The Editors of this website have filed two Briefs Amici Curiae (“Friend of the Court”) in the cases now pending involving Harvard College (No. 20-1199) and the University of North Carolina (No. 21-707). 

         The first, by Professor Richard Sander (link), filed in support of the Petitioner (Students for Fair Representation), summarizes its argument as follows:

       This Court’s grant of certiorari to both the Harvard and University of North Carolina cases may indicate an interest on the Court’s part in broadly reviewing the question of when, and whether, universities should be permitted to use racial preferences in admissions. Amicus has tried to synthesize in this brief some of his conclusions from closely studying and observing the general operation, mechanisms, and effects of racial preferences in American higher education, and to draw several legal inferences from these conclusions.

         The second, filed by Professors Ann M. Killenbeck and Mark R. Killenbeck (link), in support of neither party, describes its argument as follows:

       The Court has consistently held that the permissibility and proper use of race-based preferences in the pursuit of “student body diversity” are matters of educational judgment, not social policy. This is predicated on the assumption that certain specific educational outcomes supposedly associated with diversity are “not theoretical but real.” Grutter v. Bollinger, 539 U.S. 306 (2003). Amici believe, and the Court confirmed in Fisher v. The University of Texas at Austin, 136 S. Ct. 2198 (2016) (Fisher II), that this imposes positive and continuous obligations on any college, university, or professional school that uses such preferences. Specifically, these entities must continuously and rigorously assess whether these benefits and outcomes actually occur and whether the use of preferences is still necessary. Unfortunately, to the best of our knowledge, there is no evidence that suggests that these institutions routinely do so.  Indeed, neither the litigants in these cases, nor the courts below, have fashioned a record or decisions that live up to the obligations imposed by Fisher II. Rather, they focus almost exclusively on the admissions process, which is simply a means toward achieving the necessary end: meaningful, measurable education outcomes.

                   The Court may, or may not, bar the use of group identity preferences. We believe that the failure to live up to the full set of expectations imposed by the Court  provides a possible basis for barring the use of preferences, if the Court is so inclined. Further, regardless of what the Court does, it is quite clear that highly selective colleges, universities, and professional schools will continue to employ preferences in various forms. The Court should accordingly reaffirm that any such policies must be both designed to achieve the benefits outlined in Grutter and Fisher II and be continuously evaluated on that basis.