A guide to the amicus briefs in the affirmative-action cases

SCOTUS FOCUS A guide to the amicus briefs in the affirmative-action cases By Ellena Erskine, Angie Gou, and Elisabeth Snyder
on Oct 29, 2022 at 6:44 pm Share

Nearly 100 amicus briefs were filed in Students for Fair Admissions v. the University of North Carolina and Students for Fair Admissions v. President & Fellows of Harvard College, the cases questioning the use of affirmative action in undergraduate admissions at both public and private universities.

Thirty-three briefs support SFFA and 60 briefs support the universities. We reviewed them all and summarized many of the noteworthy arguments.

The cases will be argued on Monday. For background on the cases, check out Amy Howe’s preview for SCOTUSblog.

Amicus briefs supporting Students for Fair Admissions Grutter is inconsistent with the equal protection clause

Fourteen U.S. senators and 68 representatives write that “laws and policies dividing people by race are immediately suspect.” The admissions policies “harm Asian-American students and others, who are unfairly judged by their race rather than by individual merit. Under the Fourteenth Amendment and Title VI, those policies cannot stand.” The group also draws attention to other race-conscious policies that they deem similarly unconstitutional, including the Biden administration’s executive order announcing a “whole-of-government equity agenda,” COVID-19 relief measures aimed at “socially disadvantaged” farmers and ranchers, and New York’s directive to health care providers that “[n]on-white race or Hispanic/Latino ethnicity should be considered a risk factor” in consideration of COVID-19 therapies.

Oklahoma and 18 other states write that data from colleges where race-conscious admissions is banned show that schools can maintain diversity and academic competitiveness without it. Quoting from Grutter and Bakke, the states write, “Refusing race-neutral alternatives merely because they would fail ‘to assure within its student body some specified percentage of a particular group’ can only be called ‘racial balancing, which is patently unconstitutional.’” Because the programs consider race whether or not the applicant indicates that identity is important to them, “[t]heir affirmative action policy therefore devolves into the very tokenism that respondents claim to be trying to combat.”

The state of Texas writes that college admissions “stand alone” as a departure from the court’s “long-held skepticism regarding racial discrimination” as seen in its rejection of diversity as a compelling interest in secondary schools and faculty hiring. Academic freedom, which the court relied on in Grutter, is “not a specifically enumerated constitutional right.” Further, the state writes, the claim that Grutter depends on the higher-education context does not make sense — there is no substantive difference between the educational benefits of diversity for 18-year-olds and K-12 students. “At bottom, ‘diversity’ as articulated by its proponents is too amorphous to constitute a compelling state interest that satisfies the Equal Protection Clause.”

The universities’ policies are discriminatory

The Louis D. Brandeis Center for Human Rights Under Law and the Silicon Valley Chinese Association Foundation argue that affirmative action today discriminates against Asian Americans in historical patterns, suggesting that “Harvard discriminates against Asian Americans in admissions in the same manner in which it discriminated against Jews in the 1920s and 1930s.” The National Association of Scholars filed a brief with similar arguments.

A group of S. Department of Education officials who served during Secretary Betsy DeVos’s tenure criticize Grutter because it is too “manipulable and unworkable” for schools. They criticize the Biden administration for focusing too much on race in education. “While the last several years have seen the rise of ‘equity,’ ‘diversity,’ and ‘inclusion’ campaigns that openly call for considering race even more, the U.S. Constitution and Title VI protect against such discrimination.”

Discovery in the Harvard case created a dataset of applicant characteristics for 150,000 applicants over six years. Twelve economists argue that models of this data reveal a record of discrimination. “Admissions are zero sum. A tip for one race is thus a penalty against other races.”

Racial classifications are arbitrary and undermine diversity efforts

Professor David E. Bernstein writes that the racial and ethnic categories that Harvard employs in its admissions process are arbitrary, arguing that “the categories are imprecise, over and underinclusive, and are not narrowly tailored to achieve educationally beneficial diversity.” The Liberty Justice Center and Momoko Takahashi make a similar argument.

