SCOTUS Affirmative Action Reply Briefs: Harvard and UNC Make Arguments Similar To Segregationists

SCOTUS Affirmative Action Reply Briefs: Harvard and UNC Make Arguments Similar To Segregationists

Petitioner filed reply briefs in the Supreme Court cases, Students for Fair Admissions v. Harvard and Students for Fair Admissions v. University of North Carolina. Basically, petitioner explains that both Harvard and UNC support racial discrimination now, racial discrimination tomorrow, racial discrimination forever. By contrast, both reply briefs support LIF’s argument in its amicus brief:

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.

Naturally, the reply briefs address other legal issues besides, such as standing and the importance of stare decisis (that is, the importance of not overruling prior decisions so as to maintain predictability).

Here are some the highlights of the reply brief against Harvard:

Harvard used to boast that it was this Court’s “model” for how to use race. E.g., BIO.15. It no longer makes that point. Harvard was the model; it just never deserved to be. Once the “Harvard Plan” was challenged in court, litigation revealed that Harvard uses race as a proxy for character, equates race with winning a national award, micromanages tight racial ranges, never considered race neutrality, makes no plans to stop using race, and more. If the Court knew how universities would abuse the limited license it was granting them in 2003, Grutter would have come out the other way.

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Surely Harvard doesn’t think that Brown [v. Board of Education] would have been different if southern schools had used a holistic policy that covertly reduced the number of black students (as Harvard did with Jewish students). The rule of racial neutrality is “offended by ‘sophisticated as well as simple-minded modes of discrimination.’” United States v. Fordice, 505 U.S. 717, 729 (1992)…

4. No educational benefits could justify departing from Brown, especially not Grutter’s imaginary benefits. When Grutter discussed the educational benefits of diversity, it meant a diversity of viewpoints. Br.65. Yet Harvard concedes that race says nothing about an applicant’s views, experiences, or background. Harv.- Br.33. Common sense, plus this Court’s precedents, agree. Br.52-53. But if race is no better than random, why use race?

Neither Harvard nor Grutter fills this logical gap with evidence. The district court in Grutter found that the “connection between race and viewpoint” is “tenuous, at best.” 137 F. Supp. 2d 821, 849 (E.D. Mich. 2001). Witnesses “generally conceded” that viewpoints expressed by minority students “might equally have been expressed by non-minority students.” Id. at 849-50. A former dean of Michigan Law agreed, noting the faculty’s consensus that “racial diversity is not responsible for generating ideas” in class even on questions of race. Id. at 850. The studies in Grutter and Harvard’s brief are equally unimpressive. They concede that racial diversity “does not directly contribute to student development.” Bowman, College Diversity Experiences and Cognitive Development: A Meta-Analysis, 80 Rev. Educ. Res. 4, 5-6 (2010). So these studies proceed to measure something other than racial diversity, like taking an ethnic-studies class or socializing with minorities. Grutter v. Bollinger, 288 F.3d 732, 804 (6th Cir. 2002) (en banc) (Boggs, J., dissenting). Even on those variables, the studies aren’t causal, and they rely on highly unscientific surveys. Id.; Killenbecks-Br.17-19…

Harvard’s arguments also assume that it’s diverse now. But it’s not socioeconomically, geographically, or politically…

While Grutter also cited an amicus brief touting the importance of race to the military, 539 U.S. at 331, the United States opposed race-based admissions in Grutter, U.S.-Grutter-Br.13-18. Those amici were wrong, General Olson explained, to suggest that “black soldiers will only fight for black officers” or that “race neutral means” wouldn’t work “in the academies.” O.A.Tr.19. The United States now supports Harvard, but it offers no evidence about how the military academies use race, what race-neutral alternatives they’ve considered, why those alternatives wouldn’t work, or why its contrary position in Grutter was wrong. As for the ROTC, the quality of those officers won’t meaningfully change because race-neutral alternatives still achieve diversity. Even today, the United States can’t explain how officers who attend race-blind universities (say, Texas A&M) are inferior to officers who attend race-based universities (say, Texas). The military did just fine during the forty years that Harvard and other elite colleges banned ROTC from their campuses. Hayden, ROTC Marches Through the Ivy League, Atlantic (May 26, 2011), bit.ly/3TcXczi.

