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Amicus 531

Amicus 531

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No. 11-345 THE 
Supreme Court the United States 
UNIVERSITY TEXAS AUSTIN, al., Respondents. Writ Certiorari the United States 
Court Appeals for the Fifth Circuit 

       Paul Orfanedes
       Counsel Record
       Chris Fedeli JUDICIAL WATCH, INC.        425 Third Street, S.W., Ste. 800        Washington, D.C. 20024 
(202) 646-5172
       Counsel for Amici Curiae 
LEGAL PRINTERS LLC, Washington 202-747-2400 

TABLE CONTENTS ............................................. 

TABLE AUTHORITIES ...................................... 

INTEREST AMICI CURIAE ................................1 

SUMMARY THE ARGUMENT ............................2 

ARGUMENT ...............................................................3


Adarand Constructors, Inc. Pena, 
515 U.S. 200 (1995) ................................
Fisher Univ. Texas, 
631 F.3d 213 (5th Cir. 2011) ...........................
Fisher Univ. Texas, 
645 Supp.2d 587 (W.D. Tex. 2009) .... 12,
Grutter Bollinger 
539 U.S. 306 (2003) ......................................
Korematsu United States, 
323 U.S. 214 (1944) ...........................................4
McLaughlin Florida, 
379 U.S. 184 (1964) ...........................................3
McMillan City New York, 
253 F.R.D. 247 (E.D.N.Y. 2008) ................ 22,
Metro Broadcasting, Inc. FCC, 
497 U.S. 547 (1990) .............................. 10,
Palmore Sidoti, 
466 U.S. 429 (1984) ...........................................3
Plessy Ferguson, 
163 U.S. 537 (1896) .................................. 19,
United States Carolene Products Co., 304 U.S. 144 (1938) .................................. 24, 
United States Ortiz, 897 Supp. 199 (E.D. Pa. 1995) .............. 23, 

American Anthropological Association,Statement Race (May 17, 1998), .... 
American Anthropological Association,Response OMB Directive 15: Race and  Ethnic Standards for Federal Statistics and Administrative Report ing (Sept. 1997), ............. 
ApplyTexas, Sample Application,  preview12/frs_1.html ............................................ 
ApplyTexas, Instructions for Completing  Your ApplyTexas Application, U.S.  Freshman Admission Application,  fresh12_help.html .................................................. 
Lucy Madison, Warren explains minoritylisting, talks grandfathers high  cheekbones, CBS News, (May 2012), listing-talks-of-grandfathers-high-  cheekbones/ ......................................................... 
Native American Rights Fund, Answers  Frequently Asked Questions About Native   Peoples, faqs.html ............................................................. 
Office Management and Budget, Revisions the Standards for the Classification  Federal Data Race and Ethnicity, (Oct. 30, 1997),  fedreg_1997standards/ ............................ 14, 15, 
Pew Hispanic Center, When Labels Dont  Fit: Hispanics and Their Views  Identity, (April 2012), when- labels-dont-fit-hispanics-and-their views-of-identity/ ........................................... 15, 
Press Release, International Consortium Completes Human Genome Project, (April 14, 2003) ....................... 
U.S. Census Bureau, What Race, ............... 

Judicial Watch, Inc. (Judicial Watch) nonpartisan educational organization that seeks topromote transparency, accountability and integrityin government and fidelity the rule law.  Judicial Watch regularly files amicus curiae briefs means advance its public interest mission and has appeared amicus curiae this Court number occasions. 
The Allied Educational Foundation (AEF) anonprofit charitable and educational foundationbased Englewood, New Jersey.  Founded 1964, AEF dedicated promoting education diverseareas study. AEF regularly files amicus curiae briefs means advance its purpose and has appeared amicus curiae this Court number occasions. 
Amici are concerned that the use race and ethnicity the University Texas Austin (the University) its admissions policy violates theEqual Protection Clause the Fourteenth Amendment the U.S. Constitution and are further concerned about the corrosive effect that violation American society and the rule law. Among the harms caused the Universitys race and ethnical Pursuant Supreme Court Rule 37.6, amici curiae state that counsel for party authored this brief whole part and that person entity, other than amici curiae and their counsel, made monetary contribution intended fund the preparation and submission this brief.  All parties have consented the filing this brief; letters reflecting this blanket consent have been filed with the Clerk. 
ly-based admissions policy are: the further enshrinement the intellectually impoverished concept race into law; the perpetuation culture racial and ethnic politics American public life; theincrease racial and ethnic resentment and intolerance American society; and the continued stigmatization individuals inferior based college admissions practices.  For these reasons, amici urgethe Court overturn the Universitys policy.  

