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Judicial Watch • Filed Amicus Brief and Motion Fisher v UT

Filed Amicus Brief and Motion Fisher v UT

Filed Amicus Brief and Motion Fisher v UT

Page 1: Filed Amicus Brief and Motion Fisher v  UT

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Number of Pages:21

Date Created:August 5, 2014

Date Uploaded to the Library:August 06, 2014

Tags:Fisher, motion, Supreme Court


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STATEMENTS AMICI AND INTERESTED PARTIES 
 
   Pursuant Fed. App. 26.1 and Fed. App. 29(c)(1), undersigned counsel for amici state that Judicial Watch, Inc. and the Allied Educational Foundation are non-profit organizations.  They have stock parent corporation. such, public company owns 10% more their stock.1 Pursuant Fed. App. 29(c)(4), amici Judicial Watch, Inc. and the Allied Educational Foundation hereby incorporate the statements the identity the parties, party interests, and authority file contained their separate Motion for Leave file this amicus brief, which being filed simultaneously with this court.  Pursuant Fed. App. 29(c)(5), the parties have given blanket consent the filing amicus briefs. counsel for party has authored this brief whole part, and person other than amici their counsel has made monetary contribution intended fund the preparation submission the brief.    
 Pursuant Fifth Cir. 29.2, only the amici this brief, undersigned counsel, and the persons and attorneys listed Petitioners their Petition for Rehearing Banc have interest this amicus curiae brief.  
TABLE CONTENTS 
 
 
STATEMENTS AMICI AND INTERESTED PARTIES .............................. 
TABLE CONTENTS .......................................................................................... 
TABLE CITATIONS ........................................................................................ iii 
ARGUMENT ............................................................................................................. 
CONCLUSION .......................................................................................................... 
CERTIFICATE SERVICE AND ELECTRONIC FILING .............................. 
  
TABLE CITATIONS 
 
CASES                   PAGE  
Fisher Univ. Texas, 133 Ct. 2411 (2013) .................................................. 
 
Fisher Univ. Texas, Case No. 09-50822 (5th Cir. 2014) ................................... 
 
Fisher Univ. Texas, 645 Supp. 587 (W.D. Tex. 2009)  ........................ 
 
McMillan City New York, 253 F.R.D. 247 (E.D.N.Y. 2008)  ............................ 
 
Plessy Ferguson, 163 U.S. 537 (1896)  ................................................................. 
  
United States Ortiz, 897 Supp. 199 (E.D. Pa. 1995)  ........................................    
OTHER AUTHORITIES 
 
American Anthropological Association, Statement Race, (May 17, 1998)  available http://www.aaanet.org/stmts/racepp.htm  .................................... 
 
American Anthropological Association, Response OMB Directive 15, (Sept. 1997) available http://www.aaanet.org/gvt/ombdraft.htm .......................... 
 
ApplyTexas, Sample Application, available https://www.applytexas.org/adappc/html/preview12/frs_1.html  ................................................................. 
 
Lucy Madison, Warren explains minority listing, talks grandfathers high cheekbones, CBS News, (May 2012), available http://www.cbsnews.com/8301-503544_162-57427355-503544/warren-explains-minority-listing-talks-of-grandfathers-high-cheekbones/  .............................................. 
 
Native American Rights Fund, Answers Frequently Asked Questions About Native Peoples, available http://www.narf.org/pubs/misc/faqs.html ........ 
 
Pew Hispanic Center, When Labels Dont Fit:  Hispanics and Their Views Identity, (April 2012), available http://www.pewhispanic.org/2012/04/04/when-labels-dont-fit-hispanics-and-their-views-of-identity/  ..............   
 
