No.

______

In the Supreme Court of the United States

STUDENTS FOR FAIR ADMISSIONS, INC.,

Petitioner,
v.
UNIVERSITY OF NORTH CAROLINA, et al.,
Respondents.

ON PETITION FOR A WRIT OF CERTIORARI BEFORE

JUDGMENT TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT

Alan Ruley Thomas R. McCarthy

BELL, DAVIS & PITT, P.A. Counsel of Record
P.O Box 21029 William S. Consovoy
Winston-Salem, NC J. Michael Connolly
27120 Bryan Weir
(336) 714-4147 Cameron T. Norris
James F. Hasson
Patrick Strawbridge CONSOVOY MCCARTHY PLLC
CONSOVOY MCCARTHY 1600 Wilson Blvd., Ste. 700
PLLC Arlington, VA 22209
Ten Post Office Square (703) 243-9423
8th Floor South [email protected]
PMB #706
Boston, MA 02109
(617) 227-0548

November 11, 2021 Attorneys for Petitioner

 i
QUESTIONS PRESENTED
1. Should this Court overrule Grutter v. Bol-
linger, 539 U.S. 306 (2003), and hold that institu-
tions of higher education cannot use race as a factor
in admissions?

2. Can a university reject a race-neutral alterna-

tive because it would change the composition of the
student body, without proving that the alternative
would cause a dramatic sacrifice in academic quality
or the educational benefits of overall student-body
diversity?
 ii
PARTIES TO THE PROCEEDING
Petitioner is Students for Fair Admissions
(SFFA). Petitioner was the plaintiff below.
Respondents are the University of North Caroli-
na; 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 Span-
gler 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 Polance; Luis
Acosta; Star Wingate-Bey; Laura Ornelas; Kevin
Mills, on behalf of Q.M.; Angie Mills, on behalf of
Q.M.; Christopher Jackson; Julia Nieves, on behalf of
I.M.; Tamika Williams, on behalf of A.J.; Romonia
Jones; and Andrew Brennan. These parties were de-
fendant-intervenors below.
 iii
RULE 29.6 STATEMENT
SFFA has no parent company or publicly held
company with a 10% or greater ownership interest in
it.
 iv
RELATED PROCEEDINGS
United States District Court (M.D.N.C.):
Students for Fair Admissions, Inc. v. University of
North Carolina, et al., No. 14-cv-954-LCB
(Jan. 13, 2017) (order granting motion to in-
tervene)
Students for Fair Admissions, Inc. v. University of
North Carolina, et al., No. 14-cv-954-LCB
(Sept. 29, 2018) (order denying motion to dis-
miss)
Students for Fair Admissions, Inc. v. University of
North Carolina, et al., No. 14-cv-954-LCB
(Sept. 30, 2019) (order denying motions for
summary judgment)
Students for Fair Admissions, Inc. v. University of
North Carolina, et al., No. 14-cv-954-LCB
(May 28, 2020) (order granting partial judg-
ment on the pleadings)
Students for Fair Admissions, Inc. v. University of
North Carolina, et al., No. 14-cv-954-LCB (Oct.
18, 2021) (trial findings of fact and conclusions
of law)
 v
TABLE OF CONTENTS
Questions Presented ................................................... i

Parties to the Proceeding ........................................... ii

Rule 29.6 Statement .................................................. iii

Related Proceedings .................................................. iv

Table of Authorities................................................. viii

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Constitutional and Statutory Provisions

Involved .......................................................................1

Introduction .................................................................2

Statement of the Case .................................................4

A. UNC’s Use of Race in Its Admissions

Process ............................................................4

B. Proceedings Below ..........................................7

Reasons for Granting the Petition ............................10

I. The Court should grant certiorari to

consider overruling Grutter. ...............................13

A. Grutter is grievously wrong. ........................14

B. Grutter has spawned significant

negative consequences..................................21
 vi
C. Grutter has generated no legitimate
reliance interests. .........................................25

II. The Court should also grant certiorari to

consider whether UNC’s admissions
program satisfies strict scrutiny. .......................28

Conclusion .................................................................32

Appendix

Appendix A
Trial Findings of Fact and Conclusions of
Law in the United States District Court for
the Middle District of North Carolina
(Oct. 18, 2021) .............................................. App. 1

Appendix B
Order in the United States District Court
for the Middle District of North Carolina
(May 28, 2020).......................................... App. 187

Appendix C
Memorandum Opinion and Order in the
United States District Court for the
Middle District of North Carolina
(Sept. 30, 2019) ........................................ App. 191

