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Fisher v UT Austin 981 091015

Fisher v UT Austin 981 091015

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No. 14-981 THE
Supreme Court the United States
_________ Writ Certiorari the United States Court Appeals for the Fifth Circuit
Paul Orfanedes
Chris Fedeli
Counsel Record
425 Third Street SW, Ste. 800
Washington, 20024
(202) 646-5172
Counsel for Amici Curiae
Dated: September 10, 2015
Washington 202-747-2400
TABLE CONTENTS .............................................
TABLE AUTHORITIES ......................................
INTERESTS THE AMICI CURIAE .....................1
SUMMARY THE ARGUMENT ............................2
ARGUMENT ...........................................3 Putting People Racial Categories
Crude and Arbitrary Practice That Can Never Narrowly Tailored ..4 and the Federal Government Racial
Identification Standards are Necessarily
Vague and Arbitrary ..9 Application our Confused Racial
Concepts Leads Questionable
Results .17 The Fifth Circuit Decision Proves That
Racial Categorization Must End
CONCLUSION ..........................................................23
Adarand Constructors Pena,
515 U.S. 200 (1995) ........................................
Fisher Univ. Texas,
133 Ct. 2411 (2013).....................................
Fisher Univ. Texas,
758 F.3d 633 (5th Cir. 2014) ...........................
Fisher Univ. Texas,
645 Supp.2d 587 (W.D. Tex. 2009) ........ 10,
McMillan City New York,
253 F.R.D. 247 (E.D.N.Y. 2008) .........................7
Plessy Ferguson,
163 U.S. 537 (1896) ......................................
United States Ortiz,
897 Supp. 199 (E.D. Pa. 1995) .......................8
American Anthropological Association,
Response OMB Directive 15: Race and
Ethnic Standards for Federal Statistics and
Administrative Report ing (Sept. 1997), .....4,
American Anthropological Association,
Statement Race (May 17, 1998), ............5
ApplyTexas, Instructions for Completing Your
ApplyTexas Application. U.S. Freshman Admission Application,
adappc/html/fresh12_help.html .........................10
ApplyTexas, Sample Application,
preview12/frs_1.html ............................................9 Freedom Lac and Abby Ohlheiser, Rachel
Dolezal, ex-NAACP leader: Nothing about being
white describes who am, Washington Post,
(June 16, 2015), http://www.washingtonpost.
com/news/morning-mix/wp/2015/06/16/racheldolezal-i-identify-as-black/ .................................19
Jamelle Bouie, Rachel Dolezal Black Just Because She Says She Is? Maybe, Slate (June
part_of_the_african.html ..............................19,
Lucy Madison, Warren explains minority listing,
talks grandfather high cheekbones, CBS
News, (May 2012),
8301-503544_162- 57427355-503544/warrenexplains-minority-listing-talks-of-grandfathershigh-cheekbones/..................................................18
Native American Rights Fund, Answers Frequently Asked Questions About Native
faqs.html .............................................................17
Office Management and Budget, Revisions the Standards for the Classification Federal
Data Race and Ethnicity, (Oct. 30, 1997),
Office Management and Budget, Standards for
the Classification Federal Data Race and
Ethnicity, (Aug. 28, 1995), https://www. ..12,
Pew Hispanic Center, When Labels Don Fit:
Hispanics and Their Views Identity, (April
when-labels-dont-fit-hispanics-and-their-views-ofidentity/ ..................................................................9
U.S. Census Bureau, What Race, http://www. .................................15
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 37.3 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 the 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 raceconscious 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.
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.
Government policies such the policy enacted the University, which seeks classify applicants crude, inherently ambiguous, and arbitrary racial
and ethnic categories promote diversity can never narrowly tailored further compelling government interest. Attempts categorize individuals
racial and ethnic groups necessarily lead absurd
Accordingly, the Fifth Circuit attempt find
narrowly tailored governmental racial program admission system necessarily must rely
artful abstractions order evade this Court
precedent. The lower court decision does not
satisfy strict scrutiny and should reversed.