The American Center for Law and Justice and Devon Westhill argue for a colorblind interpretation of the Constitution. They write that categorizing applicants by race is arbitrary and invites individuals to game the system. They point to genocides conducted in Nazi Germany and Rwanda as the worst products of official racial classifications.

The Foundation Against Intolerance & Racism writes that group preferences are inconsistent with equality and individual rights, and they result in negative effects on the students such as stigma, division, resentment, and experiences of being dehumanized.

The Asian American Coalition for Education and the Asian American Legal Foundation argue that the schools illegally discriminate against Asian American students. “Harvard maintains its racial balances by taking the discrimination an insulting step further, using the highly subjective ‘Personal’ rating — an important component of an applicant’s overall admissions score — to establish a hierarchy of races, with blacks at the top, followed by Hispanics, followed by whites, and with Asian Americans at the very bottom.” They write that Grutter allows for explicit unequal treatment “all in the name of an Orwellian, skin-deep definition of diversity.”

Race-conscious policies are illegal under Title VI (though not necessarily under the 14th Amendment)

Jonathan Mitchell writes for the America First Legal Foundation that the court does not need to consider the 14th Amendment because “[t]he language of Title VI makes no allowance for racial considerations in university admissions. It prohibits all forms of racial discrimination at universities that accept federal funds, with no exceptions for ‘compelling interests,’ ‘diversity,’ or ‘strict scrutiny.’” In urging the court not to consider the “more difficult question” of whether the 14th Amendment permits affirmative action, the foundation notes that the amendment concerns equal protection, not equal treatment, under law. The brief is skeptical of “the oft-repeated mantra that the Equal Protection Clause prohibits all racial classifications in government” because there is “plenty of historical evidence indicating that race-conscious laws are consistent with the original understanding of the Fourteenth Amendment.”

The universities’ policies do not promote First Amendment values

Speech First writes that Bakke and Grutter‘s “unsupported empirical assumption that racial preferences would promote a more robust exchange of ideas has turned out to be tragically wrong.” The brief concludes that Grutter must be overturned in order to revitalize free expression on college and university campuses.

Superficial diversity and groupthink on campuses

The Hamilton Lincoln Law Institute and Ilya Shapiro write that Grutter has allowed legal discrimination against students with conservative views. “Instead of creating academic communities with a broad mix of perspectives and life experiences, or even making amends to the descendants of slaves — which the Court has never accepted as a constitutional justification for racial preferences — race-based admissions have served to further entrench wealth and privilege, while corporate diversity efforts have led to a culture of groupthink.” They argue that Grutter’s diversity rationale has “allowed racialist thinking to permeate our legal landscape.”

Project 21, a national leadership network for Black conservatives, argues that affirmative action stigmatizes minority students for “the rest of their lives.” The premise of Grutter and Bakke, that race-conscious admissions policies fall under a school’s compelling interest in the “educational benefits that flow from a diverse student body,” is “antithetical to the Constitution’s guarantee of Equal Protection” and is unpersuasive. The group criticizes the assumption that “one racial group is different from other racial groups” in talent, experience, and background “solely because of their skin color.”

The Legal Insurrection Foundation, publishers of a website on “the growth of ‘cancel culture’ on campuses” and “CriticalRace.org,” write,“Grutter’s premise has failed, as today’s university campus lacks viewpoint diversity.” Freedom X makes a similar argument.

Amicus briefs supporting UNC and Harvard Democracy, reliance interests, and legislative purpose

The Biden administration urges the court not to overrule Grutter, arguing that the landmark decision “allowed the Nation’s people and their elected representatives to engage in ongoing dialogue about this sensitive and important issue.” The government also emphasized the public’s reliance on the notion that affirmative action is permissible. Universities and service academies have structured their admissions systems around Bakke, and Grutter’s endorsement has only strengthened that dependence.

Fifteen Democratic senators and former senators add that Congress has repeatedly acted in favor of increasing opportunities for underrepresented minorities (such as the College Cost Reduction and Access Act and the Higher Education Opportunity Act) and did not intend Title VI to act as a barrier to race-conscious admissions.