Appendix D
Memorandum Opinion and Order in the
United States District Court for the
Middle District of North Carolina
(Sept. 29, 2018) ........................................ App. 230
 vii
Appendix E
Judgment in the United States District
Court for the Middle District of North
Carolina (Nov. 4, 2021) ............................ App. 252
 viii
TABLE OF AUTHORITIES
Cases

Adarand Constructors, Inc. v. Peña,

515 U.S. 200 (1995) ................................. 17, 24, 25

Allen v. Cty. Sch. Bd. of Prince Edward Cty.,

249 F.2d 462 (4th Cir. 1957) ............................... 30

Batson v. Kentucky,
476 U.S. 79 (1986) ............................................... 25

Brown v. Board of Education,

347 U.S. 483 (1954) ......................... 3, 4, 15, 17, 25

Bush v. Vera,
517 U.S. 952 (1996) ............................................. 16

Citizens United v. FEC,

558 U.S. 310 (2010) ....................................... 19, 21

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ................................... 2, 21, 26

Dred Scott v. Sandford,

60 U.S. 393 (1857) ............................................... 14

Fisher v. Univ. of Tex. at Austin (Fisher I),

570 U.S. 297 (2013) ..................................... passim

Fisher v. Univ. of Tex. at Austin (Fisher II),

136 S.Ct. 2198 (2016) .................................. passim
 ix
Franchise Tax Bd. of Calif. v. Hyatt,
139 S.Ct. 1485 (2019) .......................................... 13

Gratz v. Bollinger,
122 F. Supp. 2d 811 (E.D. Mich. 2000) .............. 11

Gratz v. Bollinger,
539 U.S. 244 (2003) ............................. 2, 11, 12, 21

Grutter v. Bollinger,
539 U.S. 306 (2003) ..................................... passim

Hopwood v. Texas,
78 F.3d 932 (5th Cir. 1996) ................................. 16

Janus v. AFSCME,
138 S.Ct. 2448 (2018) .............................. 17, 20, 27

Knick v. Twp. of Scott,

139 S.Ct. 2162 (2019) .............................. 13, 15, 21

Lawrence v. Texas,
539 U.S. 558 (2003) ............................................. 18

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ...............................................2

Metro Broad., Inc. v. FCC,

497 U.S. 547 (1990) ....................................... 16, 17

Miller v. Johnson,
515 U.S. 900 (1995) ............................................. 16
 x
Montejo v. Louisiana,
556 U.S. 778 (2009) ............................................. 25

Palmore v. Sidoti,
466 U.S. 429 (1984) ............................................. 15

Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701 (2007) ................. passim

Plessy v. Ferguson,
163 U.S. 537 (1896) ................................... 3, 14, 17

Price v. Civil Serv. Comm'n,

604 P.2d 1365 (Cal. 1980) .....................................3

Ramos v. Louisiana,
140 S.Ct. 1390 (2020) .................................. passim

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ............................................. 19

Schuette v. BAMN,
572 U.S. 291 (2014) ..................................... passim

Shaw v. Hunt,
517 U.S. 899 (1996) ............................................. 15

Shaw v. Reno,
509 U.S. 630 (1993) ............................................. 24

Smith v. Allwright,
321 U.S. 649 (1944) ....................................... 24, 25
 xi
Trump v. Hawaii,
138 S.Ct. 2392 (2018) .......................................... 25

Washington v. Lee,
263 F. Supp. 327, 331 (M.D. Ala. 1966) ............. 30

Wygant v. Jackson Bd. of Educ.,

476 U.S. 267 (1986) ............................................. 15

Constitution and Statutes

U.S. Const. amend XIV ...............................................1

Decl. of Independence, 1 Stat. 1 (July 4, 1776) ........ 14

28 U.S.C. §1254(1) .......................................................1

28 U.S.C. §2101(e) .......................................................1

42 U.S.C. § 2000d ........................................................1

Rules

S.Ct. R. 10(c) ..............................................................12

S.Ct. R. 11 ..................................................................10

Other Authorities

2 Cong. Rec. 4083 (1874) ........................................... 14

Blumstein, Grutter and Fisher: A Reassessment

and a Preview, 65 Vand. L. Rev. En Banc 57
(2012) .................................................................... 16
 xii

Bollinger, A Comment on Grutter and Gratz v.

Bollinger, 103 Colum. L. Rev. 1589 (2003) ........ 20

Dodge, Largest Ever Student Body at University

of Michigan This Fall, Officials Say,
MLive.com (Oct. 22, 2021) .................................. 27

Graf, Most Americans Say Colleges Should Not

Consider Race or Ethnicity in Admissions,
Pew (Feb. 25, 2019) ............................................. 25

Haidt, Viewpoint Diversity in the Academy.............. 24

Pierre, Demands for Segregated Housing at

Williams College Are Not News, NAS
(May 8, 2019).......................................................24

Rubenfeld, Affirmative Action, 107 Yale L.J.

