Amicus Briefs Against Racial Preferences

In March 2021, CFER collaborated with the American Civil Rights Project (ACRP) in an amicus brief submitted to the U.S. Supreme Court, in support of the certiorari petition by Students for Fair Admissions (SFFA) against racial balancing in Harvard’s undergraduate admissions. We urge the high court to correct a past mistake and address race-conscious admissions. In December 2021, the ACR Project represented CFER in a similar amicus brief in support of SFFA’s lawsuit against University of North Carolina. In May 2022, we filed an updated amicus brief urging the Supreme Court to overturn Grutter in the upcoming UNC and Harvard cases.

In the most recent brief, CFER asks the Supreme Court to overrule Grutter v. Bollinger (2003)and rule that both schools’ race-based policies constitute illegal racial discrimination banned by the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

One of the many flaws in the Court’s reasoning in Grutter v. Bollinger was its unwillingness to strictly scrutinize the University of Michigan Law School’s race-preferential admissions policy. Instead, it purported to “defer” to the law school—an admitted discriminator—about whether the need for discrimination was sufficiently compelling. “The well-established doctrine of strict scrutiny requires the Court to demand that discriminators demonstrate that they have a compelling need to discriminate. Deference to the discriminator makes no sense,” said law professor Gail Heriot, the Executive Vice President of CFER. “If the Court was going to defer to anyone, it should have been the American people, who have made it clear over and over again that they do not support race-preferential admissions.”

Read our Harvard case brief here (press release here).

Read our UNC case brief here (press release here).

Read our updated Harvard/UNC brief here (press release here).

CFER’s briefs further stress that, like every credible poll taken over decades, Americans’ voting on ballot initiatives has broken overwhelmingly against race-based admissions. Almost every statewide vote has rejected them, including (among others) Washingtonians defeat of Prop. 1000 in 2018 and Californians defeat of Prop. 16 in 2020.