Human race and ethnicity are inherently ambiguous social constructs that have validity science. Invoking race and ethnicity promote diversity relies racial and ethnic stereotyping individuals viewpoints, backgrounds, and experiences.Admissions policies such the policy enacted the University, which seek classify applicants crude, inherently ambiguous, and unsound racial and ethnic categories promote diversity, but which instead promote racial and ethnic stereotyping, can never narrowly tailored promote compelling government interest and therefore cannot survive strict scrutiny.  

A core purpose the Fourteenth Amendment was away with all governmentally imposed discrimination the basis race.  Palmore Sidoti, 466 U.S. 429, 432 (1984). Classifications persons according their race are subject themost exacting scrutiny; pass constitutional muster they must justified compelling governmental interest and must necessary the accomplishment their legitimate purposes.  Id. quoting McLaughlin Florida, 379 U.S. 184, 196 (1964); see also Adarand Constructors, Inc. Pena, 515 U.S. 200, 227 (1995) (all racial classifications, imposedby whatever federal, state, local governmentalaction, must analyzed reviewing court understrict scrutiny. other words, such classifications are constitutional only they are narrowly tailored measures that further compelling government interests). Grutter Bollinger, 539 U.S. 306, 328 (2003),this Court found that the University Michigan Law School had compelling interest attaining diverse student body. the same year that marked the completion the Human Genome Project,2 the Court upheld the Law Schools use race  concept that has been rejected scienceand for centuries has been used divide, impoverish, oppress, and enslave people  plus factor weighing favor admission. Id. 335-43. its ruling, the Court assumed that race was meaningful proxy for diversity without addressing the issue any direct way. The Court also assumed that race presented fixed, natural, and unambiguous means distinguishing between groups people such thatindividual Law School applicants could assigned aparticular racial classification and awarded  notawarded  plus factor based race.  Grutter represents only the second time since the adoption ofthe strict scrutiny standard that this Court has validated racial discrimination government actors non-remedial circumstances.  Grutter, 539 U.S. 351 (Thomas, J., dissenting). The other was Korematsu United States, 323 U.S. 214 (1944). Id. 
Following this Courts ruling Grutter, 2005, the University chose begin using race its admissions process, purportedly achieve greaterdiversity its student body.  Applicants the University are now required complete and submit standardized ApplyTexas application, among other information and materials.  Question the ApplyTexas application, entitled Ethnicity and Race, first asks applicants, Are you Hispanic Latino? person Cuban, Mexican, Puerto Rican, South Central American, other Spanish culture 
See Press Release, International Consortium Completes Human Genome Project, (April 14, 2003) http://www.genome. gov/11006929 (visited May 23, 2012). origin, regardless race).3 Applicants are asked answer yes no.4 other ethnicities are referenced.5  Question then directs applicants [p]lease select the racial category categories withwhich you most closely identify.  Check many apply: American Indian Alaska Native, Asian, Black African American, Native Hawaiian Other Pacific Islander, White.6 The accompanyinginstructions provide additional guidance, but merely state, Provide the information regarding your ethnic background and race.  The information will used for federal and/or state law reporting purposes and may used some institutions admission scholarship decisions.7 applicants race referenced at the front his her admissions file.  Fisher Univ. Texas, 645 Supp. 587, 597 (W.D. Tex. 2009). Thus, reviewers are aware [an applicants race]  throughout the evaluation. Id. The District Court concluded that, even though race not determinative, undisputedly meaningful factor that can make difference the evaluation students application. Id. 597-98. See ApplyTexas, Sample Application, https://www. (visited May 23, 2012). 
ApplyTexas Application, U.S. Freshman Admission Applica  Id.  Id.  Id.  See ApplyTexas, Instructions for Completing Your  