427 (1997) ............................................................ 20

Schuck, Affirmative Action: Past, Present, and

Future, 20 Yale L. & Pol’y Rev. 1 (2002) ............20

Stiksma, Understanding the Campus

Expression Climate: Fall 2019............................ 24

Supreme Court Practice (11th ed. 2019) ................... 11

Ting, ‘They Lost Partly Because of That Ad’:

How No on Prop. 16 Organizers Knew the
Measure Would Fail, SF Gate (Dec. 2, 2020) ..... 26
 xiii
University of California Will No Longer
Consider SAT and ACT Scores, N.Y. Times
(May 15, 2021)..................................................... 32

Watanabe, UC Admits Largest, Most Diverse

Class Ever, But It Was Harder to Get
Accepted, L.A. Times (July 19, 2021) ................. 27

Weybright, Study Finds Increasing

Discrimination Against Asians and Asian
Americans, WSU Insider (Nov. 4, 2020) ............ 23
 1
OPINIONS BELOW
The district court’s order granting partial judg-
ment on the pleadings is unreported and reproduced
at App.187-90. The district court’s post-trial findings
of fact and conclusions of law are not yet reported
but are reproduced at App.1-186.

JURISDICTION
The district court’s final judgment was entered
on November 4, 2021. App.252. This petition is filed
under Supreme Court Rule 11. The Court has juris-
diction under 28 U.S.C. §1254(1) and §2101(e).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED
Section 1, clause 2 of the Fourteenth Amendment
to the United States Constitution states:
No state shall make or enforce any law which
shall abridge the privileges or immunities of citi-
zens of the United States; nor shall any state de-
prive any person of life, liberty, or property,
without due process of law; nor deny to any per-
son within its jurisdiction the equal protection of
the laws.

Section 601 of Title VI of the Civil Rights Act of

1964 (42 U.S.C. §2000d) states:
No person in the United States shall, on the
ground of race, color, or national origin, be ex-
cluded from participation in, be denied the
benefits of, or be subjected to discrimination
under any program or activity receiving Fed-
eral financial assistance.
 2
INTRODUCTION
This case is a companion to Students for Fair
Admissions, Inc. v. President and Fellows of Harvard
University, No. 20-1199. Both cases were filed on the
same day. The Harvard case challenges racial pref-
erences at the nation’s oldest private college, and
this case challenges racial preferences at the nation’s
oldest public college. The Harvard case asks this
Court to overrule Grutter and hold that Title VI for-
bids funding recipients from using race in admis-
sions. This case asks the Court to recognize that, for
public schools, the Fourteenth Amendment’s guaran-
tee of racial neutrality compels the same conclusion.
Certiorari before judgment is appropriate here for
the same reasons it was in Gratz v. Bollinger, the
companion case to Grutter that was argued and de-
cided on the same day.

“It is a sordid business, this divvying us up by

race.” League of United Latin Am. Citizens v. Perry,
548 U.S. 399, 511 (2006) (Roberts, C.J., concurring in
part, concurring in the judgment in part, and dis-
senting in part). “‘[D]iscrimination on the basis of
race is illegal, immoral, unconstitutional, inherently
wrong, and destructive of democratic society.’” City of
Richmond v. J.A. Croson Co., 488 U.S. 469, 521
(1989) (Scalia, J., concurring in the judgment).
“‘[E]very time the government places citizens on ra-
cial registers and makes race relevant to the provi-
sion of burdens or benefits, it demeans us all.’” Fish-
er v. Univ. of Tex. at Austin (Fisher I), 570 U.S. 297,
316 (2013) (Thomas, J., concurring).
 3
“Our nation gave its word over and over again: it
promised in every document of more than two centu-
ries of history that all persons shall be treated
Equally.” Price v. Civil Serv. Comm’n, 604 P.2d 1365,
1390 (Cal. 1980) (Mosk, J., dissenting). “Our consti-
tution,” as Justice Harlan recognized, “is color-blind
and neither knows nor tolerates classes among citi-
zens.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896)
(dissent). The Court vindicated the promise of equali-
ty in Brown v. Board of Education, 347 U.S. 483
(1954), rejecting “‘any authority … to use race as a
factor in affording educational opportunities.’” Par-
ents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.
1, 551 U.S. 701, 747 (2007).

