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Judicial Watch • Fisher v U TX Austin 981 amicus race conscious admissions

Fisher v U TX Austin 981 amicus race conscious admissions

Fisher v U TX Austin 981 amicus race conscious admissions

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Date Created:March 11, 2015

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No. 14-981 THE
Supreme Court the United States
_________
ABIGAIL NOEL FISHER,
Petitioner,
UNIVERSITY TEXAS AUSTIN, al.
Respondents.
_________ Petition for Writ Certiorari the United
States Court Appeals for the Fifth Circuit
_________
BRIEF AMICI CURIAE JUDICIAL
WATCH, INC. AND ALLIED EDUCATIONAL
FOUNDATION SUPPORT PETITIONER
_________
Paul Orfanedes
Chris Fedeli
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street SW, Ste. 800
Washington, 20024
(202) 646-5172
cfedeli@judicialwatch.org
porfanedes@judicialwatch.org
Counsel for Amici Curiae
Dated: March 12, 2015
LEGAL PRINTERS
LLC,
Washington 202-747-2400 legalprinters.com
TABLE CONTENTS
PAGE
TABLE CONTENTS .............................................
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY THE ARGUMENT ............................2
REASONS FOR GRANTING THE PETITION .........3 The Fifth Circuit Decision Violates Both the
Constitution and this Court 2013 Ruling
this Case ................................................................3
II. This Case Presents Important and
Recurring Question Regarding the Use Race College Admissions Which This Court Must
Resolve ................................................................14
CONCLUSION ..........................................................17
TABLE AUTHORITIES
CASES
Adarand Constructors Pena,
515 U.S. 200 (1995) ...........................................4
Fisher Univ. Texas,
133 Ct. 2411 (2013)................................. passim
Fisher Univ. Texas,
758 F.3d 633 (5th Cir. 2014) ..............................4
Fisher Univ. Texas,
645 Supp.2d 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) .................................. 12,
United States Ortiz,
897 Supp. 199 (E.D. Pa. 1995) .......................7
OTHER AUTHORITIES
American Anthropological Association,
Statement Race (May 17, 1998),
http://www.aaanet.org/stmts/racepp.htm ......9,
iii
American Anthropological Association,
Response OMB Directive 15: Race and
Ethnic Standards for Federal Statistics and
Administrative Report ing (Sept. 1997),
http://www.aaanet.org/gvt/ombdraft.htm ...........10
ApplyTexas, Sample Application,
https://www.applytexas.org/adappc/html/
preview12/frs_1.html ............................................5
Complaint, Students for Fair Admissions University North Carolina, filed U.S. District Court
for the Middle District North Carolina, Nov.
17, 2014, available http://studentsforfairadmissions.org/wp-content/uploads/2014/11/SFFAv.-UNC-Complaint.pdf .......................................
Gail Sullivan, Harvard University targeted
affirmative action opponents, Nov. 19, 2014,
Washington Post, available http://www.
washingtonpost.com/news/morning-mix/wp/2014/
11/19/affirmative-action-opponents-just-targetedthe-big-one-harvard-university/ ..........................15
Jerome Karabel, The Chosen: The Hidden History
Admission and Exclusion Harvard, Yale, and
Princeton, Houghton Mifflin Co. (2005) .............15
Lucy Madison, Warren explains minority listing,
talks grandfather high cheekbones, CBS
News, (May 2012), http://www.cbsnews.com/
8301-503544_162- 57427355-503544/warrenexplains-minority-listing-talks-of-grandfathershigh-cheekbones/....................................................8
Native American Rights Fund, Answers Frequently Asked Questions About Native
Peoples, http://www.narf.org/pubs/misc/
faqs.html ...........................................................7,
Office Management and Budget, Revisions the Standards for the Classification Federal
Data Race and Ethnicity, (Oct. 30, 1997),
http://www.whitehouse.gov/omb/fedreg_
1997standards/.....................................................11
Pew Hispanic Center, When Labels Don Fit:
Hispanics and Their Views Identity, (April
2012), http://www.pewhispanic.org/2012/04/04/
when- labels-dont-fit-hispanics-and-theirviews-of-identity/ ...............................................6,
U.S. Census Bureau, What Race, available
http://www.census.gov/population/race .............13
INTERESTS THE AMICI CURIAE
Judicial Watch, Inc. Judicial Watch nonpartisan educational organization that seeks
promote transparency, accountability and integrity 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
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 this Court
number occasions.