tion, (visited May 23, 2012). the following excerpt from the Statement 
Race issued the American Anthropological 
Association May 17, 1998 demonstrates, science
rejected race valid system classification long 
ago: the United States both scholars and the general public have been conditioned viewing human races natural and separate divisions within the human species based visible physical differences.  With the vast expansion scientific knowledge this century, however, has become clear that human populations are not unambiguous, clearly demarcated, biologically distinct groups.  Evidence from the analysis genetics (e.g., DNA) indicates that most physical variation, about 94%,lies within so-called racial groups.  Conventional geographic racial groupings differfrom one another only about their genes. This means that there greater variation within racial groups than between them. 
Historical research has shown that the idea race has always carried more meanings than mere physical differences; indeed, physicalvariations the human species have nomeaning except the social ones that humansput them.  Today scholars many fields argue that race understood the United States America was social mechanism invented during the 18th century refer those populations brought together incolonial America: the English and other European settlers, the conquered Indian peoples,and those peoples Africa brought provide slave labor. they were constructing society, leaders among European-Americans fabricated the cultural/behavioral characteristics associatedwith each race, linking superior traits with Europeans and negative and inferior ones toblacks and Indians. Numerous arbitrary and fictitious beliefs about the different peoples were institutionalized and deeply embedded inAmerican thought. 
Early the 19th century the growing fields ofscience began reflect the public consciousness about human differences. Differences among the racial categories were projected their greatest extreme when the argumentwas posed that Africans, Indians, and Europeans were separate species, with Africans the least human and closer taxonomically apes.  
Ultimately race ideology about humandifferences was subsequently spread otherareas the world. became strategy for dividing, ranking, and controlling colonizedpeople used colonial powers everywhere.  But was not limited the colonial situation. the latter part the 19th century was employed Europeans rank one another and justify social, economic, and political inequalities among their peoples.  DuringWorld War II, the Nazis under Adolf Hitler enjoined the expanded ideology race andracial differences and took them logical end: the extermination million people inferior races (e.g., Jews, Gypsies, Africans, homosexuals, and forth) and other unspeakable brutalities the Holocaust. 
Race thus evolved worldview, body prejudgments that distorts ideas about human differences and group behavior. Racial beliefs constitute myths about the diversity the human species and about the abilities and behavior people homogenized into racial categories. The myths fused behavior and physical features together the public mind, impeding comprehension both biological variations and cultural behavior, implying thatboth are genetically determined.  Racial myths bear relationship the reality human capabilities behavior.  Scientists today find that reliance such folk beliefs about human differences research has led countless errors.8, See American Anthropological Association, Statement ofRace (May 17, 1998), (visited May 23, 2012); see also American Anthropological Association, Response OMB Directive 15: Race and Ethnic Standards for Federal Statistics and Administrative Reporting(Sept. 1997), (visitedMay 23, 2012). The federal government similarly acknowledges that the various categories race and ethnicity that has created for 
Although science may have rejected race long ago, law and public policy, and particular the Universitys admission policy, have yet catch up. time that they did so.  Race has place either. 
The Universitys admissions policy seeks use race and Hispanic Latino ethnicity proxies for diversity. Writing dissent Metro Broadcasting, Inc. FCC, 497 U.S. 547 (1990), overturned Adarand Constructors, Inc., 515 U.S. 227, Justice OConnor challenged whether the use race aproxy for diversity could ever narrowly tailored. issue Metro Broadcasting, Inc. were certain minority preference policies  minorities being defined those Black, Hispanic Surnamed, American Eskimo, Aleut, American Indian, and Asiatic American extraction  that the Federal Communications Commission (FCC) sought use promote diversity programming.  Justice OConnor found that the use race proxy for diversity rests stereotyping, andso could not plausibly deemed narrowly tailored. Id. 617. Justice OConnor explained: 