Yet Grutter v. Bollinger, 539 U.S. 306 (2003),

abandoned the principle of racial neutrality that
Brown vindicated. Grutter did so by improperly af-
fording broad deference to university administrators
to pursue a diversity interest that is far from compel-
ling. To this end, Grutter endorsed racial objectives
that are amorphous and unmeasurable and thus in-
capable of narrow tailoring. Unsurprisingly then,
universities have used Grutter as a license to engage
in outright racial balancing. This case shows that ju-
dicial scrutiny under Grutter is anything but strict. A
decision that was written to create no reliance inter-
ests, Grutter satisfies every factor that this Court
considers when deciding to overrule precedent.

If this Court revisits Grutter, it should also re-

view whether universities like UNC are even comply-
ing with existing precedent. They are not. Like Har-
vard, UNC rejects any race-neutral alternative that
 4
would change the composition of its student body,
even if those alternatives would improve overall stu-
dent-body diversity. But public schools have no legit-
imate interest in maintaining a precise racial bal-
ance, and they have no compelling interest in pre-
venting minor dips in average SAT scores. The same
Fourteenth Amendment that required public schools
to dismantle segregation after Brown cannot be
cowed by the diktats of university administrators. If
California and Michigan can maintain elite public
universities without sorting applicants by race, then
North Carolina can, too. This Court should grant cer-
tiorari and reverse the district court.

STATEMENT OF THE CASE

SFFA filed this case against UNC the same day
that it filed its companion case against Harvard.
Like Harvard, UNC is devoted to using race indefi-
nitely and at every stage of its admissions process.
The district court—after seven years of litigation and
an eight-day trial—upheld UNC’s system under a
version of strict scrutiny that was anything but.

A. UNC’s Use of Race in Its Admissions

Process
As Harvard is the nation’s oldest private college,
UNC is the nation’s oldest public college. App.3.
UNC’s admissions process is highly competitive.
App.23. It receives more than 43,000 applications
each year for a class of about 4,200 students. App.23.
State law requires that no more than 18% of each
class can be from out of state (or UNC suffers major
financial penalties); but about twice as many out-of-
 5
staters apply each year as in-staters. App.23 & n.8.
Out-of-state applicants thus are admitted at a far
lower rate (12-14%) than in-state applicants (47-
50%). App.23.

UNC uses a student’s race as a factor in its ad-

missions process. UNC awards racial preferences to
African Americans, Hispanics, and Native Ameri-
cans; UNC identifies these students as “underrepre-
sented minorities.” App.15, n.7, 37. Asian Americans
and whites don’t receive a racial preference; UNC
doesn’t consider these groups “underrepresented” be-
cause their percentage enrollment at UNC is higher
“‘than their percentage within the general population
in North Carolina.’” App.15, n.7, 37; see App.21
(Asian Americans are not “underrepresented” be-
cause they are 3% of the North Carolina population
but 12% of the UNC student body). Although college
admissions are zero-sum, Fisher v. Univ. of Tex. at
Austin (Fisher II), 136 S.Ct. 2198, 2227 n.4 (2016)
(Alito, J. dissenting), UNC insists that being Asian
American or white is never a “negative[]” in its pro-
cess, D.C.Dkt.244 at 549:12-14.

UNC considers an applicant’s race at “‘every

stage’” of the review process. App.51. In reviewing
applications, admissions officers focus intently (and
sometimes crudely) on an applicant’s race, as re-
vealed by online chats among admissions officers.
• “I just opened a brown girl who’s an 810
[SAT].”
• “If its brown and above a 1300 [SAT] put
them in for [the] merit/Excel [scholarship].”
 6
• “Still yes, give these brown babies a shot at
these merit $$.”
• “I am reading an Am. Ind.”
• “[W]ith these [URM] kids, I’m trying to at
least give them the chance to compete even if
the [extracurriculars] and essays are just av-
erage.”
• “I don’t think I can admit or defer this brown
girl.”
• “perfect 2400 SAT All 5 on AP one B in 11th”
“Brown?!”
“Heck no. Asian.”
“Of course. Still impressive.”
• “I just read a blk girl who is an MC and Park
nominee.”
Pl’s Ex. 84 (D.C.Dkt.163-16); see also Pl’s Ex. 74
(D.C.Dkt.166-6) (“Stellar academics for a Native
Amer/African Amer kid.”); Pl’s Ex. 75 (D.C.Dkt.163-
27) (“I’m going through this trouble because this is a
bi-racial (black/white) male.”). In the ultimate deci-
sion, a student’s race is often the “determinative” fac-
tor in whether the student is admitted or denied.
App.112-13.