(footnote omitted) (emphasis added).

In a footnote, SFFA also said it never conceded that “diversity” provides educational benefits:

Harvard pretends that SFFA conceded the benefits of diversity below. But diversity wasn’t “‘on trial,’” Harv.-Br.11, because Harvard got SFFA’s challenge dismissed on the pleadings, stressing that the benefits of diversity were “not appropriate topics for litigation” because only this Court can overrule Grutter.

Petitioner’s Reply Brief in case against Harvard. [Click on image to see document.]

UNC’s argument is not with SFFA; it is with Brown. That landmark decision fulfilled the Fourteenth Amendment’s promise by requiring that “education… be made available to all on equal terms.” 347 U.S. 483, 493 (1954). As the United States explained then, no neutral principle “could support a constitutional distinction between universities on the one hand, and public elementary or high schools on the other.” U.S.-Brown-Br.19. Yet Grutter draws just that distinction.

In defending Grutter’s detour from Brown, UNC makes the same arguments that Brown rejected. It claims that the postbellum era vindicates its reading of the Fourteenth Amendment. It argues that racial classifications make everyone better off. It warns that universities cannot discard race quite yet. And it contends that the legality of its practices should be decided by North Carolinians, not this Court. The segregationists agreed.

***

3. The educational benefits of diversity are not a “‘most compelling’” reason to use race. UNC does not defend Grutter’s stereotypical assumption that racial diversity increases viewpoint diversity. Though UNC parrots Grutter’s more race-specific assertions, it does not rehabilitate them.

Like Grutter, UNC’s arguments are mostly circular. It says racial diversity prepares students for the “increasingly diverse communities and workplaces that await them.” JA1378; accord Grutter, 539 U.S. at 331. It says racial diversity creates “legitimacy in the eyes of the citizenry” by ensuring that elite colleges are “visibly open” to all races. Grutter, 539 U.S. at 332 (emphasis added). And it says racial diversity helps minority students “not feel isolated.” Id. at 319. These interests come dangerously close to saying that racial diversity is important because it achieves racial diversity. At a minimum, they betray a focus on proportional representation—ensuring that the student body “looks like” the country more broadly. How else would universities match the workplace, meet society’s aesthetic expectations, or prevent minorities from feeling unusually isolated? Neither proportional representation nor racial diversity in a vacuum, however, are legitimate interests that can sustain race-based admissions. Parents Involved, 551 U.S. at 729- 33.

Also like Grutter, UNC has no real evidence that race-based admissions “promot[e] ‘cross-racial understanding.’” 539 U.S. at 330. Touting its own report—a citation-free document created for litigation—UNC asserts that racial diversity will “destroy stereotypes, bridge divisions, and promote empathy.” JA1378. But even if racial diversity created these benefits, UNC’s “‘means’” of pursuing racial diversity counteracts them. Parents Involved, 551 U.S. at 743 (plurality). Racial classifications increase “‘racial hostility,’” create “‘conflict,’” and “‘reinforce’” stereotypes. Id. at 746. Tellingly, the only evidence that tries to measure whether race-based admissions create these benefits is pseudoscience. As in Grutter, UNC proffers surveys that ask students to grade their own appreciation for other races. JA1524. These surveys suffer from considerable “‘social desirability pressures’” where students feel pressured to say what the university wants to hear. Killenbecks-Br.17. And these “subjective self-reports” are not the hard evidence that strict scrutiny demands. Grutter v. Bollinger, 288 F.3d 732, 804 (6th Cir. 2002) (en banc) (Boggs, J., dissenting). The same goes for the intervenors’ evidence about “white fragility.” JA1618-20.

Petitioner’s Reply Brief against University of North Carolina. [Click on image to see document.]

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