use the U.S. Census are non-scientific:  The racial categories included the census questionnaire generally reflect social definition race recognized this country and not attempt define race biologically, anthropologically, genetically.  See U.S. Census Bureau, What Race, (visited May 23, 2012). 
The FCC and the majority this Court understandably not suggest how one would define measure particular viewpoint thatmight associated with race, even how one would assess the diversity broadcastviewpoints the interest diversity viewpoints provides legitimate, much less important, reason employ race classifications apart from generalizations impermissibly equating race with thoughts and behavior.   
497 U.S. 614-15. Justice OConnor continued:  
The FCC claims advance its asserted interest diverse viewpoints singling out race and ethnicity peculiarly linked distinct views that require enhancement. The FCCs choice employ racial criterion embodies the related notions that particular and distinct viewpoint inheres certain racial groups, and that particular applicant, byvirtue race ethnicity alone, more valued than other applicants because [he she is] likely provide [that] distinct perspective. The policies directly equate race withbelief and behavior, for they establish race necessary and sufficient condition securing the preference. The FCCs chosen means rest the premise that differences race, the color persons skin, reflect real differences that are relevant persons right share the blessings free society. [T]hat premise utterly irrational and repugnant the principles free and democratic society.  The policies impermissibly value individuals because they presume that persons think manner associated with their race The corollary this notion plain:  Individuals unfavored racial ethnic backgrounds are unlikely possess the uniqueexperiences and background that contribute viewpoint diversity. Both the reasoning andits corollary reveal but disregard what objectionable about stereotype: The racial generalization does not apply certain individuals, and those persons may legitimately claim that they have been judged according their race rather than upon relevant criterion. 
Id. 618-620 (internal quotation marks omitted;citation omitted).   
There meaningful difference between the FCCs use racial stereotyping promote diversity programming broadcasting and the Universitys use racial and ethnic stereotyping promote diversity its student body. Justice OConnors dissent Metro Broadcasting, Inc. applies equally the Universitys admissions policy.  The Universitys policy does not promote diversity. promotes racial and ethnic stereotyping making generalizations that equate applicants race orHispanic Latino ethnicity with his her viewpoints, backgrounds, and experiences. irrelevant whether racial and ethnic stereotyping the result quota, point system, plus factor because, the District Court found, even plus factor is undisputedly meaningful factor that can make difference the evaluation students application.  Fisher, 645 Supp. at597-98. Obviously, the University must believe thatits use race ethnicity-based plus factor meaningful, would not use its admissions policy. Because the Universitys use race and Hispanic Latino ethnicity promote diversity its student body rests stereotyping that equate race and ethnicity with diversity, the policy can never narrowly tailored achieve compellinggovernment interest and therefore cannot survive strict scrutiny. 
The use race and ethnicity proxies for diversity cannot survive strict scrutiny because rests racial and ethnic stereotyping about individuals viewpoints, backgrounds, and experiences.In addition, the Universitys admissions policy also cannot survive strict scrutiny because makes noeffort define the crude racial and ethnic categories that invokes otherwise instructs its applicants how they should self-select their race ethnicity.Obviously, such endeavors are fraught with difficulties. Nonetheless, this failure makes the Universitys use race and ethnicity all the more ambiguousand unsound. 
Because race and ethnicity are crude social constructs, not verifiable, scientific facts, they are inherently ambiguous. This inherent ambiguity compounded the ambiguity applicants self-selecting the race ethnicity which they belong order gain plus factor towards admission.  These dual ambiguities run afoul the Courtsadmonition Adarand Constructors, Inc. that [a]ny person, whatever race, has the right demandthat any governmental actor subject the Constitution justify any racial classification subjecting that person unequal treatment under the strictest judicial scrutiny. 515 U.S. 224.  The use such crude, self-identified, and ambiguous racial andethnic classifications can never narrowly tailored favor one applicant over another. 