ARGUMENT 
   
The University Texas Austins (UT) diversity program fails strict scrutiny because loosely categorizes individuals into unsound and ambiguous racial and ethnic groups, and not narrowly tailored.  The Supreme Courts opinion Fisher establishes that even allegedly benign racial discrimination used achieve diversity must subject exacting strict scrutiny.  Fisher Univ. Texas, 133 Ct. 2411, 2421 (Fisher) (Strict scrutiny must not strict theory but feeble fact.).  The Fifth Circuit panel failed apply this standard. remand, rather than undertake rigorous analysis the UTs use racial categorization, the panel merely excused UTs lack conformity Fisher.  For instance, the panel relied UTs critical mass diversity target, phrase that undefined and largely undefinable.  Fisher Univ. Texas, Case 09-50822, 5th Cir. 2014 (Slip Op.) 30; Id., Garza dissent 44.  And this unknowable critical mass standard only the tip the iceberg.  Elsewhere, the Fifth Circuit panel finds may use race promote not only diversity, but special kind holistic diversity.  Slip Op. 21.  This concept holistic diversity, diversity within diversity, similarly ambiguous and, Judge Garza explains, too imprecise permit the requisite strict scrutiny analysis.  Slip Op. 56.    
These unintelligible measures are only compounded the underlying ambiguity UTs policy allowing applicants self-select the race which 
they belong order gain plus factor towards admission. the American Anthropological Association (AAA) has explained, racial categories are simultaneously too crude convey accurate information about individuals and groups,2 and also too likely convey misinformation.  Id.  The AAA has even recommended the government phase-out its use racial categories.3  Because race is, essence, social construct, inherently ambiguous.  This ambiguity compounded the ambiguity allowing applicants self-select their race order gain plus factor towards admission. light these dual ambiguities, has not demonstrated that narrowly tailored its racial admissions policy.  American Anthropological Association, Statement Race, (May 17, 1998) available http://www.aaanet.org/stmts/racepp.htm (In 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).  American Anthropological Association, Response OMB Directive 15, (Sept. 1997) available http://www.aaanet.org/gvt/ombdraft.htm.  ([T]he effective elimination discrimination will require end such categorization, and transition toward social and cultural categories that will prove more scientifically useful and personally resonant for the public than are categories race.). 
Following the Supreme Courts ruling Fisher, the Fifth Circuit was required evaluate whether UTs racial categorization program survived strict scrutiny based the existing record this case.  Fisher, 133 Ct. 2421. closer review that record shows that UTs system racial classification 
extraordinarily simplistic.  Applicants are required complete and submit standardized ApplyTexas application.  The application asks for yes answer the question, Are you Hispanic Latino? person Cuban, Mexican, Puerto Rican, South Central American, other Spanish culture origin, regardless race).4  Applicants are directed select the racial category categories with which you most closely identify, choosing one more American Indian Alaska Native, Asian, Black African American, Native Hawaiian Other Pacific Islander, White.  Id.  The District Court concluded that, even though race not determinative, undisputedly meaningful factor that can make difference the evaluation students application.  Fisher Univ. Texas, 645 Supp. 587, 597-98 (W.D. Tex. 2009).  ApplyTexas, Sample Application, available https://www.applytexas.org/adappc/html/preview12/frs_1.html. 
UTs reliance five broad racial categories and single ethnic category achieve holistic diversity not narrowly tailored.  Students must self-identify their race, but remains unclear what makes one applicant Hispanic Latino, American Indian Alaska Native, Asian, Black African American, Native Hawaiian Pacific Islander, simply White. does not specify whether applicant must full-blooded member his her self-identified race ethnic group, whether 1/2, 1/4, 1/8, 1/16, 1/32 sufficient granted denied the plus factor.   
The fact that Question offers only one possible choice ethnicity  Hispanic Latino  particularly problematic.  Obviously, this single ethnic category does not begin recognize encompass the tremendous diversity cultures, languages, religions, and heritages the human race.  Also undefined UTs 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 predominantly Spanish speaking countries Central and South America and the Caribbean before immigrating the United States. also unclear whether Question 7s reference South America or other Spanish culture origin includes Portuguese-speaking Brazil. addition, according April 2012 study the Pew Hispanic Center, only twenty-four percent (24%) percent Hispanic adults self-identify the terms Hispanic Latino.5  Fifty one percent (51%) say they self-identify their familys country place origin, and twenty one percent (21%) use the term American most often refer themselves.  Id.  The study concluded that this system ethnic and racial labeling does not fit easily with Latinos own sense Pew Hispanic Center, When Labels Dont Fit:  Hispanics and Their Views Identity, (April 2012), available http://www.pewhispanic.org/2012/04/04/when-labels-dont-fit-hispanics-and-their-views-of-identity/   
identity. Id.  And least one court has found that the term Hispanic itself nothing more than self-identification:  
[w]hether not person Hispanic not biological characteristic but psychological characteristic how one identifies himself herself. not simply whether one has some Spanish ancestry whether one speaks Spanish first language persons surname not definite indicator [W]hether person Hispanic the final analysis depends whether that person considers himself herself Hispanic. 
 
