throbber
No. 21-707
`In The Supreme Court of the United States
`————
`STUDENTS FOR FAIR ADMISSIONS, INC.,
`Petitioner,
`
`v.
`UNIVERSITY OF NORTH CAROLINA, et al.,
`Respondents.
`
`JACK HOLTZMAN
`SARAH LAWS
`NORTH CAROLINA
`JUSTICE CENTER
`224 South Dawson Street
`Raleigh, NC 27601
`
`————
`On Petition for a Writ of Certiorari
`Before Judgment to the United
`States Court of Appeals
`for the Fourth Circuit
`————
`BRIEF IN OPPOSITION TO PETITIONER’S
`WRIT OF CERTIORARI BEFORE JUDGMENT
`————
`DAMON HEWITT
`JON GREENBAUM
`DAVID HINOJOSA
`Counsel of Record
`GENEVIEVE BONADIES TORRES
`LAWYERS’ COMMITTEE FOR
`CIVIL RIGHTS UNDER LAW
`1500 K Street, NW, Suite 900
`Washington, DC 20005
`(202) 662-8600
`dhinojosa@
`lawyerscommittee.org
`REED N. COLFAX
`SOOHYUN CHOI
`RELMAN COLFAX PLLC
`1225 19th Street NW, Suite 600
`Washington, DC 20036
`Counsel for Respondents Cecilia Polanco, et al.
`
`December 20, 2021
`
`WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
`
`

`

`
`
`
` i
`
`
`
`QUESTIONS PRESENTED
`
`1. Whether this Court should grant the
`extraordinary relief requested and bypass
`review in the Fourth Circuit before judgment
`where the constitutionality of race-conscious
`holistic admissions practices was affirmed by
`this Court as recently as 2016 and there is no
`immediate need to revisit this issue or the
`fact-intensive issue of race-neutral
`alternatives raised by Petitioner?
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`
`ii
`
`
`
`PARTIES TO THE PROCEEDING
`
`Petitioner is Students for Fair Admissions
`
`(SFFA). Petitioner was the plaintiff below.
`
`Respondents are the University of North
`Carolina; the University of North Carolina at Chapel
`Hill; the University of North Carolina Board of
`Governors; John C. Fennebresque; W. Louis Bissette,
`Jr.; Joan Templeton Perry; Roger Aiken; Hannah D.
`Gage; Ann B. Goodnight; H. Frank Frainger; Peter D.
`Hans; Thomas J. Harrelson; Henry W. Hinton; James
`L. Holmes, Jr.; Rodney E. Hood; W. Marty Kotis, III;
`G. Leroy Lail; Scott Lampe; Steven B. Long; Joan G.
`Macneill; Mary Ann Maxwell; W. Edwin McMahan;
`W.G. Champion Mitchell; Hari H. Math; Anna
`Spangler Nelson; Alex Parker; R. Doyle Parrish;
`Therence O. Pickett; David M. Powers; Robert S.
`Rippy; Harry Leo Smith, Jr.; J. Craig Souza; George
`A. Sywassink; Richard F. Taylor; Raiford Trask, III;
`Phillip D. Walker; Laura I. Wiley; Thomas W. Ross;
`Carol L. Folt; James W. Dean, Jr.; and Stephen M.
`Farmer. These parties were defendants below.
`
`Respondents also are Cecilia Polanco; Luis
`Acosta; Star Wingate-Bey; Laura Ornelas; Kevin
`Mills, on behalf of Q.M.; Angie Mills, on behalf of
`Q.M.; Christopher Jackson, on behalf of C.J.; Julia
`Nieves, on behalf of I.N.; Tamika Williams, on behalf
`of A.J.; Ramonia Jones, on behalf of R.J.; and Andrew
`
`
`
`

`

`
`
`
`iii
`
`
`Brennen.1 These parties were defendant-intervenors
`below.
`
`
`
`1 SFFA’s petition for writ of certiorari before judgment misspells
`the names of Cecilia Polanco, Andrew Brennen, and Ramonia
`Jones and omits the initials of the minor children represented by
`Christopher Jackson and Ramonia Jones. See Pet.ii. Those errors
`are corrected here.
`
`
`
`