This case concerns the use the concepts race
and ethnicity discriminate among individuals
seeking acceptance college, which now returns
the Supreme Court after two visits the Fifth
Circuit. Part the reason this case unresolvable because the concept race defies precise
legal definition. The concept racial groups came
about crude way categorize populations
before later science showed the concept race was
hollow. Because this, attempts use the concept race for legal purposes modern times must
both appear reference biology while simultaneously disavowing it. This balancing act makes the use
race unjustifiable and certainly unable satisfy
constitutional strict scrutiny without the heavy
application fuzzy thinking the Fifth Circuit employs. Putting People Racial Categories
Crude and Arbitrary Practice That can
Never Narrowly Tailored
Our concept human races originated prior
1700 European folk knowledge, gradually evolving into the pseudo-scientific racial theories the
18th century:
Rather than developing scientific concept,
the current notion race the United
States grew out European folk taxonomy classification system sometime after Columbus sailed the Americas was this
intellectual climate that the perceived purity
and immutability races originated. For
example, the 18th century, Carolus Linneaus, the father taxonomy and European, described American Indians not only
possessing reddish skin, but also choleric
Africans were described having black skin,
flat noses and being phlegmatic, relaxed, indolent the American Anthropological Association AAA explains, this day racial categories not
American Anthropological Association, Response OMB
Directive 15: Race and Ethnic Standards for Federal Statistics
and Administrative Reporting (Sept. 1997), available
bear scrutiny from the standpoint the biological
Because racial and ethnic categories are unscientific, inherently ambiguous, and arbitrary social
constructs, their use college admissions can never narrowly tailored for purposes strict scrutiny. the AAA has explained, racial categories are
generally too crude convey accurate and useful
information about individuals and groups.4 Rather, 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
Id. Genetic data show that, matter how racial groups are
defined, two people from the same racial group are about
different from each other two people from any two different
racial groups.
American Anthropological Association, Statement Race,
(May 17, 1998) available
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.
The AAA has even recommended that the government phase-out its use racial categories order
achieve the goal eventually eliminating racial
The Court own history highlights the inherent
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 passengers race. Mr.
Plessy acknowledged that one his great grandparents was from Africa, making him 1/8th Black and
7/8ths White. Plessy, 163 U.S. 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.
American Anthropological Association, Response OMB
Directive 15, (Sept. 1997) available
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.
Plessy, 163 U.S. 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.
Defining who member the Black race
divisive, problematic, and highly sensitive subject,
inextricably woven into the history slavery and
segregation the United States. 2008, 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 ethnic category Hispanic and Latino
fares better. least one court has found that the
term Hispanic itself nothing more than selfidentification:
[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 [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 about
themselves, and the neighborhood where they
live would influence whether the children
would identify themselves Hispanic. person surname not definite indicator. Some
last names persons who may consider
themselves Hispanic may not may not
appear Spanish derivation. Conversely, woman admittedly non-Hispanic descent may take her husband Hispanic surname upon marriage. Suffice say that
whether person Hispanic the final
analysis depends whether that person considers himself herself Hispanic.
United States Ortiz, 897 Supp. 199, 203 (E.D.
Pa. 1995).
Moreover, there little consistency how people
self-apply the Hispanic Latino labels. According April 2012 study the Pew Hispanic Center,
only twenty-four percent (24%) percent Hispanic
adults self-identify the terms Hispanic Lati-
no. The study found that 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.
The study concluded that this system ethnic and
racial labeling does not fit easily with Latino own
sense identity. and the Federal Government Racial
Identification Standards are Necessarily
Vague and Arbitrary cursory review shows that system racial
classification 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 asked answer yes this ethnicity
question, and other ethnic choices are offered.
Applicants are then directed select the racial
category categories with which you most closely Pew Hispanic Center, When Labels Don Fit: Hispanics and
Their Views Identity, (April 2012), available
Id. ApplyTexas, Sample Application, available https://www. (visited Sept. 2015).
identify, choosing one more American Indian Alaska Native, Asian, Black African American,
Native Hawaiian Other Pacific Islander, White.
The accompanying instructions provide additional
guidance, but merely instruct the applicant to:
[p]rovide 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
The applicant selfscholarship decisions.
selected race then referenced the front his her admissions application file, where reviewers
aware throughout the evaluation. Fisher
Univ. Texas, 645 Supp. 587, 597 (W.D. Tex.
2009). reliance five broad racial categories and
single ethnic category achieve holistic diversity not narrowly tailored. Students must self-identify
their race and ethnicity, 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 fullblooded member his her self-identified race
ethnic group, whether 1/2, 1/4, 1/8, 1/16, even
1/32 heritage sufficient granted denied the
plus factor.
See ApplyTexas, Instructions for Completing Your ApplyTexas Application, U.S. Freshman Admission Application,
(visited Sept. 2015).
Question from the ApplyTexas application
largely mirrors the 1997 racial standards issued
the U.S. Office Management and Budget OMB ).11 Unlike the University, the OMB standards provide cursory definitions the racial categories that the standards employ.12 While the OMB
standards are not models clarity, they attempt define races geographically, based continent
country origin.13 This approach problematic
and fraught with imprecision. For instance,
unclear how many generations person ancestors
must have lived, worked, married, and raised families the United States before his her continent country origin becomes North America the
United States. Nor does the OMB specify whether
individuals may decide for themselves how many
generations are needed before their country
continent origin changes.