United States Ortiz, 897 Supp. 199, 203 (E.D. Pa. 1995).   
 With respect the American Indian Alaska Native racial category, the Native Americans Rights Fund acknowledges that [t]here exists universally accepted rule for establishing persons identity Indian.6  UTs policy completely silent who entitled plus factor for being American Indian Alaska Native.  This definitional problem was highlighted the controversy over Senator Elizabeth Warren during her 2012 campaign for Senate.  Based nothing more than family lore and high cheek bones, Ms. Warren claimed, perhaps quite sincerely, that she was 1/32nd Cherokee and therefore Native American and minority.7  Under UTs policy, applicant who similarly identified herself American Indian based family lore and high  Native American Rights Fund, Answers Frequently Asked Questions About Native Peoples, available http://www.narf.org/pubs/misc/faqs.html.  Lucy Madison, Warren explains minority listing, talks grandfathers high cheekbones, CBS News, (May 2012), available http://www.cbsnews.com/8301-503544_162-57427355-503544/warren-explains-minority-listing-talks-of-grandfathers-high-cheekbones/.  
cheekbones 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 comprised 6,715 Elizabeth Warrens, all identical but for the difference the race ethnicity single great-great-great grandparent.  See Fisher Univ. Texas, 645 Supp. 587, 590 (there were 6,715 students UTs 2010 freshman class).  How much additional holistic diversity would actually have achieved taking the race these students into account the admissions process? 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 does single race people. lumps together 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 UTs 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.   
 Defining who Black divisive, problematic, and highly sensitive subject, inextricably woven into the history slavery and segregation the United States.  
But like the self-identified categories Hispanic, American Indian, White, Asian, too ambiguous. Plessy Ferguson, 163 U.S. 537 (1896), Homer Plessy self-identified White, but the State Louisiana considered him Black because one his great grandparents was from Africa, making him 7/8ths White and 1/8th Black.  Id. 541.  The Supreme Court observed: true that the question the proportion colored blood necessary constitute colored person, distinguished from white person, one upon which there difference opinion the different States, some holding that any visible admixture black blood stamps the person belonging the colored race, others that depends upon the preponderance blood, and still others that the predominance white blood must only the proportion three fourths.  
 
Id. 552. considering race admissions, perpetuates this same bizarre fiction alive the days Plessy.  And yet, even today, has better answer the question who Black African American than the Supreme Court attempted 1896. makes effort define what means its use the term Black African American its admissions policy.  Its failure further highlights the inequality that its use race creates. two applicants are both European and African ancestry, 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 Black and the other, like Mr. Plessy, self-identifies White, should the latter applicant denied the plus factor? 2008, U.S. District Court addressed this same issue, but rejected outright the use race factor damage calculations, observing:      
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. [T]he reality [is] that the diversity human biology has little common with socially constructed racial categories.   
 
McMillan City New York, 253 F.R.D. 247, 249-250 (E.D.N.Y. 2008). 
CONCLUSION 
 Amici respectfully request that the Petition granted.  
  
Dated:  August 2014    Respectfully submitted, Paul Orfanedes  
Paul Orfanedes Chris Fedeli           
Chris Fedeli  
 
JUDICIAL WATCH, INC. 
425 Third Street SW, Suite 800 
Washington, 20024 
(202) 646-5172 (phone) 
(202) 646-5199 (fax) 
porfanedes@judicialwatch.org 
cfedeli@judicialwatch.org Counsel Record 
   
  
CERTIFICATE SERVICE AND ELECTRONIC FILING hereby certify, pursuant Fed. App. 25(d)(2), that electronically filed the foregoing with the Clerk the United States Court Appeals for the Fifth Circuit using the appellate CM/ECF system. certify that the parties the case are registered CM/ECF users and that service will accomplished the appellate CM/ECF service.   
 
Dated:  August 2014 Chris Fedeli   
 
 

