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”

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.

• Complaint Says Harvard Discriminates Against Asian-Americans (2015)
• New Harvard President Rejects Claims of Discrimination Against Asian-Americans (2018)
• Federal Judge Sides With Harvard in Discrimination Case Brought by Asian Applicants (2019)
• Trump administration sides with Asian American students in discrimination suit against Harvard (2020)
• Appeals Court upholds Harvard’s discrimination against Asian-Americans (2020)
• Supreme Court Asked To Hear Harvard Anti-Asian Discrimination Case (2021)
• Supreme Court Delays Whether To Review Harvard Anti-Asian Discrimination Case, Seeks Biden Admin Position (2021)
• Harvard Dropping SAT Requirement for Several More Years Enables More Anti-Asian Discrimination (2021)
• Supreme Court Agrees To Hear Harvard and UNC Affirmative Action Cases (2022)

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). …

Harvard has sufficiently met the requirements of Fisher I, Fisher II, and earlier cases to show the specific goals it achieves from diversity and that its interest is compelling….

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:

QUESTIONS PRESENTED

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]:

INTEREST OF AMICUS CURIAE

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 CriticalRace.org, 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:

SUMMARY 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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