When awarding racial preferences, UNC’s goal

isn’t to achieve a “critical mass.” UNC does not “dis-
cuss the concept of ‘critical mass’ in its Admissions
Office, has not determined if it has achieved a critical
mass of underrepresented students, and has not de-
fined the term.” App.54-55; see D.C.Dkt.167 at
144:22-145:5 (“[N]o one has directed anybody to
 7
achieve a critical mass, and I’m not even sure we
would know what it is.”). UNC instead uses race to
achieve the “educational benefits of diversity.”
App.56-58. UNC has never “set forth a proposed time
period in which it believes it can end all race-
conscious admissions practices.” App.62.

Before SFFA filed this lawsuit, UNC authored an

amicus brief in Fisher I. See UNC-Amicus-Br., Fisher
v. Univ. of Tex. at Austin, No. 11-345 (S. Ct. Aug. 9,
2012). There, UNC told the Court that its use of race
as a factor in admissions was “indispensable in ful-
filling its mission.” Id. at 4-5. UNC also noted that it
had rejected a race-neutral alternative that would
increase the percentage of underrepresented minori-
ties admitted to UNC (from 15% to 16%) because av-
erage SAT scores could decline by 56 points (from
1317 to 1262) and first-year GPAs could drop by 0.1
points (from 3.26 to 3.16). Id. at 33-34.

B. Proceedings Below
On November 17, 2014—the same day that SFFA
sued Harvard—SFFA sued UNC in the Middle Dis-
trict of North Carolina for violating the Fourteenth
Amendment and Title VI. A 501(c)(3) voluntary
membership organization, SFFA is dedicated to de-
fending the right to equality in college admissions.
App.3. SFFA sued on behalf of its members, includ-
ing students who were denied admission to UNC and
who stand ready and able to apply to transfer if UNC
stops racially discriminating. App.234-35, 243-44.

In Count III of its complaint, SFFA alleged that

UNC’s admissions process is illegal because it “uses
 8
race as a factor in admissions.” App.188. Although
there was “‘no dispute that [UNC] considers race as a
factor within its admissions process,’” SFFA’s claim
was foreclosed by Supreme Court precedent.
App.189. In May 2020, the district court granted
UNC partial judgment on the pleadings on Count III.
App.187-90.

In November 2020, the district court held an

eight-day bench trial on SFFA’s remaining claims,
which challenged whether UNC was complying with
existing precedent. The court heard testimony from
UNC employees, UNC students, and experts from
both parties. App.7. SFFA’s expert, a highly respect-
ed economist from Duke University, presented evi-
dence showing that UNC awards substantial prefer-
ences for African Americans and Hispanics. App.63-
64; see D.C.Dkt.228 at 114:14-224:20; D.C.Dkt.229 at
229:22-298:1; D.C.Dkt.247-1 at 12, 15, 33-34, 37-40,
43, 46-48. SFFA’s other expert, a leading authority
on race-neutral alternatives, presented evidence that
UNC had a number of workable race-neutral alter-
natives available, including alternatives that would
provide socioeconomic preferences instead of racial
ones. App.120 & n.39; D.C.Dkt.244 at 424:1-460:11;
D.C. Dkt.247-2 at 13-23.

On October 18, 2021, nearly seven years after

SFFA’s complaint was filed, the district court ruled
for UNC, holding that UNC’s use of race satisfies
strict scrutiny and was consistent with this Court’s
precedents. First, the court held that UNC’s use of
race was narrowly tailored because the university
uses race “flexibly as a ‘plus’ factor” and only as “one
 9
among many factors.” App.165-75. The court found
that the non-statistical evidence, including the ad-
missions officers’ chatroom discussions, supra 5-6,
was consistent with “the type of holistic process UNC
describes” and didn’t show that race is “a defining
feature of [any] application.” App.40-41, 169. Exam-
ining the statistical evidence, the court found that
both parties’ experts were “highly qualified,” App.63-
65, but that UNC’s expert’s analysis was “more pro-
bative on the issue of whether race is a dominant fac-
tor,” App.171-75. The court concluded that UNC’s
use of race was constitutional because it is the deci-
sive factor in only 5.1% of out-of-state decisions and
1.2% of in-state decisions. App.112-13.