Furthermore, the federal government has recognized that self-identification method racial identity (which appears rely on) only works when
the categories are acceptable and generally understood both members and nonmembers the
groups which they apply, while simultaneously
acknowledging that many people feel that limited
choices between black and white not accurately
See Office Management and Budget, Revisions the
Standards for the Classification Federal Data Race and
Ethnicity, (Oct. 30, 1997),
represent who they are.14 The OMB prefers that
self-identification should facilitated the greatest extent possible, while recognizing that this may
necessitate the use additional categories beyond
black, white, and latino, because [r]esearch shows
that ethnic groups evolve and may modify their
preferred ethnic group names; individuals may
represent their affiliation with groups differently
depending the situation and may alter their
perceived ethnic membership over time. Id.
research shows people self-identify black, latino, Native American sometimes but not others depending the situation, then one situation racially ambiguous people might pick identify with
minority group when they are applying the
University Texas.
Conversely, the OMB reports that some federal
agencies prefer use visual observation physical features such skin color determine whether
someone belongs racial ethnic category not,
since discrimination based the perception
individual race Hispanic origin. However,
unlike self-identification, the other-identification
method may lead the opposite problem underSee Office Management and Budget, Standards for the
Classification Federal Data Race and Ethnicity, (Aug. 28,
1995) (broad self-identification categories are disfavored the
arguments some persons, particularly those mixed
heritage, that they cannot accurately identify their race and
ethnicity they prefer Federal data systems using the
current categories. They say the government should not limit
their choice identification. available https://www.white
inclusiveness. Namely, someone with heritage
one race but features resembling those another
race might denied inclusion that race for official government purposes, even that person might
self-identify different. Agencies that prefer visual
observation for classifications race also prefer the
simple categories black, white, and latino and
oppose the use more complex gradients, because
finer-tuned categories not stand out enough
proposed changes [to Census racial and ethnic categories] include the suggested multiracial category well identification national origins and ethnicities (for example,
Arab Cape Verdean These agencies say
that categories are more detailed and include nationality groups, there multiracial category (and especially the multiple races have identified), would
virtually impossible give instructions for
how classify visual observation.16
Finally, the OMB standards were developed
promote uniformity and comparability for data
race and ethnicity and provide consistent data race and ethnicity throughout the Federal Government. The OMB standards disavow their use
for anything other than statistical compilation:
Id. Office Management and Budget, Revisions the Standards for the Classification Federal Data Race and Ethnicity, (Oct. 30, 1997),
Foremost consideration should given data aggregation race and ethnicity that are
useful for statistical analysis and program
administration and assessment, bearing
mind that the standards are not intended used establish eligibility for participation any federal program.18
Thus, even were relying OMB, those racial
standards were never intended used dispense benefits.
All this raises the question how the process racial categorization should work order
satisfy constitutional strict scrutiny. Should determining someone race ethnicity matter
looking them, asking them? the former, the
University Texas more guaranteed getting
class diverse people who look like they may have
suffered from discrimination based their different
shades skin color. However, doubtful that
variance complexion really the kind diversity
the University aims achieve. the other hand
self-identification the method employed, the risk unfairly advantaging people who appear they
have never been discriminated against based race ethnicity (and may not have been) much higher, the perhaps truer aims diverse perspectives are
With its self-reporting method racial classification, appears rely primarily self18
identification determine person race Hispanic/Non-Hispanic ethnicity, just the Census
Bureau does.19 While approach has the benefit avoiding the offensive and intrusive blood line
inquiries the Plessy era (or similarly dehumanizing visual inspection), self-identification nonetheless
results process that arbitrary, imprecise, and
inherently unequal. either case, the University Texas (and the
federal government racial and ethnic categories
are not narrowly drawn. makes little effort
define what means its use the Black
African American category. 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?
Similarly, 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, U.S. Census Bureau, What Race,
topics/population/race/about.html (visited Sept. 2015) The
Census Bureau collects racial data... based selfidentification.
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. only uses one broad ethnic category Hispanic Latino for awarding plus factors. This
category fares better. Obviously, this single
ethnic category does not begin recognize encompass the tremendous diversity cultures, languages, religions, and heritages the human race.
Also undefined whether the terms Hispanic and
Latino refer persons full partial Spanish
ancestry only, also persons other European
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.
