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Our SCOTUS Brief: “The Grand Judicial Experiment of Excusing Racial Discrimination in University Admissions … Has Failed”

Our SCOTUS Brief: “The Grand Judicial Experiment of Excusing Racial Discrimination in University Admissions … Has Failed”

Legal Insurrection Foundation Files Supreme Court Brief In Support Of Asian Students Challenging Race-Based Affirmative Action

The biggest case this U.S. Supreme Court term is abortion. The biggest case (so far) for next term is affirmative action, specifically lawsuits brought on behalf of Asian students claiming illegal racial discrimination at Havard University and the University of North Carolina which diminished admission of students of Asian ethnicity. The plaintiff and petitioner in SCOTUS is an entity called Students for Fair Admissions, Inc.

We have covered previously mostly the Harvard lawsuit, which Harvard won at trial and again on appeal.

Here’s the gist of the dispute from one of my prior posts:

We covered the appeal decision in detail, noting that there was no real dispute that Harvard discriminated, as the appeals court acknowledged:

A race-conscious admissions program is not narrowly tailored if a university uses it despite workable race-neutral alternatives. See Fisher I, 570 U.S. at 312. The district court found that eliminating race as a factor in admissions, without taking any remedial measures, would reduce African American representation at Harvard from 14% to 6% and Hispanic representation from 14% to 9%. SFFA II, 397 F. Supp. 3d at 178. It found that at least 10% of Harvard’s class would not be admitted if Harvard did not consider race and that race is a determinative tip for approximately 45% of all admitted African American and Hispanic students. Id.

The appeals court found, however, that Havard so far had couched such discrimination in the legally necessary verbiage under existing Supreme Court jurisprudence:

Harvard has identified specific, measurable goals it seeks to achieve by considering race in admissions. These goals are more precise and open to judicial scrutiny than the ones articulated by the University of Texas and approved by the Fisher II majority….

These goals make clear that Harvard’s interest in diversity “is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups,” but “a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.” Parents Involved, 551 U.S. at 722 (quoting Grutter, 539 U.S. at 324-25). Race is one piece of Harvard’s interest in diversity. It is “considered as part of a broader effort to achieve ‘exposure to widely diverse people, cultures, ideas, and viewpoints.’” Id. at 723 (quoting Grutter, 539 U.S. at 330). …

The Petition for review by SCOTUS:

Harvard uses race at every stage of the admissions process. To begin, Harvard recruits high-school students differently based on race. App.154-56. African-American and Hispanic students with PSAT scores of 1100 and up are invited to apply to Harvard, but white and Asian-American students must score a 1350. JA.577:6-581:20; JA.3741. In some parts of the country, Asian-American applicants must score higher than all other racial groups, including whites, to be recruited by Harvard.

* * *

Harvard’s admissions data revealed astonishing racial disparities in admission rates among similarly qualified applicants. SFFA’s expert testified that applicants with the same “academic index” (a metric created by Harvard based on test scores and GPA) had widely different admission rates by race. App.179-80; JA.6008-09. For example, an Asian American in the fourth-lowest decile has virtually no chance of being admitted to Harvard (0.9%); but an African American in that decile has a higher chance of admission (12.8%) than an Asian American in the top decile (12.7%).

SFFA’s regression analysis showed “substantial” preferences for African-American and Hispanic applicants. JA.2290:22-2291:8; JA.6017. Harvard’s expert, David Card, agreed. If Harvard eliminated racial preferences and adopted no race-neutral alternatives, Card found that the African-American share of the class would fall from 14% to 6% and the Hispanic share would fall from 14% to 9%. App.209-10; JA.6121. In absolute terms, then, race was “determinative” for at least “45% of all admitted African American and Hispanic applicants”—or “nearly 1,000 students” over a four-year period. App.209

You can review the Supreme Court’s docket here, and the Petitioner’s Brief here. The respondent universities briefs are due July 25. The cases present the following questions, as set forth in Petitioner’s Brief:


1. Should this Court overrule Grutter v. Bollinger, 539 U.S. 306 (2003), and hold that institutions of higher education cannot use race as a factor in admissions?

