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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0328%3A029

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0328%3A029. Public record. Not legal advice.