their West Coast homes and placed them

in internment camps. Yet, at the time, the courts de-

ferred to opinions by administration and military of-

ficials that such use of race was necessary in the na-

tional interest.

In Hirabayashi v. United States, 320 U.S. 81, this

Court affirmed the conviction of an American citizen

found guilty of violating the curfews imposed on Jap-

anese Americans. In Korematsu v. United States,

323 U.S. 214 (1944), this Court upheld the conviction

of an American citizen of Japanese descent, who had

violated an exclusion order by remaining in his San

Leandro, California home, rather than report for in-

carceration in an internment camp. The courts at all

levels deferred to declarations by officials and mili-

tary authorities that such discrimination by race was

necessary to advance compelling government inter-

ests. Id. 217-219.'° Amicus briefs submitted by the

states of Oregon, Washington and California, urged

and supported the discrimination. See Korematsu v.

United States, 583 F. Supp 1406, 1423 (N.D. Cal.

1984).

Much later, of course, it was acknowledged that

this Court should not have deferred to the self-

serving statements by government and military offi-

cials; and that there had never been a national ne-

‘0 “It was uncontroverted at the time of conviction that [Fred

Korematsu] was loyal to the United States and had no dual al-

legiance to Japan. He had never left the United States. He was

registered for the draft and willing to bear arms for the United

States.”"Korematsu, 584 F. Supp. at 1409.

33

cessity requiring the use of race. See Korematsu, 584

F.Supp. at 1420; Hirabayashi v. United States, 828

F.2d 591 (9th Cir. 1987). The 1980 Commission on

Wartime Relocation and Internment of Civilians

found that the curfew and exclusion orders had been

motivated by “racism” and “hysteria” and not “mili-

tary necessity.” See Korematsu, 584 F.Supp. at 1416.

“(T]he government deliberately omitted relevant in-

formation and provided misleading information in

papers before the court.” Jd. at 1420.

In the Ho case, the district court had deferred

throughout to the statements of experts, overriding

the expressed concerns of parents. The court even

rejected the appeals of black parents from the

Bayview/Hunter’s Point neighborhoods, who argued

that the racial balancing plan would destroy neigh-

borhood schools where they took “pride in the aca-

demic achievements” of their children. See San Fran-

cisco NAACP, 576 F.Supp. at 49. The court acknowl-

edged “that the children at Drew School and Pelton

School to some extent are being asked to make sacri-

fices,” but explained that pedagogical experts had

concluded the “desegregation” benefits would ulti-

mately make their sacrifices worthwhile. Jd.

In fact, by the time the Ho plaintiffs forced the

end of the racial balancing scheme, even proponents

were forced to admit that nothing had been accom-

plished other than racial balancing. “Fourteen years

of experience with the Consent Decree have estab-

lished that while it has met its goal of de facto deseg-

regation, it has been a failure at accomplishing its

primary purpose of achieving academic excellence for

all ethnic groups.” See Grand Jury Report, The San

Francisco Unified School District, at

34

http://civilgrandjury.sfgov.org/1996_1997/The_San_F

rancisco_Unified_School_District_9697.pdf (last vis-

ited Sept. 8, 2015) (San Francisco Civil Grand Jury

Report, 1996-97). The Grand Jury in particular

found that racial balancing had not worked for His-

panic and African American students, whose aca-

demic scores were “lower than those of comparable

students around the country ...” Jd. at IV. And, only

one of San Francisco’s schools, the magnet Lowell

High School (the alma mater of the majority of the

founders of amicus curiae AALF), still had meaning-

ful parental involvement. Jd. n.12.

Referring to the Hirabayashi and Korematsu cas-

es, Justice Powell wrote, “Only two of this Court's

modern cases have held the use of racial classifica-

tions to be constitutional.” Fullilove v. Klutznick, 448

U.S. 448, 507 (1980) (Powell, J., concurring).!! Ironi-

cally, those two cases were later joined by a third--

Grutter v. Bollinger, 539 U.S. 306 (2003)--where

“(t]he Court also heeded the judgment of amici curi-

ae—including educators, business leaders and the

'! Justice Powell's statement in Regents of the University of Cal-

ifornia v. Bakke, 438 U.S. 265 (1978), that in certain hypothet-

ical circumstances diversity could rise to a compelling govern-

ment interest does not constitute a third prior holding support-

ing race by this Court. As the University of California Medical

School admission program then at issue was found unconstitu-

tional, his statement was dicta expressed in an opinion ascribed

to only by Justice Powell. See 438 U.S. at 272, 320. It is also

interesting to note that Justice Powell’s dicta expressly lauded

Harvard College’s “soft” diversity-discretion model of affirma-

tive action as constitutionally preferable to the strict, “hard”

quota system utilized by the University of California, failing to

consider that the Harvard Plan had anti-Semitic roots, being

designed to restrict enrollment of Jewish students. Kang, su-

pra, at 36.

35

military—that racial diversity constituted a compel-

ling government interest justifying the use of race in

admissions.” See Parents Inv. In Comm. Sch. v. Seattle

School No. 1, 426 F.3d 1162, n.13; Grutter, 539 U.S. at

330-331.