The decision the U.S. Court Appeals for the
Fifth Circuit raises important issues constitutional law that should addressed this Court.
particular, amici are concerned that the Fifth Circuit ruling, allowed stand, will serve increase racial polarization and resentment this
country, needlessly perpetuating destructive focus Pursuant Supreme Court Rules 37.2 and 37.6, amici curiae
state that all parties have been notified the filing this
brief, letters reflecting blanket consent have been filed with the
Clerk, counsel for party authored this brief whole
part, and person entity, other than amici curiae and their
counsel, made monetary contribution intended fund the
preparation and submission this brief. racial issues and prolonging the misconception
that race valid legitimate concept. Amici
argue that, ultimately, the only mention race
the law should its prohibition. Any divergence
from this principle must extraordinarily narrow,
and for remedial purposes only.
The Fifth Circuit decision again uphold the
University Texas Austin University race-conscious admissions policy odds with
this Court decision Fisher University Texas,
133 Ct. 2411 (2013). Amici are concerned about
the corrosive effect that affirming race-conscious
government activity has American society and the
rule law. Among the harms caused the Fifth
Circuit decision upholding policy are: the
further enshrinement the intellectually impoverished concept race into law; the perpetuation
culture racial and ethnic politics American
public life; and the increase racial intolerance
American society.
For these and other reasons, amici urge the
Court grant the Petition for Writ Certiorari.
SUMMARY THE ARGUMENT
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 seeks classify applicants
crude, inherently ambiguous, and arbitrary racial
and ethnic categories promote diversity, but
instead encourage stereotyping, can never narrowly tailored further compelling government
interest. They not survive strict scrutiny. For
these and other reasons, the Petition presents matters great public importance that should decided this Court.
REASONS FOR GRANTING THE PETITION The Fifth Circuit Decision Violates Both
the Constitution and this Court 2013
Ruling this Case admissions program fails strict scrutiny because relies crude, inherently ambiguous, and
arbitrary racial and ethnic categories pursuit undefined critical mass diversity. This
Court opinion Fisher established that using even
allegedly benign racial discrimination search
diversity subject exacting strict scrutiny. Fisher Univ. Texas, 133 Ct. 2411, 2421 (2013) Fisher Strict scrutiny must not strict
theory but feeble fact. The Fifth Circuit failed apply this high standard.
Rather than undertake rigorous analysis the
University use race and ethnicity choose
between applicants for admission, the Fifth Circuit
merely excused failure satisfy Fisher.
credited critical mass diversity target, which
was never defined, largely undefinable, and therefore cannot narrowly tailored further compel-
ling governmental interest. Fisher Univ. Texas,
758 F.3d 633, 654 (5th Cir. 2014) Remand Opinion Id., Judge Garza dissent 661. critical mass standard was only the tip
the iceberg. upholding policy, the Fifth
Circuit found that and presumably other
colleges and universities the Fifth Circuit may
use race and ethnicity not only pursuit
undefined critical mass diversity, but also its
search for holistic diversity. Remand Opinion, 758
F.3d 659. Like critical mass, this holistic
diversity, diversity within diversity Judge
Garza referred his dissent, was also undefined. Remand Opinion, Judge Garza dissent, 758
F.3d 669. Judge Garza wrote, these abstractions are too imprecise permit the requisite strict
scrutiny analysis. Id. And Petitioner demonstrates, they are too vague ever narrowly
tailored. See Petition For Writ Certiorari, No. 14981, filed Feb. 10, 2015, pp. 13, 18, 22-27.
The unintelligibility critical mass diversity target only compounded the ambiguity underlying policy allowing applicants
self-select their race Hispanic/Non-Hispanic
ethnicity order gain plus factor towards
admission. The policy fails strict scrutiny because not narrowly tailored. Adarand Constructors
Pena, 515 U.S. 200, 227 (1995) [R]acial classifications are constitutional only they are narrowly
tailored measures that further compelling government interests. Because racial and ethnic categories are crude, inherently ambiguous, and arbitrary
social constructs, especially when reliant selfidentification, their use college admissions can
never narrowly tailored for purposes strict
scrutiny.
Following the Supreme Court ruling Fisher,
the Fifth Circuit was required evaluate whether racial admissions program survived strict
scrutiny based the existing record this case.