`

`
`
`
`iv
`
`
`
`CORPORATE DISCLOSURE STATEMENT
`
`Respondent Cecilia Polanco, et al., are a
`
`multiracial, multiethnic group of students and now
`alumni at the University of North Carolina at
`Chapel Hill, none of whom has a parent corporation
`and there is no publicly held corporation that owns
`10% or more of any of their stock.
`
`
`
`
`
`
`
`
`
`

`

`
`
`
` v
`
`
`
`
`
`TABLE OF CONTENTS
`QUESTIONS PRESENTED .................................... i
`PARTIES TO THE PROCEEDING ....................... ii
`CORPORATE DISCLOSURE STATEMENT ..... iv
`TABLE OF AUTHORITIES.................................. vii
`INTRODUCTION ...................................................... 1
`STATEMENT ............................................................. 4
`A. Procedural Posture ................................. 4
`B. UNC’s Holistic Admissions .................... 6
`C. UNC’s Pursuit of the Educational
`Benefits of Diversity ............................... 8
`D. Race-Neutral Alternatives ................... 11
`ARGUMENT ............................................................ 14
`I. This Litigation Presents No
`Emergency Warranting the
`Extraordinary Remedy of Certiorari
`Before Judgment ................................... 14
`A. SFFA Fails to Demonstrate the Kind
`of Urgency Demanded Under Rule
`11 ..................................................... 14
`B. The Question of Whether to
`Overturn Grutter Does Not Warrant
`Rule 11’s Extraordinary Relief and
`Instead Countenances in Favor of
`Adhering to Ordinary Procedure ... 21
`
`
`
`

`

`
`
`
`vi
`
`
`
`i. Grutter Is Correct and
`Consistent with this
`Court’s Equal
`Protection
`Jurisprudence ............ 23
`ii. Grutter Is Critical for
`Our National Progress,
`and There Is No
`Confusion or Split
`Across Circuits ........... 26
`iii. Substantial Reliance
`Interests Strongly
`Support Adhering to
`Grutter and
`Definitively Counsel
`Against a Rushed
`Review Process .......... 32
`C. Rule 10 Is Inapplicable and Further
`Highlights the Appropriateness of
`Adhering to the Normal Appellate
`Procedure ........................................ 37
`D. The District Court’s Fact-Specific
`Determination that No Workable,
`Race-Neutral Alternatives Are
`Available to UNC Does Not Warrant
`Immediate Review by this Court
` ......................................................... 38
`CONCLUSION ......................................................... 44
`
`
`
`
`
`

`

`
`
`
`vii
`
`
`
`TABLE OF AUTHORITIES
`Cases Pages
`
`Aaron v. Cooper, 357 U.S. 566 (1958) ....................... 16
`
`Adarand Constructors, Inc. v. Peña, 515 U.S. 200
`(1995) ......................................................... 25, 38
`
`All Am. Check Cashing v. CFPB, 140 S. Ct. 646
`(2019) ............................................................... 20
`
`Anderson v. City of Bessemer City, 470 U.S. 564
`(1985) ............................................................... 44
`
`Brown v. Board of Education, 347 U.S. 483 (1954)
` ................................................................... 25, 26
`
`City & Cnty. of S.F. v. Sheehan, 135 S. Ct. 1765
`(2015) .............................................................. 26
`
`Coleman v. PACCAR, Inc., 424 U.S. 1301 (1976)
`(Rehnquist, J., in chambers) ......................... 14
`
`Fisher v. Univ. of Tex. at Austin, 758 F.3d 633 (5th
`Cir. 2014) ........................................................ 26
`
`
`Fisher v. Univ. of Tex. at Austin, 570 U.S. 297, 310
`(2013) (Fisher I) ............................................. 17
`
`Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198
`(2016) (Fisher II) ..................................... passim
`
`Gamble v. United States, 139 S. Ct. 1960 (2019) ..... 22
`
`Gomillion v. Lightfoot, 364 U.S. 339 (1960) ............. 39
`
`
`
`