2. Title VI of the Civil Rights Act bans race-based admissions that, if done by a public university, would violate the Equal Protection Clause. Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003). Is Harvard violating Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives?

3. The Constitution and Title VI ban race-based admissions unless they are “‘necessary’” to achieve the educational benefits of diversity. Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 312 (2013). Can the University of North Carolina reject a race-neutral alternative because the composition of its student body would change, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall studentbody diversity?

Legal Insurrection Foundation has filed an Amicus Brief in Support of the Petitioner. addressing only the first of the Questions Presented.

Here is our statement in the Brief of our interest in the case [footnotes omitted]:


Legal Insurrection Foundation (LIF) is a Rhode Island tax-exempt not-for-profit corporation devoted, among other things, to advancing free expression and academic freedom on campuses. LIF publishes the Legal Insurrection website, which provides news coverage and analysis of the narrowing of viewpoint expression and the growth of ‘cancel culture’ on campuses. LIF also publishes, which documents the now-pervasive and expansive race-based educational and training mandates at colleges and universities, and how such mandates negatively impact campus free expression.

LIF has been increasingly concerned about and provided news coverage and analysis of the suppression of diversity of viewpoints on university campuses. LIF is also greatly concerned about the inconsistency between racebased admissions discrimination and the constitutional guarantee of equal protection, and the negative impact of such institutionalized racial discrimination on viewpoint diversity. While LIF supports the arguments of Petitioner as to the unlawfulness of the conduct of Respondents in these specific cases, LIF submits this Brief to address the specific issue that the promise of viewpoint diversity which underpinned this Court’s prior acceptance of arguments to permit admissions discrimination has not materialized. The Court should overrule or modify its prior decisions.

Here is our short and to the point Sumary of Argument:


The grand judicial experiment of excusing racial discrimination in university admissions in the hope it would promote the educational objective of diversity of viewpoint has failed, and accordingly, this Court should overrule or modify its holding in Grutter v. Bollinger, 539 U.S. 306 (2003) (“Grutter”). Despite the Court permitting the use of race in higher education admissions, viewpoint diversity is increasingly endangered on campus. Since Grutter, the range of viewpoints permitted on campus, particularly on matters regarding race, has narrowed. It’s time to return to the constitutional prohibition against racial discrimination without an exception for education.

Of course you should read the whole things, but here’s the Table of Contents for an overview and guide:

If Harvard and UNC lose the case, and if the Supreme Court says no more discrimination in admissions, will it end discrimination in admissions? I doubt it, the discrimination will just go further underground by eliminating the types of statistical evidence the Asian students in the Harvard case used to demonstrate discrimination — standardized test scores. Schools will introduce more “soft” factors that obfuscate racially-motivated admissions decisions. It’s already happening at Harvard (Harvard Dropping SAT Requirement for Several More Years Enables More Anti-Asian Discrimination) and it’s likely to happen elsewhere.

The cases have the potential not only to topple race-based admissions, but the ethos of the Critical Race Theory movement, as succinctly set forth in Ibram Kendi’s maxim justifying racial discrimination:

“The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.”

Thanks to Johanna Markind, Esq., of Legal Insurrection Foundation, for her hard work on the Brief.


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mbecker908 | May 9, 2022 at 6:29 pm

Do you think “black culture” embraces Western values? Or Hispanic culture?

Way to go professor. Can’t wait to read the whole brief.