Second, the court held that UNC had no viable

race-neutral alternatives that would allow it to
“achieve the educational benefits of diversity about
as well as its current race-conscious policies and
practices.” App.176-83. Giving admissions prefer-
ences based on socioeconomic status instead of race,
the court believed, would always fail because “the
majority of low-income students are white,” and so
universities would just “‘be choosing more white stu-
dents.’” App.136-37. In addition, the court rejected as
unworkable race-neutral alternatives that would
cause small changes in the admitted class. App.134-
35, 139-40. For example, the court found that one
race-neutral alternative was unworkable because
underrepresented minority admissions would decline
from 16.5% to 16.0%, average SAT scores would be in
the 90th percentile instead of the 92nd percentile,
and UNC would have to admit some students based
 10
solely on academic criteria. App.134 n.43; Dkt.247-2
at 23.

In the end, the district court emphasized, UNC’s

use of race should continue indefinitely. Because race
is “interwoven in every aspect of the lived experience
of minority students,” race could never be “ignore[d]”
or “reduce[d] [in] importance.” App.185. Until the na-
tion ended its “struggle with racial inequality,” mi-
nority students would continue to be “less likely to be
admitted in meaningful numbers on [race-neutral]
criteria.” App.186. Thus, despite UNC’s long use of
racial preferences, the university was “far from cre-
ating [a] diverse environment” and still had “much
work to do.” App.184-86.

The district court entered its final judgment on

November 4, 2021. App.252. SFFA immediately ap-
pealed to the U.S. Court of Appeals for the Fourth
Circuit. See Students for Fair Admissions, Inc. v.
Univ. of N.C., No. 21-2263 (4th. Cir.).

REASONS FOR GRANTING THE PETITION

This Court should grant immediate review be-
cause this case presents a question of “imperative
public importance” that is already before the Court
in SFFA v. Harvard. S.Ct. R. 11. This Court regular-
ly grants certiorari before judgment “in situations
where similar or identical issues of importance [are]
already pending before the Court and where it [is]
considered desirable to review simultaneously the
questions posed in the case still pending in the court
of appeals.” Supreme Court Practice §2.4 (11th ed.
2019) (listing cases).
 11
This case and Harvard should be heard together.
The first question presented in both cases is the
same: whether this Court should overrule Grutter
and hold that institutions of higher education cannot
use race as a factor in admissions. This Court can re-
solve that momentous question in either case. But if
it decides to revisit Grutter, its analysis would be
more complete if it considered both a private univer-
sity (Harvard) and a public university (UNC) and
both the Constitution (UNC) and Title VI (Harvard
and UNC).

This Court acted similarly in Grutter itself. After

the en banc Sixth Circuit ruled for Michigan Law
School, Barbara Grutter asked this Court to review
“[w]hether diversity is a compelling interest that can
justify the narrowly tailored use of race” in admis-
sions. Grutter, 539 U.S. at 322. This Court granted
certiorari. Id. Meanwhile, a district court had upheld
Michigan’s process for using race in undergraduate
admissions. Gratz v. Bollinger, 122 F. Supp. 2d 811,
831 (E.D. Mich. 2000). Jennifer Gratz thus petitioned
for certiorari before judgment so this Court “could
address the constitutionality of the consideration of
race in university admissions in a wider range of cir-
cumstances.” Gratz v. Bollinger, 539 U.S. 244, 259-60
(2003). This Court agreed, allowing it to consider the
constitutionality of race-based admissions in two key
contexts. The Court should do the same here.

Grutter’s core holding—that universities can use

race in admissions to pursue student-body diversi-
ty—is plainly wrong. It satisfies all the criteria that
this Court considers when overruling precedents.
 12
Only this Court can overrule its own precedent, and
whether to overrule Grutter is “an important ques-
tion of federal law that has not been, but should be,
settled by this Court.” S.Ct. R. 10(c). That question
was not raised in the Fisher litigation—the only oth-
er time this Court evaluated a university’s race-
based admissions under Grutter. Fisher I, 570 U.S. at
311, 313. This case, especially when paired with
Harvard, presents an ideal opportunity to reexamine
Grutter.

If the Court grants certiorari to reconsider Grut-

ter, then it should also grant certiorari on the second
question presented here: whether UNC fails strict
scrutiny because it refuses to use workable race-
neutral alternatives. Again, this Court did something
similar in Grutter and Gratz. After concluding that
universities could use race in admissions to pursue
student-body diversity, this Court went on to consid-
er whether the two admissions programs there satis-
fied strict scrutiny—affirming the Sixth Circuit in
Grutter and reversing the district court in Gratz.

As in Gratz, Fisher I, and Harvard, the court be-

low “did not hold the University to the demanding
burden of strict scrutiny.” Fisher I, 570 U.S. at 303.
The district court was presented with multiple work-
able race-neutral alternatives, including ones that
would improve overall diversity at UNC. The district
court rejected them, however, because they would
change the racial or socioeconomic composition of
UNC’s student body or lead to slightly lower average
SAT scores. But UNC could not show that these
changes would prevent it from achieving the educa-
 13
tional benefits of overall student-body diversity—an
interest distinct from racial diversity and the only
compelling interest that this Court has recognized.
And the fact that the government finds a race-
neutral alternative painful or unpleasant has never
been a reason to let it keep classifying its citizens by
race.