Fisher, 133 Ct. 2421. closer review that
record shows that system racial classifications extraordinarily simplistic. Applicants
are required complete and submit standardized
ApplyTexas application. question number
the application, applicants are asked for yes
answer the question, Are you Hispanic Latino? person Cuban, Mexican, Puerto Rican, South
Central American, other Spanish culture
origin, regardless race). Applicants are then
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
student 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 (visited Feb.
20, 2015). 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, even 1/32 sufficient granted denied the plus factor.
The fact that the admissions application 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 policy
whether the terms Hispanic and Latino refer
persons full partial Spanish ancestry only,
also persons other European ancestry. For
instance, many ethnic Germans, Italians, and Jews
migrated predominantly Spanish-speaking countries Central and South America and the Caribbean before immigrating the United States. also unclear whether the admissions application
reference South America 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. Fifty one percent
(51%) say they self-identify their family 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
Latino own sense 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
person 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 category, the Native Americans Rights Fund
acknowledges that [t]here exists universally
accepted rule for establishing person identity Pew Hispanic Center, When Labels Don Fit: Hispanics and
Their Views Identity, (April 2012), available
http://www.pewhispanic.org/2012/04/04/when-labels-dont-fithispanics-and-their-views-of-identity/. Indian. 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.5 response, many people
predictably expressed doubt that classifying Senator
Warren Native American based system
racial self-identification made any sense, much less
served legitimate purpose.
Under policy, applicant who, like the
Senator, identifies herself American Indian
based family lore and high 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 race ethnicity single greatgreat-great grandparent. See Fisher Univ.
Native American Rights Fund, Answers Frequently Asked
Questions About Native Peoples, available http://www.narf.
org/pubs/misc/faqs.html (visited Feb. 20, 2015).
Lucy Madison, Warren explains minority listing, talks
grandfather high cheekbones, CBS News (May 2012),
available http://www.cbsnews.com/news/warren-explainsminority-listing-talks-of-grandfathers-high-cheekbones/.
Texas, 645 Supp. 590 (there were 6,715
students 2010 freshman class). How much
additional holistic diversity would have
achieved deciding admit these hypothetical
Elizabeth Warrens based least part their
self-identification with particular race ethnic
group? Should have denied them admission
favor applicants who are 1/16th Native Hawaiian/Other Pacific Islander 1/8th Hispanic? What
critical mass diversity would result?
The Senator Warren controversy illustrates
important point made the American Anthropological Association AAA that racial categories are
generally too crude convey accurate and useful
information about individuals and groups.6 Rather,
the primary effect routine reliance crude racial
categories perpetuate misinformation and
irrational beliefs about others:
Race thus evolved worldview, body prejudgments that distorts our 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. American Anthropological Association, Statement Race,
(May 17, 1998) available http://www.aaanet.org/stmts/
racepp.htm (Americans 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.
Id. The AAA even has recommended that the government phase-out its use racial categories
order achieve the goal eventually eliminating
racial discrimination.7 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 use the term Asian 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 member the Black race
divisive, problematic, and highly sensitive subject,
inextricably woven into the history slavery and
segregation the United States. Like the selfidentified racial categories American Indian,
White, Asian, too ambiguous. 2008,
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.
U.S. District Court addressed this ambiguity, rejecting outright the use race factor damage
calculations. The Court observed:
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 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, 249250 (E.D.N.Y. 2008).
The federal government has been unable
define race racial groups with any precision.
last tried adopt regulations codify human races
and ethnicities 1997, defining them geographically based continent country origin.8 This
approach obviously problematic and fraught with
imprecision. How many generations must person
ancestors have lived, worked, married, and raised
families the United States before his her continent country origin becomes North America
the United States? Who gets the arbiter
person continent country origin?
simply know when see it, and, so, can Office Management and Budget, Revisions the Standards for the Classification Federal Data Race and Ethnicity, (Oct. 30, 1997), http://www.whitehouse.gov/omb/fedreg_
1997standards/.
government action based such crude categorizations ever satisfy the Equal Protection Clause?
The Court own history highlights the inherent
inequality and offensiveness government differentiations the basis race. Plessy Ferguson,
163 U.S. 537 (1896), the Court upheld Homer
Plessy conviction for violating Louisiana Separate
Car Act, which required separation train passenger race. Mr. Plessy acknowledged that one his
great grandparents was from Africa, making him
1/8th Black and 7/8ths White. Id. 541.
addressing Mr. Plessy blood line, the 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. Even the Plessy Court recognized the
arbitrariness racial classifications, finding that
may undoubtedly become question importance
whether, under the laws Louisiana, Mr. Plessy
belongs the white colored race. Id.