    JohnSmith100 in reply to ssns4ever. | May 11, 2022 at 7:35 am

    “Card found that the African-American share of the class would fall from 14% to 6% and the Hispanic share would fall from 14% to 9%. ”

    This is damning, in that what it actually means is that only 6% of blacks and 9% of Hispanics actually are qualified. Hispanics average IQ is just 2 points higher than blacks, 87 & 85 respectively, yet Hispanics are producing qualified students at 1.5 times the rate. I bet that has something to do with their having a much better work ethic than blacks. Black underperformance is not just about low average IQ, it is also about a really piss poor culture. I bet that having a nuclear family is a big part of why Hispanics are performing better.

So it’s okay to discriminate if you are Harvard and speak the courts langauge?

Diversity [dogma], Inequity, and Exclusion. There is a not so fine line separating affirmative action and affirmative discrimination.

    antisocialjustice in reply to n.n. | May 11, 2022 at 12:54 am

    ? I thonk it has to be zero sum. if you place someone up, someone else is placed down.

    Inclusivity and affirmation would look more like letting the deserving in and making inclusive allowances for the “underprivileged” (being poor does not equal being absolved of failure to try).

If it has the word “race” in it, even if for some presumed remedial effect, it is racism. Student applications should be by randomly assigned number, and the student is accepted or not purely based on their ability.

One question: do the graduation rates remain consistent with the racial manipulation? In other words, do any of the “assisted” races drop out prior to graduation, or require additional aid? I honestly don’t know, and welcome the information. One presumes that the abilities of the accepted students are sufficient to maintain their place in the school until graduation, hence their acceptance. If not, then that is a different story.

If I were of some “assisted” race, I would feel that the school didn’t think I could make it on my own. Whether others, outside the university, think these students are “up to snuff” remains to be seen.

Affirmative action hangs like the Sword of Damocles over these students.

    Dathurtz in reply to Dimsdale. | May 10, 2022 at 7:56 am

    I think you will find that “assisted” races tend to keep on receiving assistance throughout the process. Even in secondary school. If a white kid fails one of my courses, then nobody cares except that kid and his/her parents. If a black kid fails one of my courses the whole world ends and it is a giant hassle where I have to justify that kid’s grade and make dang sure I jumped through all kinds of hoops to help them pass. And I am in a pretty conservative area with a RINO type principal. I think a lot of teachers just give that kid a D and move on, rather than go through the process. Kids aren’t dumb and they figure it out pretty early.

Foreigners are under no obligation to embrace Western/American values. That is why first “dibs” should be for citizens in college applications.

The Constitution and Title VI ban race-based admissions unless they are “‘necessary’” to achieve the educational benefits of diversity. Fisher v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297, 312 (2013).

What educational benefits? Yes, that is what that case said, so lower courts are bound by it, but the Supreme Court should also be asked to reconsider whether such benefits even exist, and demand to see some evidence for it — which the universities will be unable to provide because there isn’t any.

    LukeHandCool in reply to Milhouse. | May 9, 2022 at 9:28 pm

    The dearth of diversity in Asian countries is why their students score so poorly in international rankings. Japan, South Korea, Singapore, Hong Kong, Taiwan … all at the bottom of the international heap due to their homogeneity.

    Proof that racial diversity by any means necessary is the most important thing to getting a good education.

    And the more heterogeneous and fractious (preferably at each other’s throats with CRT) the higher the scores. You know it’s true!

    Observer in reply to Milhouse. | May 10, 2022 at 8:22 am

    That is the point of the LI brief. One of the “educational benefits of diversity” was supposed to be exposing students to different viewpoints. But as we all know, that didn’t happen. Since the Supreme Court started allowing racial discrimination in university admissions, the diversity of viewpoints on campuses has markedly decreased, not expanded. It’s long past time for the Supreme Court to admit its mistake.

Subotai Bahadur | May 9, 2022 at 9:05 pm

Two thoughts:

1) Given the current uproar about actually following the Constitution in the purported [we only know now what it is claimed to be, not what it will actually come out as]; final decision in Dobbs v. Jackson Women’s Health Organization; what are the odds that the Justices will so soon take the personal risks from the Left [in and out of office] by promoting individual equality despite ethnic status?