I. The Court should grant certiorari to con-

sider overruling Grutter.
Overruling precedent is always serious, “[b]ut
stare decisis is not an inexorable command.” Fran-
chise Tax Bd. of Calif. v. Hyatt, 139 S.Ct. 1485, 1499
(2019) (cleaned up). This Court considers overruling
a precedent virtually every Term, many of this
Court’s “most notable and consequential decisions”
overruled precedent, and almost “every current
Member of this Court” voted to overrule “multiple
constitutional precedents” in “just the last few
Terms.” Ramos v. Louisiana, 140 S.Ct. 1390, 1411
(2020) (Kavanaugh, J., concurring in part) (collecting
cases). That’s because stare decisis “‘is at its weakest
when [this Court] interpret[s] the Constitution,’” as
it did in Grutter. Knick v. Twp. of Scott, 139 S.Ct.
2162, 2177 (2019).

When deciding whether to overrule a precedent,

this Court considers “a number of factors.” Hyatt, 139
S.Ct. at 1499. Those factors can be organized into
“three broad considerations”:
1. Is the prior decision “not just wrong, but
grievously or egregiously wrong”?
 14
2. Has the prior decision “caused significant
negative jurisprudential or real-world
consequences”?
3. Would overruling the prior decision “un-
duly upset reliance interests”?
Ramos, 140 S.Ct. at 1414-15 (Kavanaugh, J., concur-
ring in part). These considerations all point in the
same direction here: Grutter should be overruled.

A. Grutter is grievously wrong.

Grutter was wrong the day it was decided. De-
spite reaffirming that “all” racial classifications must
satisfy strict scrutiny, Grutter held that “student
body diversity” can “justify the use of race in univer-
sity admissions.” 539 U.S. at 325-26. That holding
departs from the Constitution’s original meaning,
contradicts other precedents, has eroded over time,
and has no true defenders.

Grutter has no support in the Fourteenth

Amendment’s “historical meaning.” Ramos, 140 S.Ct.
at 1405. As written, the Fourteenth Amendment con-
tains no exceptions. The Amendment, according to its
framers, enshrines the principle that “free govern-
ment demands the abolition of all distinctions found-
ed on color and race.” 2 Cong. Rec. 4083 (1874). That
principle was not new: the self-evident truth that “all
men are created equal” was a cornerstone of the
American founding. Decl. of Independence, 1 Stat. 1
(July 4, 1776). While the country long violated that
principle in practice, e.g., Dred Scott v. Sandford, 60
U.S. 393 (1857); Plessy, 163 U.S. 537, those viola-
tions did not alter or diminish the principle itself. As
 15
Justice Harlan immediately recognized in Plessy,
“Our constitution is color-blind, and neither knows
nor tolerates classes among citizens.” 163 U.S. at 559
(dissent). His dissent was ultimately vindicated in
Brown, where this Court denied “‘any authority … to
use race as a factor in affording educational opportu-
nities.’” Parents Involved, 551 U.S. at 747. Because
Brown is right, Grutter is wrong.

Grutter also “conflicted with” this Court’s broader

equal-protection jurisprudence. Knick, 139 S.Ct. at
2178. Despite the absolutism of the constitutional
text, this Court has held that racial classifications
are legal if they satisfy strict scrutiny. But this Court
often rejects interests as not compelling enough to
justify racial classifications. Protecting a child’s best
interests isn’t enough. Palmore v. Sidoti, 466 U.S.
429, 433-34 (1984). Neither is remedying societal dis-
crimination. Shaw v. Hunt, 517 U.S. 899, 909-10
(1996). Creating a racially diverse faculty to provide
“role models” for minority students isn’t compelling
either. Wygant v. Jackson Bd. of Educ., 476 U.S. 267,
274-76 (1986) (plurality). Why these interests are not
compelling—but “‘cross-racial understanding’” and
“livelier” “classroom discussion” are, Grutter, 539
U.S. at 330—is impossible to explain. Grutter should
have rejected these all-too-familiar justifications for
sorting students by race. See Fisher I, 570 U.S. at
320-30 (Thomas, J., concurring).