`

`
`
`
`viii
`
`
`Grable & Sons Metal Prod., Inc. v. Darue Eng'g &
`Mfg., 545 U.S. 308 (2005) ............................... 20
`
`Gratz v. Bollinger, 277 F.3d 803 (Mem), 804 (6th Cir.
`2001), opinion after hearing en banc ordered,
`309 F.3d 329 (6th Cir. 2001) .......................... 19
`
`Gratz v. Bollinger, 539 U.S. 244 (2003) .......... 2, 16, 17
`
`Grutter v. Bollinger, 539 U.S. 306 (2003) ......... passim
`
`Illinois v. Gates, 462 U.S. 213 (1983) ........... 15, 16, 19
`
`June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103
`(2020) .............................................................. 22
`
`Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990)
` ......................................................................... 15
`
`Mapp v. Ohio, 367 U.S. 643 (1961) ........................... 16
`
`Maslenjak v. United States, 137 S. Ct. 1918 (2017)
` ................................................................... 36, 37
`
`Mikulski v. Centerior Energy Corp., 544 U.S. 992
`(2005) ............................................................... 20
`
`Mount Soledad Mem’l Ass’n v. Trunk, 573 U.S. 954
`(2014) ............................................................... 23
`
`Ramos v. Louisiana, 140 S. Ct. 1390 (2020)
` ....................................................... 21, 22, 26, 32
`
`Randall v. Sorrell, 548 U.S. 230 (2006) .............. 22, 30
`
`Regents of Univ. of Cal. v. Bakke, 438 U.S. 265
`(1978) ......................................................... 16, 33
`
`
`
`

`

`
`
`
`ix
`
`
`Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020)...... 20
`
`Smith v. Univ. of Wash., 392 F.3d 367 (9th Cir. 2004)
` ......................................................................... 26
`
`Students for Fair Admissions, Inc. v. President and
`Fellows of Harvard College, No. 1:14-cv-14176,
`2014 WL 6241935 (D. Mass. Nov. 17, 2014)
` ......................................................................... 18
`
`
`Students for Fair Admissions, Inc. v. President and
`Fellows of Harvard College, 397 F. Supp. 3d
`126 (D. Mass. 2019) ........................................ 27
`
`
`Students for Fair Admissions, Inc. v. President and
`Fellows of Harvard College, 980 F.3d 157 (1st
`Cir. 2020) .................................................. 26, 27
`
`
`Students for Fair Admissions, Inc. v. President and
`Fellows of Harvard College, 980 F.3d 157 (1st
`Cir. 2020), petition for cert. filed, No. 20-1199
`(U.S. Feb. 25, 2021) .................................. 17, 18
`
`Students for Fair Admissions, Inc., v. Univ. of Tex. at
`Austin, No. 1:20-CV-763-RP, 2021 WL
`3145667 (W.D. Tex. July 26, 2021) ................ 30
`
`United States v. Clinton, 524 U.S. 912 (1998) .......... 16
`
`United States v. Mendoza, 464 U.S. 154 (1984) ....... 39
`
`Vasquez v. Hillery, 474 U.S. 254 (1986) ................... 22
`
`Yee v. City of Escondido, 503 U.S. 519 (1992) .... 15, 19
`
`
`
`
`
`

`

`
`
`
` x
`
`
`Rules Pages
`
`
`
`S. Ct. R. 11 ............................................................. 1, 39
`
`S. Ct. R. 10 ..................................................... 37, 38, 39
`
`Other Authorities Pages
`
`Brief for Brown University, et al., as Amici Curiae
`Supporting Respondents, Fisher v. Univ. of
`Tex. at Austin, 136 S. Ct. 2198 (2016) (No. 14-
`981) .................................................................. 31
`
`Brief for Fortune-100 and Other Leading American
`Businesses as Amici Curiae Supporting
`Respondents, Fisher v. Univ. of Tex. at Austin,
`136 S. Ct. 2198 (2016) (No. 14-981) ............... 29
`
`Brief for Lt. Gen. Julius W. Becton, Jr., et al., as
`Amici Curiae Supporting Respondents, Fisher
`v. Univ. of Tex. at Austin, 136 S. Ct. 2198
`(2016) (No. 14-981) ......................................... 29
`
`Brief for the United States as Amicus Curiae
`Supporting Respondents, Students for Fair
`Admissions, Inc. v. President and Fellows of
`Harvard College, 980 F.3d 157 (1st Cir. 2020),
`petition for cert. filed (U.S. Feb. 25, 2021) (No.
`20-1199) ........................................................... 35
`
`Brief in Conditional Opp’n, Gratz v. Bollinger, 539
`U.S. 244 (No. 02-516) ...................................... 20
`
`
`
`