2) “In other words, do any of the ‘assisted’ races drop out prior to graduation, or require additional aid?”

Back when college was a log with a professor 0n one end and students on the other, I both attended AND was a volunteer tutor and counselor for what was then called the “Educational Opportunities Program”. Being Chinese, I volunteered for the Asian-American program run by the Asian American Students United. The Black program was run by the the Black Students Association. The Hispanic program was run by La Raza Unida.

In the Asian-American EOP, we went to high schools and found Asian students who had the test scores and grades but not the money for college. We tested them to a fair-thee-well, and made it quite clear that if we furnished financial aid, their main job was to be an A student. And that we would furnish tutors [I tutored in Political Science] for free. In the year and a half I was involved with the program, we only lost one student who against advice tried to be both a full time engineering student and work full time.

The BSA and LRU would go to the high schools and ask those who were likely to graduate high school if they wanted free college. They would say yes, and if they in fact graduated high school they were admitted to the University. They furnished no tutoring and counseling resources, but a lot of political indoctrination. Every freaking semester, a whole bunch of them would flunk out. And for a week or so there would be demonstrations outside of Regent Hall accusing the school of racism because they flunked out.

If you ARE going to have a race-based admissions program in fact, if you want successful students who graduate with a degree you have to use whatever objective measures you can to make sure that the students can actually DO the work, and you have to have resources to help them if they get stuck.

Subotai Bahadur

What is the best way not to discriminate by race?

Do not discriminate by race.

    AnAdultInDiapers in reply to Treguard. | May 10, 2022 at 3:56 am

    Indeed. I wish people would stop calling it affirmative action and start using the real term: racial discrimination.

    guyjones in reply to Treguard. | May 10, 2022 at 7:34 am

    One of Justice Roberts’ rare moments of moral and jurisprudential clarity.

Racial or other discrimination practiced for allegedly benign or remedial purposes never should have been allowed by SCOTUS in job hiring, contract awards and school admissions. The series of decisions that allowed for such discrimination to take place — under the euphemistic and dishonest moniker, “affirmative action” — are indefensible and have wrought deleterious societal consequences. It is long past time for SCOTUS to roll back race discrimination for purposes of alleged “diversity,” as representing a brazen affront to the U.S. Constitution and to equal treatment under the law.

I like the fact that the Brief makes the salient point that the supposed benefits of “diversity,” such as an exchange of viewpoints, haven’t materialized in the decades since “affirmative action” (discrimination by another name) was instituted, and, in fact, the free exchange of views and opinions has — as the Brief sagely observes — become even more restricted.

Just a little historical note. This was done by all the Ivy League schools to Jews for decades. Everyone knew it, but nothing was ever said and nothing was ever done. Unlike what is happening now with the Asian students, where they are being denied admission in place of “favored” groups, what was done to the Jews was done simply and only because they were Jews.

    Sultan in reply to chocopot. | May 10, 2022 at 10:59 am

    Well, chocopot, your historical note is true enough but even waaaaay back in the ’50’s the Ivy League schools were clever enough to disguise their real intent. I was raised in Wisconsin and when I graduated HS I was told by my counsellor to apply to the Ivy League schools because they wanted more mid-western kids and not as many from New York City.

    I was accepted at Vassar in 1960, coming from a small unknown public high school in Oregon. A 7-College Conference recruiter sought applications for admission and financial aid, and I pursued the invitation. Years later I realized that this program was designed to address the Jewish quota then in effect at the Ivies and other elite eastern schools. I’m sure that my admission to Vassar represented one less NYC Jewish girl at Vassar. When I reiterated my story recently to the current Vassar president, she incredibly claimed never to have heard of the infamous “Jewish quota”. But perhaps she was simply being deferential to me. On the other hand, she’s 25 years younger than I, from a different generation, and perhaps the Jewish quota has been relegated to the dustbin of history by now.