 
INTRODUCTION 
Pursuant Fifth Cir. 29.1 and Fed. App. and 29(b), Judicial Watch, Inc. and the Allied Educational Foundation (proposed amici), and through undersigned counsel, respectfully move for leave file the attached amicus curiae brief support  Petitioners Request for Banc Review.  Pursuant Fifth Cir. 27.4, all parties have indicated they will not oppose this Motion.  Pursuant Fed. App. 26.1, Fed. App. 29(c)(1), and Fifth Cir. Rules 28.2.1 and 29.2, proposed amici hereby incorporate the Statement Amici and Interested Parties included with their separate amicus curiae brief, which being filed simultaneously with this Court.    
IDENTITY AND INTERESTS THE AMICI 
Judicial Watch non-partisan, public interest organization headquartered Washington, DC.  Founded 1994, Judicial Watch seeks promote accountability, transparency and integrity government, and fidelity the rule law. furtherance these goals, Judicial Watch regularly files amicus curiae briefs and prosecutes lawsuits matters believes are public importance.  Judicial Watch has appeared amicus curiae multiple federal courts numerous occasions.     
The Allied Educational Foundation (AEF) nonprofit charitable and educational foundation based Englewood, New Jersey.  Founded 1964, AEF dedicated promoting education diverse areas study.  AEF regularly files amicus curiae briefs means advance its purpose and has appeared amicus curiae federal courts numerous occasions.   
Amici are concerned that the Fifth Circuit panel decision violates the Supreme Courts ruling Fisher and the Equal Protection Clause the Fourteenth Amendment the U.S. Constitution, and are concerned about the corrosive effect that violation the rule law.  The panels decision especially harmful because attempts further enshrine the intellectually impoverished concept race into law, and seeks perpetuate culture racial and ethnic politics American public life.  Amici are further concerned about the corrosive effect the panels unlawful decision American society.  
AUTHORITY FILE 
Courts have recognized they have broad discretion whether permit non-party participate amicus curiae. explained then-Judge Alito, [e]ven when party well represented, amicus may provide important assistance the court.  Neonatology Assocs., P.A. Commissioner Internal Revenue, 293 F.3d 128, 132 (3rd Cir. 2002).  Indeed, the federal courts regularly permit parties with various interests appear amici, reasoning that restrictive policy with respect granting leave file may create least the perception viewpoint discrimination.  Neonatology Assocs., P.A., 293 F.3d 133.   
 Amici regularly file briefs expounding how the Equal Protection Clause functions eliminate racial considerations from the law, and why even the so-called benign use racial classifications disfavored.1  Amici filed one such brief 2012 this very case before the U.S. Supreme Court.2   Accordingly, amicis familiarity and experience with these legal issues ensures that their contribution will aid this Court its consideration.  Amicus Curiae Brief Judicial Watch and Allied Educational Foundation, American Insurance Association al. U.S. Department Housing and Urban Development, Case No. 1:13-cv-966 (filed with U.S. District Court for February 2014), available http://alliededucationalfoundation.org/legalbriefs/2014%20Briefs/AIA%20v%20HUD.PDF see also Amicus Curiae Brief Judicial Watch and Allied Educational Foundation, Schuette Coalition Defend Affirmative Action, Case No. 12-682 (filed with U.S. Supreme Court July 2013), available http://alliededucationalfoundation.org/legalbriefs/2013%20Briefs/shuette%20v%20coalition%20(1).PDF; see also Amicus Curiae Brief Judicial Watch, Mount Holly Mount Holly Gardens Citizens Action, Case No. 11-1507 (filed with U.S. Supreme Court September 2013), available http://sblog.s3.amazonaws.com/wp-content/uploads/2013/09/11-1507tsacJudicialWatchInc.pdf.  Amicus Curiae Brief Judicial Watch and Allied Educational Foundation, Fisher University Texas Austin, Case No. 11-345 (filed with U.S. Supreme Court May 29, 2012), available http://sblog.s3.amazonaws.com/wp-content/uploads/2012/06/Final-11-345-JudicialWatch-Brief.pdf.    
Finally, amici are raising issues which are not significantly addressed the parties, and which may helpful the Courts evaluation the Petition for Rehearing.  Specifically, amici are focusing their arguments the fact that race ambiguous and unscientific concept which extremely difficult not impossible narrowly tailor.  Further, amici argue that the Fifth Circuit panel 
decision, allowed stand, will serve increase racial polarization and resentment this country, perpetuating our domestic focus racial issues.  This will inevitably and unnecessarily prolong the misconception that persons race useful distinction for judging who person and what they are entitled to.  Amici argue that, ultimately, the only mention the troubled concept race the law should the prohibition its use basis for making discriminatory judgments about individuals.  Any divergence from this principle must extraordinarily narrow.     
CONCLUSION 
 For the foregoing reasons, proposed amici respectfully requests that this Motion granted.  
Dated:  August 2014    Respectfully submitted, Paul Orfanedes  
Paul Orfanedes Chris Fedeli           
Chris Fedeli  
 
JUDICIAL WATCH, INC. 
425 Third Street SW, Suite 800 
Washington, 20024 
(202) 646-5172 (phone) 
(202) 646-5199 (fax) 
porfanedes@judicialwatch.org 
cfedeli@judicialwatch.org Counsel Record 
  
 
 
 
 
 
 
 
  
CERTIFICATE SERVICE AND ELECTRONIC FILING hereby certify, pursuant Fed. App. 25(d)(2), that electronically filed the foregoing with the Clerk the United States Court Appeals for the Fifth Circuit using the appellate CM/ECF system. certify that the parties the case are registered CM/ECF users and that service will accomplished the appellate CM/ECF service.   
 
Dated:  August 2014 Chris Fedeli