`

`
`
`
`xi
`
`
`Cong. Globe, 39th Cong., 1st Sess. 1287 (1866) ....... 25
`
`Connor Maxwell & Sara Garcia, 5 Reasons to
`Support Affirmative Action in College
`Admissions, Center for American Progress
`(October 1, 2019), https://tinyurl.com/Maxwell-
`Garcia .............................................................. 30
`
`Docket entries for Fisher II,
`https://tinyurl.com/96e5amvb (last visited
`November 19, 2021) ........................................ 28
`
`Eboni Nelson, The Case for Race-Conscious
`Affirmative Action, JSTOR Daily (Apr. 3,
`2019), https://tinyurl.com/Eboni-Nelson ........ 33
`
`James Wm. Moore et al., Moore’s Federal Practice –
`Civil § 511.02 (1997) ................................. 14, 37
`
`Linda Darling-Hammond, Inequality in Teaching
`and Schooling: How Opportunity Is Rationed
`to Students of Color in America, in The Right
`Thing to Do, The Smart Thing to Do:
`Enhancing Diversity in the Health Professions
`208-09 (2001) ........................................... 33, 34
`
`Pet. for Writ of Cert., Gratz v. Bollinger, 539 U.S.
`244 (No. 02-516) .............................................. 19
`
`Raj Chetty et al., Race and Economic Opportunity in
`the United States: An Intergenerational
`Perspective, Q. J. of Econ. 731-733 (2019) ..... 34
`
`Robert H. Jackson, Decisional Law and Stare
`Decisis, 30 A. B. A. J. 334 (1944) ................... 21
`
`
`
`

`

`
`
`
`xii
`
`
`Stephen M. Shapiro et al., Supreme Court Practice
`(10th ed. 2013) .................................... 14, 15, 26
`
`Stephen Vladeck, The Solicitor General and the
`Shadow Docket, 133 Harv. L. Rev. 123 (2019)
` ........................................................................... 1
`
`Tiffany Jones & Andrew Nichols, Hard Truths: Why
`Only Race-Conscious Policies Can Fix Racism
`In Higher Education, The Education Trust
`(2020), https://files.eric.ed.gov/fulltext/
`ED603265.pdf ................................................. 30
`
`Travis Riddle & Stacey Sinclair, Racial disparities in
`school-based disciplinary actions are
`associated with county-level rates of racial
`bias 8255 (Jennifer A. Richeson, ed. 2019) ... 34
`
`U.S. Dep’t of Educ. Off. for Civil Rights, Data
`Snapshot: College and Career Readiness, Civil
`Rights Data Collection (2014),
`https://tinyurl.com/bdz8he27.......................... 34
`
`
`
`

`

`
`
`
` 1
`
`
`
`
`
`INTRODUCTION
`
`(SFFA)
`for Fair Admissions’
`Students
`(Petitioner) request for this Court to review the
`decision below before judgment in the Court of
`Appeals for the Fourth Circuit does not satisfy the
`demands for extraordinary relief under Supreme
`Court Rule 11. SFFA’s petition is clouded with a series
`of arguments (i.e., “Grutter is grievously wrong”
`(Pet.14)) that go to the merits of the case but it fails to
`demonstrate how this case is of “such imperative
`public importance as to justify deviation from normal
`appellate practice” and
`“require[s]
`immediate
`determination in this Court.” S. Ct. R. 11. The “drastic
`and extraordinary remedies” available under Rule 11
`“should be used sparingly: ‘only where appeal is a
`clearly inadequate remedy.’” Stephen Vladeck, The
`Solicitor General and the Shadow Docket, 133 Harv.
`L. Rev. 123, 130 (2019). Because relief under Rule 11
`is rarely granted and SFFA’s petition fails to
`substantiate
`the need
`for
`intervention before
`judgment, Respondent-Students—a multiracial,
`multiethnic group of talented, ambitious students and
`now alumni, who intervened as defendants in the
`district court—urge this Court to deny the petition.
`Indeed, the interests of stare decisis on the
`constitutionality of race-conscious admissions weigh
`in favor of adhering to ordinary procedures. For over
`forty years, this Court has recognized the unique
`missions of universities as the training grounds for
`
`
`
`
`
`