The benefits of racial diversity in higher education

The American Psychological Association and other groups write that discrimination and underrepresentation inflict academic harm and affect all students. Substantial peer-reviewed scientific research supports the holding that campus diversity is a compelling government interest. The group cites a recent study of Latino and Black students that found “that experiences of discrimination were predictive of poor physical health, increased depression, poorer academic outcomes, and lower graduation rates.” The scholars also cite studies discrediting the “academic mismatch” theory, advanced by other amici, that students of color are not properly matched to the academic rigor of the schools they are accepted to. A group of scientists add that “mismatch theory” is debunked by data and rests on faulty assumptions.

Twenty-five Harvard student and alumni organizations argue that banning race-conscious admissions would reinforce inequalities in opportunity based on race and background and would significantly reduce the number of underrepresented students admitted to Harvard. Considering race allows Harvard to identify talented students of color and build a diverse environment necessary for “a healthy democracy.” A racially diverse group of Harvard students and alumni add that Harvard’s policy has been crucial to their success at the university.

The American Educational Research Association and other research organizations argue that diversity leads to better student outcomes with academics and racial and cultural engagement. The American Federation of Teachers adds that a “greater degree of classroom racial diversity is associated with a higher GPA at graduation.”

The National Women’s Law Center and 37 other organizations argue that “considering race as one factor in higher education admissions policies is necessary to ensure the inclusion of women of color and to achieve the well-recognized benefits of diverse student bodies.” Their brief cites some of these benefits as “countering harmful stereotypes, fostering the exchange of ideas, and preparing students for a diverse society.”

Deborah Cohen and 67 other professors write that students immensely benefit from exposure to people of different backgrounds, especially through the formation of student groups that contribute to diversity efforts. “Statewide bans on affirmative action,” they write, “have led to a general decline in degree attainment for Black adults, as well as an ‘opportunity gap’ in education and income.”

Amherst and 32 other highly selective residential colleges write that banning affirmative action would be especially destructive to smaller schools, many of which have made substantial investments tailored to the standards established by Grutter and Bakke, including significant coursework such as Black Studies programs, scholarships, and professorships to further their missions of diversity.

Asian American support for race-conscious admissions

The Asian American Legal Defense and Education Fund argues that SFFA attempts to use Asian Americans and the model-minority myth as a way to deny opportunities to other underrepresented minorities, which harms all minorities and benefits only white applicants. In addition, the brief says that Asian Americans have increased enrollment in higher education institutions and have a greater presence in positions of leadership. “The strides the community has made in the Grutter era suggest that race-conscious admissions policies are not responsible for holding Asian Americans back.” 1,241 social scientists and scholars on college access, the National Asian Pacific American Bar Association, Asian Americans Advancing Justice, and the National LGBTQ+ Bar Association present similar arguments, and add that the majority of Asian Americans support race-conscious admissions and recognize the benefits of diversity in education.

Holistic admissions

Admissions and testing professionals argue that “no workable alternatives to achieve diversity goals exist to replace holistic, individualized reviews that flexibly consider race and ethnicity in the context of experience, achievements, and qualifications.” A group of youth advocates and experts make a similar argument.

College Board, ACT, Inc., and two college admissions organizations warn that the standardized tests they publish are intended to be considered as part of holistic review and should not be taken as an indication of merit in isolation.

HBCU leaders and the National Association for Equal Opportunity in Higher Education write that HBCUs provide opportunities for Black students, but not enough: “It is of critical importance that institutions such as Respondents, with long histories of excluding and marginalizing Black students, be permitted to consider race as one factor in a holistic review in order to ensure that their incoming classes are racially diverse and Black students can feel safe and welcome.”

The meaning of Brown v. Board of Education and continuing disparities in educational access

The NAACP Legal Defense and Educational Fund and the National Association for the Advancement of Colored People write that “Brown did not espouse Petitioner’s version of ‘colorblindness,’ which would require decisionmakers to willfully ignore ongoing racial inequality” and that SFFA “seeks to re-write Brown to facilitate the resegregation of UNC in direct contravention to Brown’s express goals.”