The University has chosen use five broad racial categories  American Indian Alaska Native, Asian, Black African American, Native Hawaiian other Pacific Islander, White, and single ethnic category Hispanic Latino  its admissions policy.  None these categories aredefined delineated any meaningful way. Students are left self-identify their race and Hispanic Latino ethnicity.  Unstated what makes one applicant Hispanic Latino, American Indian Alaska Native, Asian, Black African American, Native Hawaiian Pacific Islander, simply White, order granted denied plus factor. The University does notspecify whether applicant must fullblooded member his her self-identified race full-blooded Hispanic Latino, whether 1/2, 1/4, 1/8, 1/16, 1/32 sufficient granted denied the plus factor. Nor does the Universityspecify whether actual ancestral link required for applicant granted denied plus factor for race Hispanic Latino ethnicity, whether cultural affinity some other identification with particular race with Hispanic Latino ethnicity sufficient. 
With one important exception, Question from the ApplyTexas application mirrors the 1997 Revisions the Standards for the Classification Federal Data Race and Ethnicity issued the U.S. Office Management and Budget (OMB).10 Unlike the University, the OMB standards providecursory definitions the racial categories that the standards employ.11 
Equally not more significant the fact that theOMB standards were developed promote uniformity and comparability for data race and ethnicity and provide consistent data race and ethnicity throughout the Federal Government.12  The OMB standards disavow their use for anything other than statistical compilation:   
Foremost consideration should given aggregation race and ethnicity that are 
useful for statistical analysis and program
administration and assessment, bearing 
mind that the standards are not intended See Office Management and Budget, Revisions the Standards for the Classification Federal Data Race and Ethnicity, (Oct. 30, 1997), (visited May 23, 2012). 
Id. used establish eligibility for participation any federal program.13 
Thus, the OMB standards were not intended used the manner which the University using them, much less satisfy the strict scrutiny equal protection analysis. 
Turning the categories themselves, each and every one them ambiguous. The fact that Question offers only one possible choice ethnicity 
 Hispanic Latino  particularly problematic.  Obviously, this single ethnic category does not beginto recognize encompass the tremendous diversityof cultures, languages, religions, and heritages the human race. addition, according April 2012 study bythe Pew Hispanic Center entitled When LabelsDont Fit: Hispanics and Their Views Identity,only twenty-four percent (24%) percent Hispanicadults most often identify themselves the terms Hispanic Latino.14  Fifty one percent (51%) say they identify themselves most often their familys country place origin.15  Twenty one percent (21%) use the term American most often refer themselves.16  This share rises forty percent (40%)
 Id. See Pew Hispanic Center, When Labels Dont Fit:Hispanics and Their Views Identity, (April 2012),, (visited May 23, 2012).
among those who were born the U.S.17  The study also found that self-identification Hispanic orLatino varies depending which generation apersons family immigrated the United States: 
Among first-generation (or immigrant) His
panics, more than six-in-ten (62%) say they 
most often use their familys country origin describe themselves.  Among second-
generation Hispanics, the share using their 
familys country origin falls 43%.  And 
among third-generation Hispanics, the share 
falls just 28%less than half that seen
among immigrant Hispanics.  Not surprising
ly, the use the term American increases mirror-image pattern.  While just
migrant Hispanics most often call themselves 
American, that share rises 35% among
cond-generation Hispanics and 48% among 
third-generation Hispanics.18 
The study concluded that, although federal law requires the U.S. government categorize and collect data Hispanics, the governments system ethnic and racial labeling does not fit easily with Latinos own sense identity. 
Also undefined the Universitys policy whether the terms Hispanic and Latino  refer persons full partial Spanish ancestry only, also persons other European ancestry such the Germans and Italians and persons Jewish background who immigrated predominantlySpanish speaking countries Central and South America and the Caribbean before immigrating tothe United States. also unclear whether Question 7s reference South America or other Spanishculture origin includes Portuguese-speaking Brazil.  Id.  Id. 12.  Id.  