`

`
`
`
`
`future leaders and has recognized that universities
`may pursue the educational benefits of diversity,
`including racial diversity, through race-conscious
`means that satisfy strict scrutiny. As late as 2016, this
`Court, in Fisher v. University of Texas at Austin,
`reviewed and affirmed the constitutionality of holistic
`admissions where race is only one of several other
`factors considered through an individualized process
`after remanding the case to the Fifth Circuit for
`further consideration. 136 S. Ct. 2198, 2207 (2016)
`(Fisher II). Here, too, the federal district court applied
`this Court’s strict scrutiny analysis to the University
`of North Carolina’s
`(UNC) holistic admissions
`program. After an eight-day trial that consisted of
`extensive fact and expert witness testimony and
`evidence from UNC and Respondent-Students—but
`only two expert witnesses called by SFFA—the court
`issued a 155-page opinion upholding UNC’s race-
`conscious admissions. SFFA cites no reason why
`Grutter v. Bollinger, 539 U.S. 306 (2003) must be
`considered immediately, especially after this case has
`proceeded for over seven years.
`This case is inapposite to the rare case in which
`the Court accepts certiorari review before judgment.
`SFFA avers that because this Court granted certiorari
`before judgment in Gratz v. Bollinger, 539 U.S. 244
`(2003) to consider alongside Grutter, the Court should
`do the same here if the Court decides to take up
`SFFA’s
`challenge
`to Harvard’s
`race-conscious
`
` 2
`
`
`
`
`
`
`
`

`

`
`
`
`
`admissions plan. But the Grutter/Gratz cases are
`clearly distinguishable. Those cases involved similar
`claims against programs at the same university
`(Michigan) with similar histories and similar
`admissions priorities; and the Gratz respondents did
`not oppose certiorari if this Court accepted review in
`Grutter. Here, UNC and Harvard involve different
`universities with different histories, missions, goals,
`admissions policies and procedures, and periodic
`review processes, among several other variances. In
`fact, SFFA brought several different claims against
`Harvard, including (unsuccessful) claims alleging
`that Harvard discriminated against Asian American
`students vis-à-vis white students, whereas here,
`SFFA did not raise that same claim on behalf of its
`white associational standing member. Its
`lone
`common claim between the two factually distinct
`cases is that Grutter should be overruled, but this
`Court typically does not take up cases before
`judgment even when other cases involving the same
`claims may be in the pipeline—especially in cases, like
`the present, where there are no grounds to forgo the
`normal appellate process.
`The fact-intensive nature of this case, focused
`on UNC-specific information and evidence, also
`makes it an especially poor vehicle for granting
`certiorari before judgment on SFFA’s race-neutral
`claim. The district court found that UNC had properly
`evaluated in good faith all available race-neutral
`
` 3
`
`
`
`
`
`
`
`

`

`
`
`
` 4
`
`
`
`
`alternatives and validly determined that they would
`not work about as well and at tolerable administrative
`expense as UNC’s race-conscious program. And the
`court examined all race-neutral alternatives proposed
`by SFFA and rejected those because they would force
`UNC to abandon holistic admissions altogether,
`directly undermine UNC’s broad diversity goals, and
`lead to a drop in enrollment of underrepresented
`students of color. Such outcomes run contrary to this
`Court’s well-settled precedent. Allowing this case to
`proceed through the normal process, as in Fisher, will
`allow the Fourth Circuit to more properly weigh
`SFFA’s dispute with the factual underpinnings of the
`district court’s ruling.
`Because SFFA has not and cannot demonstrate
`any exigent circumstances, much less an issue of
`imperative public importance warranting resolution
`of this case on an emergency basis, this Court should
`deny SFFA’s petition.
`
`
` STATEMENT
`
`A. Procedural Posture
`
`
`
`SFFA filed this case in 2014, asserting three
`claims against UNC: 1) failure to use race merely as a
`“plus” factor in admissions decisions; 2) failure to
`employ available race-neutral alternatives capable of
`achieving student body diversity; and 3) employing an
`undergraduate admissions policy that uses race as a
`
`
`
`
`
`