      “…perhaps the Jewish quota has been relegated to the dustbin of history by now.”

      Perhaps.. but perhaps not. Hard to tell.

      Phillygirl1807 in reply to [email protected]. | May 16, 2022 at 11:31 am

      I think there is now a “renewed” Jewish quota. When my daughter attended Harvard, the Jewish population among undergraduates was about 20-25%.. Now it is barely 5%. I guarantee you the black and hispanic populations are much larger now. But is campus life any happier? Are students better? Is debate allowed?

texansamurai | May 10, 2022 at 11:07 am

even humphrey, who was instrumental in the crafting of the ’64 act, was very concerned at the time that what had actually occurred was the government endorsement of “reverse discrimination” and that the potential effects would be catastrophic–lbj, of course, was oblivious–“we’ll have’em voting for us for two-hundred years!”

In your rankings of importance of cases before SCOTUS, I hasten to point out no mention of New York State Rifle & Pistol Association, Inc. v. Bruen, a case which promises to be determinative of 2nd Amendment law, which I place ahead of affirmative action disputes in importance to most citizens.

If a majority of the court is any good, or pays attention to the Constitution, they will throw it all out, “narrowly tailored” or not. A publicly funded school should have only one standard for admission — based on merit and applying to everyone. Privately funded institutions should be free to discriminate in whatever way they choose, but without any money from taxpayers. Asians are taxed at the same rate as everyone else, and should have an equal shot at getting some of their money back.


number crunch | May 11, 2022 at 11:57 pm

Harvard pumps up the race based admissions to meet a quota then flunk out the unqualified and argues that this is a good thing. The counter argument is that the qualified students who are dropped to make way have to accept a lesser school. The only problem with this is that the dropped students are another minority who Harvard deems as less oppressed on the victimhood scale.

Brilliant strategy by Harvard except for the fact that the Black and Hispanic minorities who flunk out are emotionally scarred by the experience, the Asian minorities who have to accept a lesser school now perceive themselves as victims. Meanwhile, Harvard doesn’t risk tarnishing their brand by having unqualified graduates, gets brownie points for being woke and quietly lives the good life on a fat endowment from rich donors who’s kids just happen to be white and above the fray.

So Harvard has successfully pitted minorities against each other and commits racial discrimination on a scale that would make a Klansman blush all the while maintaining an air of liberal respectability. Hope they lose this suit.

Meanwhile, Harvard doesn’t risk tarnishing their brand by having unqualified graduates,

I wouldn’t take that as a given. Harvard admitted David Hogg, the snarky little “anti gun” activist who received public attention after the Florida school shooting (and was also part of the crowd who had bullied the school shooter). Hogg had been rejected by several state universities because of his mediocre test scores, yet Harvard admitted him. And he’s still there, on track for graduation.

Apparently Harvard is very willing to tarnish its brand for some types of people.

Somehow I get the impression that DIE in education costs far more than the $36 millions Oberlin is trying to dodge

we will never come to terms with the situation we have in america until we recognize that we have a black problem We ran out of the white supremacist bull scht. The iq inequality bull scht. The reparations bull schit. The mimetic resentment bull scht…… biden, the excuses are over. African Americans have have sold their souls into perdition and have decided that their failures are not their failures and have adopted the victimization strategy because there is good money in it and the media is making a ton from their resultant misery. it’s over for them and like any hardened strata at the bottom of a culture they continue threaten and scream and yell….Not gonna work. The human spirit knows that failure is by product of choice, not victimization……..and the spirit it becomes brutally honest with itself knows it has the life of higher values and it takes valor to do that…..cowards will always fail.

you need an edit button!!!!!last sentence…..and unless the spirit becomes brutally honest with itself, knowing the life of higher values requires valor, then it will fail, as all cowards must fail…..shaking it;s tiny fist at the sky. Welome to the world of the Dindoo Nuffin Nation.