Sixty-five members of Congress write that segregation in K-12 schools has increased since Grutter and educational inequities have only worsened. Brown was not about colorblindness, they write, but “affirmative efforts to reduce racial isolation and promote educational equity.” Its promise has been unfulfilled. Contrary to arguments supporting SFFA, the representatives write that after California and Texas banned race-conscious admissions in their public universities they experienced a drop in minority enrollment. “[A] longstanding record of Congressional intent” and “recent legislative efforts on Title VI, through the Equity and Inclusion Enforcement Act, show that Congress has sought to enhance the rights of minority students and prevent the academic achievement losses and educational inequities that have been fostered by recent trends toward resegregation.” The Council of the Great City Schools, comprised of 76 of the country’s largest urban public-school systems, makes a similar argument.

The National Black Law Students Association outlines the history of disparities in access to strong elementary and secondary education for African American students. The brief presents race-conscious higher education admissions as “necessary to achieve racially diverse classrooms because of persistent and pervasive racial segregation” at the elementary and secondary levels. The National Academy of Education makes a similar argument.

The brief of the American Association for Access, Equity and Diversity and Fund for Leadership, Equity, Access and Diversity argues that diversity is a compelling government interest, given the negative effects of race-blind policies on enrollment and graduation rates of students of color and rising K-12 educational disparities. They write that the colorblind process proposed by SFFA “rests upon a fallacy that ignoring race will guarantee fairness, racial neutrality, and diversity in admissions outcomes.” The National Education Association and Service Employees International Union make similar arguments, adding that “the reality remains that race still carries great weight in our society and continues to carve out opportunities and disadvantages based solely on the color of one’s skin.”

Two human rights advocate groups write that the United States cites race-conscious admissions and Grutter in particular to signal its compliance with two international human rights treaties, Committee on the Elimination of Racial Discrimination and the International Covenant on Civil and Political Rights. According to the advocate groups, the CERD Committee found that these measures were not enough, and that more positive actions need to (and can) be taken to ensure equality in education in the United States.

Benefits of diversity beyond education

Many business and workforce groups write to emphasize the importance of diverse universities to train future employees and leaders. The Massachusetts Institute of Technology, Stanford, Microsoft, and others argue together that “American businesses at the cutting edge of advancements in STEM depend on the availability of a diverse pool of qualified graduates of elite institutions in these disciplines” that is only possible with a holistic race-conscious admissions system.

Thirty-five top former military leaders, including four chairmen of the Joint Chiefs of Staff, write that ignoring race in admissions would “impede our military’s ability to acquire essential entry level leadership attributes and training essential to cohesion” and urge the court to determine that race-conscious policies, including those used by the military, are constitutional.

Ten current and former Southern governors write, “Effective state government requires leadership that is broadly representative of the state’s population.” ­They urge the court not to decide broadly that any consideration of race is unconstitutional. Massachusetts, 17 states, the District of Columbia, and the attorney general of Wisconsin make a similar argument about the benefit of diverse leaders in their states’ workforces and communities.

The American Bar Association argues that diverse educational institutions teach lawyers how to better administer justice without implicit racial bias and stereotypes. The admissions programs help to create a more racially diverse legal profession and judiciary and therefore a more legitimate legal system. The group writes that these efforts remain important because white attorneys today comprise “95% of elected prosecutors, over 80% of Assistant U.S. Attorneys, and over 80% of lawyers at federal agencies overall.” The Law Firm Antiracism Alliance makes similar arguments.

Major American business enterprises write that businesses rely on universities to recruit and train qualified, racially diverse students. “Numerous studies support the conclusion that cross-racial interactions and engagement during university contribute to essential job-related skills.” The group also notes that “[o]f the various diversity experiences at universities, interactions with peers of different races are more strongly linked with cognitive growth than are interactions with peers who exhibit other forms of diversity.”

The Association of American Medical Colleges argues for the critical importance of diversity in the medical profession. “In controlled studies, Black physicians are far more likely than others to accurately assess Black patients’ pain tolerance and prescribe the correct amount of pain medication as a result. And for high-risk Black newborns, having a Black physician is tantamount to a miracle drug: it more than doubles the likelihood that the baby will live.”