`

`
`
`
` 5
`
`
`
`
`factor in admissions. App.2. In 2015, SFFA and UNC
`agreed to a partial stay of the proceedings pending
`resolution of Fisher II in the Supreme Court. App.6.
`Following this Court’s decision in 2016 upholding the
`University of Texas at Austin’s (UT-Austin) race-
`conscious holistic admissions plan, the district court
`fully resumed the proceedings. In 2017, the district
`court granted Respondent-Students intervention as
`defendants. App.5-6. Respondent-Students are a
`racially and ethnically diverse group of historically
`underrepresented and marginalized students of color2
`who applied, attended, and/or recently graduated
`from UNC. App.4-5.
`In November 2020, the court held an eight-day
`trial, receiving testimony and evidence from the
`parties, including testimony, declarations, and college
`applications from Respondent-Students. App.7. After
`thoroughly examining the evidence against this
`Court’s strict scrutiny standards, the district court
`issued its 155-page opinion upholding UNC’s race-
`conscious holistic admissions plan, concluding that
`UNC “met its burden of demonstrating that the
`University’s undergraduate admissions program
`withstands
`strict
`scrutiny and
`is
`therefore
`constitutionally permissible.” App.145. The court
`
`
`2 For purposes of this brief, “students of color” refers to students
`who
`identify with historically underrepresented
`and
`marginalized racial and ethnic groups,
`including Black,
`Hispanic/Latinx, and Native American students.
`
`
`
`
`
`

`

`
`
`
` 6
`
`
`
`
`issued its Final Judgment on November 4, 2021
`(App.252-53) and on November 6, 2021, SFFA filed its
`appeal to the Fourth Circuit Court of Appeals.
`D.C.Dkt.258. On November 11, 2021, SFFA filed the
`subject petition now pending asking this Court to
`review the district court’s opinion rejecting its race-
`neutral claim and dismissing its claim seeking to
`overrule Grutter.
`
`
`B. UNC’s Holistic Admissions
`
`
`
`UNC remains a highly selective university,
`with approximately 43,500 applicants vying for only
`4,200 freshman seats. App.23. Its application process
`allows highly trained admission officials to review a
`wide
`portfolio
`of
`student
`experiences
`and
`qualifications, including but not limited to the
`Common Application, essay questions, high school
`transcripts, standardized test scores, and letters of
`recommendation. App.24. Race is one of more than
`forty criteria considered by UNC in a flexible way to
`consider all pertinent elements of diversity for any
`applicant and each of the criteria may be considered
`at every stage of the admissions process. App.37, 51.
`Contrary to SFFA’s disingenuous portrayal of
`the evidence in this case, race is not focused on
`“intently” and “crudely” by UNC admissions officers.
`Pet.5-6. SFFA cites to a handful of isolated comments
`in emails and application reviews noting a student’s
`
`
`
`
`
`

`

`
`
`
` 7
`
`
`
`
`race but SFFA fails to apprise this Court of the district
`court’s careful examination of those allegations. Upon
`review of the evidence, the district court concluded
`that none of the comments “indicate[] that race is
`considered outside of a holistic admissions process,
`much less as the defining feature of any application.”
`App.40. In rejecting SFFA’s assertions, the court
`noted:
`
`There is no evidence that any of the statements
`about race was considered as anything other
`than a “plus” factor.
`Every comment that invoked a provisional
`decision is accompanied with nonracial factors,
`such
`as
`“solid
`everything,”
`“[s]tellar
`academics,” and standardized test scores.
`The eight statements were the only statements
`proffered out of hundreds of thousands of
`application files and materials shared with
`SFFA.
`App.39-41.
`Indeed, the record bears out how UNC’s
`admissions process is highly individualized, only
`considers race alongside other contextual factors,
`values many other diversity attributes, and does not
`apply an automatic or outsized boost for race. See, e.g.,
`App.22-37; D.C.Dkt.246 at 19 ¶ 35. SFFA’s expert
`analysis itself showed how UNC admits many white
`students with relatively low standardized test scores
`and rejects many underrepresented students of color
`
`
`
`
`
`
`
`
`
`