With respect the American Indian Alaska Native racial category, the Native Americans RightsFund acknowledges that [t]here exists universally accepted rule for establishing persons identity Indian.20  While the OMB standards created for data collection purposes define American Indian Alaska Native A person having originsin any the original peoples North America andSouth America (including Central America), and whomaintains tribal affiliation community attachment, Question provides definition whatsoever.21  The Universitys policy completely silent who entitled plus factor for being American Indian Alaska Native. 
The recent controversy over former Special Advisor the Secretary the Treasury and U.S. Senate candidate Elizabeth Warren highlights the See Native American Rights Fund, Answers Frequently 
Asked Questions About Native Peoples, (visited May 23, 2012). See Office Management and Budget, Revisions the 
Standards for the Classification Federal Data Race and 
Ethnicity, (Oct. 30, 1997),
fedreg_1997standards/ (visited May 23, 2012).
multiple ambiguities inherent the Universitys reliance undefined, self-identified, and inherently ambiguous categories race and ethnicity its admissions policy.  Based nothing more than family lore and high cheek bones, Ms. Warren claimed, perhaps quite sincerely, that she was1/32nd Cherokee and therefore Native American and minority.22 Under the Universitys policy, applicant who similarly identified herself American Indian based family lore and highcheekbones would gain plus factor toward admission, but identical applicant without this same family lore high cheek bones (or who was unaware that one her great-great-great grandparents happened Cherokee) would not.  Imagine freshman class the University comprised 6,715 Elizabeth Warrens, all identical but for the difference the race ethnicity single great-great-great grandparent.23  How much additional diversity would the University have achieved bytaking the race and ethnicity these students into account the admissions process?    
The University makes effort whatsoever define the term Asian, which just commonly refers the four billion human beings who inhabit the largest and most populous continent Earth asit does single race people. lumps together Lucy Madison, Warren explains minority listing, talks
grandfathers high cheekbones, CBS News, (May 2012),
warren-explains-minority-listing-talks-of-grandfathers-highcheekbones/ (visited May 23, 2012). The Universitys 2010 freshman class was comprised   
6,715 students.  Fisher, 645 Supp. 590.
the two most populous countries the planet, China and India, each which has more than billion people and multitude languages, cultures, and religions. unclear whether the Universitys use the term includes applicants who are whose ancestors were full partial Near Middle Eastern origin, including persons full partial Arab, Armenian, Azerbaijani, Georgian, Kurdish,Persian, Turkish descent, whether such applicants are considered White. The term Asian anything other than geographic reference largely meaningless. 
Defining who Black deeply sensitive subject, inextricably woven into the history slavery and segregation the United States.  Perhapsmost illustrative the infamous case Plessy Ferguson, 163 U.S. 537 (1896). Homer Plessy considered himself White, but the State Louisiana considered him Black because one his great grandparents had been from Africa, making him 7/8ths White and 1/8th Black.  Id. 541. When Mr. Plessy took seat railroad car reserved for Whites, was forcibly ejected and imprisoned New Orleans jail for violating statute requiring equal but separate accommodations for the white[] and colored races. Id. 540. This Court upheld the constitutionality the Louisiana statute, noting: true that the question the proportion
colored blood necessary constitute colored 
person, distinguished from white person, one upon which there difference opin
ion the different States, some holding that
any visible admixture black blood stamps 
the person belonging the colored race, 
others that depends upon the preponder
ance blood, and still others that the predom
inance white blood must only the pro
portion three fourths. 
Id. 552 (citations omitted). Perhaps because the deep sensitivity the subject, the University makes effort define what means its use ofthe term Black African American its admissions policy.  However, its failure further highlights the inequality that its use race creates. two applicants are both European and Africanancestry, but one applicant self-identifies Black and the other applicant self-identifies both Black and White, both applicants receive the same plus factor? one applicant self-identifies asBlack and the other, like Mr. Plessy, self-identifies White, should the latter applicant denied theplus factor? 
The final category White really appears tomean None the Above. with all the Universitys categories for race and its single category Hispanic Latino ethnicity, this category ignores the multitude experiences, immigration paths, political histories, and socioeconomic statuses themillions immigrants who came the United States over centuries. treats one undefined mass all persons European ancestry  English, French, German, Greek, Irish, Italian, Czech, Polish, and Russian, name just few  regardless their often very different backgrounds and personalhistories. Using White single, catch-all category for None the Above puts the lie the interest diversity that the Universitys use race and ethnicity purportedly promotes.   