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
its use basis for government decisions affecting
individuals groups individuals. Conveniently,
such prohibition precisely what the Constitution
already requires. Application our Confused Racial
Concepts Leads Questionable Results
The result the misguided history race and
our modern struggle with trying define usefully confusion over what means and when should
apply. Take the example the Native American
racial category, which uses award admissions plus factor. Discussing what makes someone
American Indian Alaska Native, the Native
Americans Rights Fund acknowledges that [t]here
exists universally accepted rule for establishing
person identity Indian. This definitional
problem was highlighted the controversy over
Senator Elizabeth Warren during her 2012 campaign for Senate. Based family lore and high
cheek bones, Ms. Warren claimed, perhaps quite
sincerely, that she was 1/32nd Cherokee and therefore Native American and minority.21 response, many people predictably expressed doubt
Native American Rights Fund, Answers Frequently
Asked Questions About Native Peoples, available (visited Sept. 2015). Lucy Madison, Warren explains minority listing, talks
grandfather high cheekbones, CBS News (May 2012),
that classifying Senator Warren Native American based system racial self-identification
made sense, much less served legitimate purpose.
Under existing affirmative action 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 the family
lore cheekbones (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
great-great-great grandparent. See Fisher Univ. Texas, 645 Supp. 590 (there were 6,715
students 2010 freshman class). How much
additional holistic diversity would college achieve deciding admit these hypothetical Elizabeth
Warrens based least part their selfidentification with particular race ethnic group?
Should have denied such individuals admission favor applicants who are 1/16th Native Hawaiian/Other Pacific Islander 1/8th Hispanic? What
critical mass diversity would result?
Similarly, consider the case Rachel Dolezal, the
NAACP Spokane Chapter president who selfidentified Black despite apparently having only
White heritage. membership racial class matter self-identification some government
literature indicates, then there reason why
Rachel Dolezal should not awarded the racial plus
factor.22 Most thoughtful observers agree this not easy question, and again raises the issue
whether one race matter self-identification other-identification.
When discussing Rachel
Dolezal, appears that race least partly
matter self-identification: one hand, black statement identity. describes certain culture and certain
history, tied the lives and experiences enslaved Africans and their descendants.
fluid culture, with room for huge variety
people, from whites, blacks, people
Latin American and Caribbean descent....
But also partly matter how others identify
[I]f were born with lighter skin and more
European features, might able escape
the stigma blackness. would still have the
cultural connection, but wouldn occupy the
same place the hierarchy. What key
that you can choose your position the hiJ. Freedom Lac and Abby Ohlheiser, Rachel Dolezal, exNAACP leader: Nothing about being white describes who
am, Washington Post (June 16, 2015), available
16/rachel-dolezal-i-identify-as-black/. Jamelle Bouie, Rachel Dolezal Black Just Because She
Says She Is? Maybe, Slate (June 2015), available
erarchy. The political designation race
function power or, put differently, you
are whatever the dominant group says you
Unfortunately, this standard both imprecise and
arbitrary. Answering the question whether Rachel Dolezal would qualify black under affirmative action policies (and not, why not) further
exposes the confusion that reliance selfidentification can produce. genuine racial selfidentification sufficient, merely stand-in for
some kind honor system where every individual
applies the Plessy standard themselves?
answer either way begs the ultimate question: why
are governments continuing bless policies which
perpetuate the official recognition racial and
ethnic categories? The Fifth Circuit Decision Proves That
Racial Categorization Must End
Because race used without any precision
law, and because has made effort find any
precision, the Fifth Circuit forced employ deliberately woolly language uphold flawed
program for the second time. admissions
program fails strict scrutiny because relies the
crude, inherently ambiguous, and arbitrary racial
and ethnic categories pursuit undefined
critical mass diversity. This Court opinion
Fisher established that even allegedly benign racial
discrimination 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.
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.
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. 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 satisfying the constitution target
which was never defined, largely undefinable, and
therefore cannot narrowly tailored further
compelling governmental interest. Fisher Univ.
Texas, 758 F.3d 633, 654 (5th Cir. 2014) Remand
Opinion Id., Judge Garza dissent 661. unknowable critical mass standard 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 Appellant has
demonstrated, they are too vague ever narrowly tailored. See Petition for Writ Certiorari, No.
14-981, filed Feb. 10, 2015, pp. 13, 18, 22-27.
Having failed twice justify the use race
employing equally vague standards like critical
mass and holistic diversity, the Supreme Court
should now reverse the Fifth Circuit decision
uncertain terms.
For all the foregoing reasons, amici respectfully
request that the Court reverse the Fifth Circuit
Respectfully submitted,
Paul Orfanedes
Chris Fedeli
Counsel Record
425 Third Street SW, Ste. 800
Washington, 20024
(202) 646-5172
Counsel for Amici
September 10, 2015