`

`
`
`
` 8
`
`
`
`
`with relatively high test scores. App.78; D.C.Dkt.246
`at 21 ¶ 38. Similar evidence in Grutter demonstrated
`how the university applied a flexible approach that
`weighs many diversity factors besides race that can
`make a difference for all applicants. 539 U.S. at 338-
`39.
`
`
`C. UNC’s Pursuit of the Educational
`Benefits of Diversity
`
`
`
`UNC’s decision to pursue the educational
`benefits of diversity through its race-conscious holistic
`admissions is based on a principled, well-reasoned
`explanation and is grounded in its mission: “to serve
`as the center for research, scholarship, and creativity
`and to teach a diverse community of undergraduate,
`graduate, and professional students to become the
`next generation of leaders.” App.8. Consistent with
`this Court’s prior opinions, UNC views diversity
`broadly as “all the ways in which people differ,
`including primary characteristics, such as age, race,
`gender, ethnicity, mental and physical abilities, and
`sexual orientation; and secondary characteristics,
`such as education, income, religion, work experiences,
`language skills, geographic location, and family
`status.” App.9.
`UNC’s pursuit of the benefits of diversity is
`materializing on campus. Respondent-Students,
`among other witnesses, testified “credibly and
`compellingly” that their educational experiences have
`
`
`
`
`
`

`

`
`
`
`
`been enriched by the racial and ethnic diversity at
`UNC. App.18. Rimel Mwamba testified that her
`experiences will “enable her to treat and care for a
`diverse patient population in her career as a doctor.”
`Id. Andrew Brennen described at trial how he became
`aware of islamophobia on UNC’s campus after
`attending a campus vigil held for the murder of three
`Muslim students. D.C.Dkt.246 at 24 ¶ 45. Mary
`Cooper, a white alumna, testified by declaration that
`her educational experiences with diversity “prepared
`her to work with, coach, and teach others who do not
`look like her or who have not had similar experiences.”
`App.17-18. Other alumni testified that exposure to
`diversity is necessary to prepare future leaders.
`App.18. SFFA did not submit evidence contesting
`these benefits.
`But while the benefits of diversity are accruing
`at UNC, challenges remain. UNC’s sordid history
`with racial discrimination and continuing vestiges
`present a formidable barrier to equal educational
`opportunities for historically marginalized students of
`color. App.11, n.5. In 2013, UNC struggled to enroll
`African American males in the first-year class when
`their enrollment fell below 100 students. App.20. This
`incident provoked three students to film a video
`describing their experiences in front of the UNC
`admissions office and Native American students
`similarly spoke out shortly thereafter. App.61. In
`2016, total Black enrollment at UNC was only 8%
`
` 9
`
`
`
`
`
`
`
`

`

`
`
`
`10
`
`
`compared to a population in North Carolina of 21.5%
`while white student enrollment registered at 72%
`compared to 69% across the state. App.21. This is not
`to suggest that UNC’s student population should
`match the state population by race, but it does show,
`in part, that UNC’s program still faces significant
`challenges in enrolling Black students.
`At trial, university officials, experts, and
`students all testified irrefutably that despite some
`progress on diversity, significant work remains.
`App.19-22. Respondent-Students testified how the
`underrepresentation of students of color caused them
`to experience feelings of isolation, tokenism, and
`unfair pressure to represent their race or ethnicity.
`App.20, 61. Star Wingate-Bey testified that as the
`only Black student in many of her classes, she often
`felt like “the token or the sole representative for [her]
`race[,] or the fact checker for [her] race, which can be
`a bit of a burden, in class.” App.61-62. Cecilia Polanco
`testified that she was often called upon to speak on
`Latinx and immigrant issues, which made her feel
`uncomfortable because she “didn’t want to be a
`speaker for [her] whole community just based on [her]
`experience. It felt like tokenization.” App.61. Campus-
`wide surveys reflected similar distress among
`underrepresented students of color. App.21.
`UNC’s pursuit of the educational benefits of
`diversity has not compromised its commitment to a
`holistic, individualized review of each applicant,
`
`
`
`
`
`