The Universitys racial and ethnic categories cannot withstand moments scrutiny, much less the strict scrutiny required the Equal Protection Clause. Ultimately, however, the point not that the University must adopt standardized test which ascertains and verifies the race ethnicity each applicant, but that the crude social constructs race and ethnicity are too inherently ambiguous survive strict scrutiny, especially given the mixing cultures, heritages, and nationalitiesso prevalent the backgrounds many Americans.  They can never narrowly tailored further compelling governmental interest. 
Other courts have weighed the inherentambiguity race and ethnicity well. 2008, one prominent jurist, the Honorable Jack Weinstein the U.S. District Court for the Eastern District New York, addressed the issue length rejectingthe use racially-based life expectancy tables and related data find reduced life expectancy for African-American claimant: the United States, there has been racial 
mixing among Whites, Africans, Native 
Americans, and individuals other racial and ethnic backgrounds for more than three and half centuries. See, e.g., Annette Gordon-Reed, The Hemingses Monticello: American Family 660 (2008) (Thomas Jefferson fathered children with his mixed blood slave Sally Hemings. [T]he choices the children Sally Hemings and Thomas Jeffersonmade would separate their lines forever.  Three would live the white world, and one would remain the black world.); Gregory Howard Williams, Life the Color Line: The True Story White Boy Who Discovered Was Black (1996) Clear-eyed observers ofthe American scene scoff the use blood characterizing race. See, e.g., Mark Twain, Puddnhead Wilson (1894) (Whiteand Black babies who looked White taken home wrong mothers and raised inadvertently wrong racial categories). 
McMillan City New York, 253 F.R.D. 247, 249 
(E.D.N.Y. 2008) (Weinstein, J.). section entitled Race Biological Fiction, the Court noted: 
Franz Boas, the great Columbia University Anthropologist, pointed out that [e]very classification mankind must more less artificial; exposed much the false cant racial homogeneity when declared that no racial group genetically pure. Quoted Keay Davidson, Franz Boas American National Biography (1999) The Concept Race (Ashley Montagu, ed., 1964) (thebiological concept race has become unacceptable growing number biologists); James King, The Biology Race 146 (2ded. 1981) (estimates the proportion genetic material from white ancestry American blacks range all the way from few per cent [sic] more than percent). 
Id. 249. The Court continued: 
DNA technology finds little variation amongraces (humans are genetically 99.9% identical), and difficult pinpoint any racial identity individual through his her genes. International gene mapping projectshave only revealed variations strings ofDNA that correlate with geographic differences phenotypes among humans aroundthe world, the reality being that the diversity human biology has little common with socially constructed racial categories.   
Id. 250 (citations omitted). 
Another court found that the term Hispanic was nothing more than self-identification:  
[w]hether not person Hispanic nota biological characteristic but psychologicalcharacteristic how one identifies himself herself. not simply whether one has some Spanish ancestry whether one speaks Spanish first language [I]f Hispanic man married admittedly non-Hispanic woman and they had children, the children would have make decision about whether they would identify themselves Hispanic [F]actors such whether the children are living with the father, how they feel aboutthemselves, and the neighborhood where theylive would influence whether the children would identify themselves Hispanic. persons surname not definite indicator. Some last names persons who may considerthemselves Hispanic may not may not appear Spanish derivation. Conversely, woman admittedly non-Hispanic descent may take her husbands Hispanic surname upon marriage. Suffice say that whether person Hispanic the finalanalysis depends whether that person considers himself herself Hispanic. 
United States Ortiz, 897 Supp. 199, 203 (E.D.Pa. 1995). 1938, Justice Stone proposed more searching judicial inquiry for reviewing government action based race, thus giving rise the strict scrutiny standard. United States Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). the intervening year period, much has been learned about race,including that crude, inherently ambiguous social construct that has validity science. Race and ethnicity-based admissions policies enacted achieve diversity are unconstitutional because theyclassify applicants crude, inherently ambiguous, and unsound racial and ethnic categories and rest racial and ethnic stereotyping. They represent astep back from the tremendous advances towardsfulfillment the promise the Equal Protection Clause that have occurred since Carolene Products Co. the Circuit Courts concurring opinion observed: 
Given the highly personal nature the college admissions process, this kind class-based discrimination poses especially acute threat resentment and its corollary  entitlement. More fundamentally, assures that race will always relevant American life, and that the ultimate goal eliminating entirely from governmental decisionmaking such irrelevant factors human beings race will never achieved. 
Fisher Univ. Texas, 631 F.3d 213, 265-66 (5thCir. 2011) (Garza, J., concurring) (internal citations omitted). fulfill the promise the Equal Protection Clause, the Court should find that race and ethnicity can never narrowly tailored promotediversity admissions policies and therefore cannot survive strict scrutiny. 

For the foregoing reasons, Amici respectfully request that this Court reverse the decision theCircuit Court. 
       Respectfully submitted,
       Paul Orfanedes 
Counsel Record
       Chris Fedeli JUDICIAL WATCH, INC.        425 Third Street, S.W.        Ste. 800        Washington, D.C. 20024
(202) 646-5172
       Counsel for Amici Curiae
       May 29, 2012