Once again, officials and experts support the use

of race, arguing that U'T’s use of race in admissions

was somehow needed to advance a compelling inter-

est in diversity--while ignoring the clear evidence

that, not only had Texas’ Top Ten Percent Plan al-

ready provided the sought-after diversity but that

the UT program actually limited the diversity that

would otherwise be provided by Asian American stu-

dents, who were less well represented in the student

body than Hispanic students, one of the groups

granted preferences.

If this Court wishes to learn from negative histo-

ry, rather than repeating it, it should reject the poor-

ly-advised or self-serving statements of the experts

and luminaries who, once again, support the use of

race to infringe individual rights.

VIL. This Court Should Re-Establish The Bright-

Line Rule Reserving Use of Race For Remedial

Settings.

That this case is before this Court for the second

time illustrates the danger of allowing race-based

college admissions for any purpose other than to pro-

vide a remedy for previous de jure discrimination.

Diversity is “simply too amorphous, too insubstan-

tial, and too unrelated to any legitimate basis for

employing racial! classifications....” Metro Broadcast-

ing, Inc. v. FCC, 497 U.S. 547, 612 (1990) (O’Connor,

J., dissenting). As this case amply shows, if they are

36

allowed to use diversity as the justification, it is all

too easy for school officials to justify any race balanc-

ing program by concocting (here, mostly after the

fact) ambiguous and ill-defined pedagogical goals,

backed by the self-serving statements of state offi-

cials and their allied experts.

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

this Court’s jurisprudence taught that the Four-

teenth Amendment’s stricture on the state’s use of

race was absolute, except where such action was nec-

essary to further the compelling government interest

of vindicating the rights of individuals who had been

subjected to prior racial discrimination. As this

Court warned in Croson, 488 U.S. 469, unless racial

classifications are “reserved for remedial settings,

they may in fact promote notions of racia! inferiority

and lead to the politics of racial hostility.” Jd. at 493.

As explained by the dissent in Metro Broadcasting,

497 U.S. 547, later vindicated by this Court in

Adarand, 515 U.S. 200, “[mJodern equal protection

doctrine has recognized only one such interest: rem-

edying the effects of racial discrimination.” Metro

Broadcasting, 497 U.S. at 612 (O’Connor, J., dissent-

ing).

It is a noble endeavor to help disadvantaged indi-

viduals regardless of race—and that is what local

government bodies and universities should do. How-

ever, amici submit that government bodies should

never (outside of a remedial setting) be allowed to

classify individuals by race for unequal burden in

student admissions. “Classifications of citizens solely

on the basis of race are by their very nature odious to

a free people whose institutions are founded upon

the doctrine of equality.” Shaw v. Reno, 509 U. S.

37

630, 643 (1993) (internal quotes omitted). Thus, as

this Court stated in Adarand, there really can be no

“benign” racial classifications. “[A]ll governmental

action based on race ... should be subjected to de-

tailed judicial inquiry to ensure that the personal

right to equal protection of the laws has not been in-

fringed.” Adarand, 515 U.S. at 227 (emphasis added).

While the Fourteenth Amendment protects individu-

als from racial discrimination, there is no counter-

vailing principle that should subordinate individual

rights to a university's perceived and arbitrary need

for some ethnic mix constituting “diversity.”

This Court has wisely cautioned against uphold-

ing race-conscious programs that are “ageless in

their reach into the past, and timeless in their ability

to affect the future.” Croson, 488 U.S. at 498 (inter-

nal quotation marks omitted) (quoting Wj gant v. Jack-

son Board of Education, 476 U.S. 267, 276 (1986)); see also

Adarand, 515 U.S. at 238. Indeed, in Grutter, the

Sixth Circuit correctly acknowledged that, at the

University of Michigan Law School, the University’s

use of race would continue indefinitely, because

“{u}nlike a remedial interest, an interest in academic

diversity does not have a self-contained stopping

point.” Grutter v. Bollinger, 288 F.3d 732, 751-52

(6th Cir. 2002). That is exactly the problem with the

UT program. So long as it can use “diversity” as a

goal justifying the use of race, the University will be

able to justify its further use of race whatever the ra-

cial mix of its student body, and there will never be

an end.

Accordingly, this Court should revisit and over-

rule its holding in Grutter, so as to prevent the con-

fusion and weakening of equal protection demon-

38

strated by the years of litigation and tortuous proce-

dure of the instant case.

CONCLUSION

For the foregoing reasons, the Court should find

the UT admission program to be unconstitutional.

This Court should also revisit its holding in Grutter,

to make clear that outside of a constitutionally-

permissible remedy to prior discrimination, race may

not be considered in college admissions.

39

Respectfully submitted,

JOHN C. EASTMAN GORDON M. FAUTH, JR.

Center for Constitutional Counsel of Record

Jurisprudence ROSANNE L. MAH

c/o Chapman University Litigation Law Group

Fowler School of Law 1801 Clement Avenue

One University Drive Suite 101

Orange, CA 92886 Alameda, CA 94501

(877) 855-3330 (510) 238-9610

Lee C. Cheng

Alan Tse

Asian American Legal

Foundation

11 Malta Street

San Francisco, CA 94131

(510) 238-9610

Counsel for Amici Curiae

The Asian American Legal Foundation and

The Asian American Coalition for Education (repre-

senting 117 affiliated Asian American

organizations)

DATED: September 10, 2015