CFER Foundation


Published March 31, 2021

CFER Submits an Amicus Brief in Support of SFFA’s Certiorari Petition to the U.S. Supreme Court in the Harvard Discrimination Case

Racial Preferences Have No Place in Our Higher Education System




For Immediate Release

March 31, 2021

SAN DIEGO, CA -- March 31, 2021- Today, Californians for Equal Rights Foundation (CFER), with legal representation from the American Civil Rights Project, submitted an amicus brief in support of Students for Fair Admissions' (SFFA's) petition to the United States Supreme Court to hear the Harvard discrimination case.

In the brief, we argue that America has maintained a long-standing, broad-based, national consensus against race-based admissions for decades. This settled public consensus, grounded in principles underlying Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, calls for the Supreme Court to grant certiorari to SFFA and reconsider its earlier decisions on race-preferential college admissions.

"For too long, the Supreme Court has stood by and allowed colleges and universities to engage in rank discrimination in admissions based on race," said Gail Heriot, a professor of law at the University of San Diego and CFER's Executive Vice President.  "At Harvard, Asian Americans have been the primary victims. The Court should take the opportunity presented by SFFA v. Harvard to correct the problem."

"It's rare for the Court to have this clear an opportunity to correct a past mistake," added Dan Morenoff, Executive Director of the American Civil Rights Project.  "It's taken 18 years, during which 7 of the 9 Justices have changed over, for facts to arise allowing the Court this chance.  They should absolutely take it."

For many decades, Harvard has engaged in unjustifiable racial discrimination in its admissions process. Over at least the last decade, Harvard's "holistic" approach has functioned to systematically degrade Asian-American applicants. Harvard and other selective schools have applied racial stereotypes and higher standards to Asian American applicants in order to support a *de facto *quota regime. In this critical context, our amicus brief outlines four key messages:

1. The Rule of Law demands abandonment of the Court's 18-year old "deference" to colleges and universities in determining whether there is a "compelling" need requiring them to engage in race discrimination.  Instead, the uniform application of constitutional principles requires courts to scrutinize strictly race discrimination by colleges and universities the same way they do race discrimination by other governmental entities or federal funding recipients.

2. Despite the apparent perception of the Court in 2003, consistent polling data and electoral results since at least the early 1990s demonstrate a broad, stable, societal consensus against race-based admissions policies.

3. Modern ballot initiative history in California (Proposition 16, defeated in 2020) and Washington State (Referendum 88, defeated in 2019) demonstrate this strong, national, bipartisan consensus opposed to race-based admissions continues (and may be strengthening), even in America's most diverse, progressive states.

4. Acknowledging this broad-based, stable, national consensus would be consistent with the job of the judiciary, because a policy end the public has consistently rejected for decades cannot be sufficiently "compelling" to override the Constitutional requirement of Equal Protection.

In November 2020, over 9.6 million California voters rejected the racial-preference ballot measure Proposition 16. This resounding defense of the equal protection principle in one of America's most politically progressive and racially diverse states proves America's long-standing and broad-based antipathy to race-based public programs. CFER sincerely hopes that the Supreme Court will adequately consider our amicus brief and grant certiorari in SFFA v. Harvard.


Wenyuan Wu

(786) 393-8028

About Californians for Equal Rights Foundation (CFER):

We are a non-partisan and non-profit organization established following the defeat of Proposition 16 in 2020, with a mission to defend and raise public awareness on the cause of equal rights through public education, civic engagement and community outreach. In 1996, California became the first U.S. state to amend its constitution by passing Proposition 209 to ban racial discrimination and preferences. Prop. 209 requires that “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” CFER is dedicated to educating the public on this important constitutional principle of equal treatment.


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