Today, relies self-identification determine person race Hispanic/Non-Hispanic
ethnicity.9 While approach has the benefit
avoiding the offensive and intrusive blood line inquiries the Plessy era, nonetheless results
process that arbitrary, imprecise, and inherently
unequal.
Perhaps understandably light this history, makes effort define what means its
use the term Black African American its
admissions policy. Nor for that matter does define
any its racial categories. The 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 selfidentifies Black and the other, like Mr. Plessy,
self-identifies White, should the latter applicant denied the plus factor?
Almost any governmentally approved use racial classifications crude, ambiguous social constructs that rely the arbitrary self-identification hundreds millions individual Americans
sure fail the narrowly tailored component
strict scrutiny. Ultimately, the only way treat the
illegitimate concept race absolutely prohibit U.S. Census Bureau, What Race, http://www.census.gov/
topics/population/race/about.html (visited Feb. 20, 2015) The
Census Bureau collects racial data based selfidentification.
its use basis for government decisions affecting
individuals groups individuals. Conveniently,
such prohibition precisely what the Constitution
already requires.
II. This Case Presents Important and
Recurring Question Regarding the Use
Race College Admissions Which This
Court Must Resolve fundamental question posed this case is:
may universities use crude, self-identified, arbitrary
racial and ethnic categories selecting the students
they admit, may they only use such (generally)
prohibited classifications when all other attempts
achieve diversity fail? other words: are race
conscious college admissions policies first last
resort? the Fifth Circuit opinion demonstrates,
this question will continue the subject much
litigation until resolved conclusively this
Court. The Fifth Circuit distortion the Court
decision Fisher shows that what the law needs
right now clarity, not further refinement and
evolution through lower court decisions that may
may not reach this Court several years time.
Pending federal litigation over the racial admissions policies Harvard and the University North
Carolina further demonstrates why certiorari
warranted now. The Harvard lawsuit demonstrates
how race conscious admissions breed racial animosity, because the result Harvard policy that
excludes otherwise qualified applicants based
their racial background this case, Asians.
This result the same one that Harvard racial
policies achieved far back the 1940s, only
those days Harvard was seeking minimize the
presence otherwise qualified Jewish students
campus. that time, with the influx eastern
European Jewish immigrants the United States,
elite colleges found that admissions based solely
traditional definitions academic excellence would
result classes that were overwhelmingly Jewish.11
Harvard de-emphasis academic merit favor
diversity injured Jewish students the time, just
today policies injure Asian students.
The lawsuit against the University North Carolina demonstrates that colleges and universities are
loathe comply with the Court decision Fisher. UNC explained amicus brief submitted
this Court, UNC has determined that can achieve
complete diversity without using race-conscious
admissions, but prefers not because
would not able pick and choose the right kinds
Gail Sullivan, Harvard University targeted affirmative
action opponents, Nov. 19, 2014, Washington Post, available
http://www.washingtonpost.com/news/morning-mix/wp/2014/11/
19/affirmative-action-opponents-just-targeted-the-big-oneharvard-university/. Jerome Karabel, The Chosen: The Hidden History Admission and Exclusion Harvard, Yale, and Princeton, pp. 77, 86,
Houghton Mifflin Co. (2005). diverse students would most like have.12 unlikely that the lower courts will able
resolve these lawsuits without clear response from
this Court the Fifth Circuit opinion, which casts
substantial doubt what the Court meant Fisher.
Even more importantly, the Harvard and UNC
lawsuits demonstrate that the harms racial animosity and resentment described throughout this
brief will continue unabated until the Court clarifies
the law racial admissions practices. This fact
militates favor granting certiorari and against
waiting several years for other cases make their
way through the courts the law can evolve,
might preferable other areas law.
See Complaint, Students for Fair Admissions University
North Carolina, filed U.S. District Court for the Middle
District North Carolina, Nov. 17, 2014, 78-83, available
http://studentsforfairadmissions.org/wp-content/uploads/
2014/11/SFFA-v.-UNC-Complaint.pdf.
CONCLUSION
Amici respectfully request that the Court grant
the Petition.
Respectfully submitted,
Paul Orfanedes
Chris Fedeli
Counsel Record
JUDICIAL WATCH, INC.
425 Third Street SW, Ste. 800
Washington, 20024
(202) 646-5172
cfedeli@judicialwatch.org
porfanedes@judicialwatch.org
Counsel for Amici
March 12, 2015