`

`
`
`
`11
`
`
`which aligns well with this Court’s previous opinions.
`There was no credible evidence of UNC using race as
`the defining feature of any application or that it
`separated applicants into different admissions tracks,
`used quotas, or awarded any kind of bonus points on
`the basis of race. App.22, 36-37. No credible statistical
`or non-statistical evidence demonstrated otherwise.
`App.38-42, 65-113.
`
`
`D. Race-Neutral Alternatives
`
`
`
`The district court found that “UNC has
`engaged in serious, good faith consideration” of race-
`neutral (or nonracial, race-blind) approaches and has
`implemented several promising policies and practices.
`App.114. Adopted practices and programs include:
`UNC’s targeted recruitment in underrepresented
`communities across North Carolina; operation of
`Project Uplift, a pipeline program available to rural,
`low-income, underrepresented, and first-generation
`students, among others; support for affinity students
`groups; travel grants for low-income students and one
`parent to visit campus; and the Carolina College
`Advising Corps, which places recent UNC graduates
`as college advisors in public high schools across the
`state to help underrepresented students and families
`with college admissions, scholarship applications, and
`the
`financial aid process. App.118-120. Other
`programs include robust financial aid programs and
`college transfer programs for low- and moderate-
`
`
`
`
`
`

`

`
`
`
`12
`
`
`income students attending partner community
`colleges. App.120-22.
`The court also examined SFFA’s and UNC’s
`expert analyses of UNC-specific data involving
`several race-neutral alternative programs proposed
`by SFFA. The court found that SFFA’s expert Richard
`Kahlenberg “lacked an intimate knowledge of the
`simulations prepared by [SFFA’s other expert]
`Professor Arcidiacono from which he was testifying”
`and that his independence was seriously questioned.
`App.180. In contrast, the court recognized UNC’s
`expert, Dr. Caroline Hoxby, as providing “credible
`expert evidence that supports and strengthens its
`assessment that no available race-neutral alternative
`would allow the University to achieve its compelling
`interest nearly as well as race conscious strategies at
`tolerable expense.” Id. Dr. Hoxby performed more
`than 100 race-neutral simulations. Id.
`After an exhaustive analysis of the testimony
`received, the court found that “[w]hen taking into
`account the assumptions that must be made to attain
`even the most optimistic outcomes, [] none of the
`models before it from either party would be viable in
`reproducing the educational benefits of diversity
`about as well as a race-conscious admissions policy.”
`App.182.
`The district court concluded that UNC has a
`continuing duty to examine and identify—through
`serious, good faith efforts—a race-neutral alternative
`
`
`
`
`
`

`

`
`
`
`13
`
`
`program that would promote its compelling interest
`about as well as its race-conscious program and at
`tolerable administrative expense and that it has
`engaged in such periodic assessments. App.164-65,
`184. The court further noted a stark reality: that
`although UNC has made progress, UNC still has a
`ways to go to achieving the educational benefits of
`diversity. Students of color “still report being
`confronted with racial epithets, as well as feeling
`isolated, ostracized, stereotyped, and viewed as
`tokens in a number of University spaces.” App.185. In
`light of these facts and continuing inequities in
`admission rates for underrepresented students of
`color, the court did not suggest that UNC must engage
`in perpetual race-conscious admissions as SFFA
`avers. Instead, it recognized: “Ensuring that our
`public institutions of higher learning are open and
`available to all segments of our citizenry is not a gift
`to be sparingly given to only select populations, but
`rather is an institutional obligation to be broadly and
`equitably administered.” Id.
`
`
`
`
`
`

`

`
`
`
`14
`
`ARGUMENT
`
`I.
`
`This Litigation Presents No Emergency
`Warranting the Extraordinary Remedy
`of Certiorari Before Judgment
`
`A.
`
`SFFA Fails to Demonstrate the Kind
`of Urgency Demanded Under Rule
`11
`
`
`
`
`
`
`
`The petition should be denied because SFFA
`has failed to show the exigent circumstances that
`warrant the extraordinary relief of certiorari before
`judgment. In fact, SFFA conspicuously omits Rule
`11’s language that petitioners must show the issue
`“require[s] immediate determination.” Pet.10. For
`this Court to bypass the court of appeals, the case
`must be “of great constitutional significance and of
`extraordinary national importance for other reasons”
`and the “public

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