The National Association of Basketball Coaches, the Women’s Basketball Coaches Association, and 348 current and former head basketball coaches, 11 leading science and technology companies, Multicultural Media and other telecommunications groups, the HR Policy Association, and the National School Boards Association et al. make similar arguments about the importance of diversity in athletics, industry, and students’ life-long achievement.

Original understanding of the 14th Amendment

The Washington Bar Association and the Women’s Bar Association of the District of Columbia write that “[r]ace-sensitive policies advance the Fourteenth Amendment’s core purpose of remedying the harms inflicted on Black Americans through slavery and discrimination.” Quoting Justice Thurgood Marshall, the groups write, “Since the Congress that considered and rejected the objections to the 1866 Freedmen’s Bureau Act concerning special relief to Negroes also proposed the Fourteenth Amendment, it is inconceivable that the Fourteenth Amendment was intended to prohibit all race-conscious relief measures. It would be a distortion of the policy manifested in that amendment, which was adopted to prevent state legislation designed to perpetuate discrimination on the basis of race or color[,] to hold that it barred state action to remedy the effects of that discrimination. Such a result would pervert the intent of the Framers by substituting abstract equality for the genuine equality the Amendment was intended to achieve.”

Eighteen history and law professors and the Constitutional Accountability Center present similar arguments and write that SFFA’s supporters mischaracterize the historical context of the 14th Amendment. A group of Black women law scholars add, “Eliminating race-conscious admissions programs would be a stunning betrayal of the constitutional promise of equal protection.”

First Amendment protection

Eleven deans of U.S. law schools provide an overview of the history of academic freedom to support the argument that diversity in higher education is a compelling interest and protected by the First and 14th Amendments. The historical link between diversity and academic freedom, the deans write, should not be abandoned, but celebrated.

The ACLU and the ACLUs of Massachusetts and North Carolina, 15 universities and Georgetown University and other Catholic colleges and universities make a similar argument, with the Catholic schools focusing on the freedom of religious schools to consider race to advance their particular religious mission.

Analysis of Harvard’s program

Economics professors from leading institutions write that SFFA’s statistical analysis does not stand up to standards for empirical analysis that reduce bias and unreliability. The professors write that SFFA’s expert analysis removed relevant non-academic information, excluded certain applicants, and pooled all applicants from six admissions cycles into a single model without appropriate statistical justification. Harvard’s expert found no statistically significant evidence of racial discrimination against Asian American applicants.

The Anti-Defamation League writes that Harvard does not use race as a determinative factor and that the school’s current policy is not analogous with its practice in the 1920s and ’30s of discrimination against Jewish applicants. The comparison, the group writes, is fundamentally flawed. Furthermore, the record at trial demonstrated that the school does not use quotas or have any animus toward Asian applicants.

SFFA lacks standing

Professor Andrew Hessick argues that SFFA does not have standing because the group “does not assert that it has suffered or will suffer any cognizable injury.” Its arguments for “associational standing,” Hessick continues, falls short because associational standing is “flatly inconsistent” with the constitutional requirement that federal courts may hear only concrete “cases and controversies.” Endorsing SFFA’s standing here would open the door for organizations to “manufacture standing out of thin air by recruiting members solely to establish standing.”

The failure of race-neutral alternatives

The president and chancellors of the University of California write that the UC system has served as a “laboratory for experimentation” for race-neutral measures since California banned race-conscious admissions in 1996. These measures have failed to enroll a sufficiently diverse student body to see the educational benefits of diversity, despite great investments and spending. Underrepresented minority enrollment dropped “50% or more at UC’s most selective campuses,” and admissions rates for African American applicants “remain well below 1995 levels.” Twenty-five California-focused bar associations write that California’s experience should not serve as a “glib assurance,” but a “grim warning.”

Posted in Featured, Merits Cases

Cases: Students for Fair Admissions Inc. v. President & Fellows of Harvard College, Students for Fair Admissions, Inc. v. University of North Carolina

Recommended Citation: Ellena Erskine, Angie Gou, and Elisabeth Snyder , A guide to the amicus briefs in the affirmative-action cases, SCOTUSblog (Oct. 29, 2022, 6:44 PM), https://www.scotusblog.com/2022/10/a-guide-to-the-amicus-briefs-in-the-affirmative-action-cases/