Grutter’s diversity rationale is not only uncom-

pelling; it flouts basic equal-protection principles.
Although Grutter praised the “educational benefits”
of student body diversity writ large, its assumption
 16
that a university can predict, based solely on race, an
applicant’s “views” or “experience[s]” is little more
than racial stereotyping. 539 U.S. at 333; see Hop-
wood v. Texas, 78 F.3d 932, 946 (5th Cir. 1996). The
Fourteenth Amendment normally forbids “the as-
sumption that race or ethnicity determines how [in-
dividuals] act or think.” Metro Broad., Inc. v. FCC,
497 U.S. 547, 602 (1990) (O’Connor, J., dissenting);
see Bush v. Vera, 517 U.S. 952, 985-86 (1996). If a
university wants to admit students with certain ex-
periences (say, overcoming discrimination), then it
can evaluate whether individual applicants have
that experience. It cannot simply use “race as a
proxy” for certain experiences or views. Miller v.
Johnson, 515 U.S. 900, 914 (1995). Especially not to-
day, “in a society in which [racial] lines are becoming
more blurred.” Schuette v. BAMN, 572 U.S. 291, 308
(2014) (plurality).

The educational benefits that Grutter identified

are similarly suspect. Grutter insisted that race-
based admissions would “break down racial stereo-
types” and “‘prepare[] students for an increasingly
diverse workforce and society.’” 539 U.S. at 330.
Grutter thus treats underrepresented minorities not
as the beneficiaries of racial preferences, but as in-
struments to provide educational benefits for other,
mostly white students. Blumstein, Grutter and Fish-
er: A Reassessment and a Preview, 65 Vand. L. Rev.
En Banc 57, 65-66 (2012). “This is affirmative action
gone wild.” Fisher II, 136 S.Ct. at 2232 (Alito, J., dis-
senting).
 17
Even accepting Grutter’s perverse logic, the
Court required no proof that “a ‘critical mass’ of un-
derrepresented minorities [wa]s necessary” to secure
any educational benefits. 539 U.S. at 333; see 288
F.3d 732, 804-05 (6th Cir. 2002) (en banc) (Boggs, J.,
dissenting). The Court simply deferred to the law
school’s “experience and expertise.” 539 U.S. at 333.
But that logic “exhumes Plessy’s deferential ap-
proach to racial classifications.” Metro Broad., 497
U.S. at 632 (Kennedy, J., dissenting). The schools de-
fending segregation, after all, also wanted courts to
defer to their experience and expertise. Fisher I, 570
U.S. at 320-30 (Thomas, J., concurring). But the
Brown Court rightly refused because, contrary to
Grutter, the law presumes that racial classifications
“exacerbate rather than reduce racial prejudice.”
Adarand Constructors, Inc. v. Peña, 515 U.S. 200,
229 (1995).

Grutter’s narrow-tailoring reasoning cannot

“‘withstand careful analysis’” either. Janus v. AF-
SCME, 138 S.Ct. 2448, 2481 n.25 (2018). Narrow tai-
loring normally demands proof that racial classifica-
tions are “necessary” to achieve the compelling inter-
est—that race was a “‘last resort.’” Parents Involved,
551 U.S. at 734-35. But Grutter demands much less.
Race need only have a “minor” impact on diversity.
Fisher II, 136 S.Ct. at 2212. Universities can reject
race-neutral alternatives that, quite circularly, “may
well compromise [their] own definition of … diversi-
ty.” Id. at 2214. Universities can also reject alterna-
tives that would compromise their “reputation for
academic excellence.” Id. at 2213. And universities
can reject “facially neutral” alternatives, like per-
 18
centage plans, that would knowingly “boost minority
enrollment.” Id.

This last holding is particularly indefensible. Fa-

cially neutral policies are, at the very least, more
narrowly tailored than “individual racial classifica-
tions.” Parents Involved, 551 U.S. at 789 (Kennedy,
J., concurring in part and concurring in the judg-
ment). They “are race conscious but do not lead to
different treatment based on a classification that
tells each student he or she is to be defined by race.”
Id. Strict scrutiny requires universities to try them
“before turning to racial classifications.” Fisher I, 570
U.S. at 312.

Grutter’s “foundations” have also “sustained seri-

ous erosion.” Lawrence v. Texas, 539 U.S. 558, 576
(2003). Legally speaking, Grutter has no foundations,
“[g]iven how unmoored it was from the start.” Ra-
mos, 140 S.Ct. at 1405. But to the extent “later de-
velopments could have done more to undermine”
Grutter, “they have.” Id.

Every time the lower courts have extended Grut-

ter, this Court has reversed. Grutter cannot be ap-
plied to K-12 students. Parents Involved, 551 U.S. at
722-25. Grutter creates no right to race-based admis-
sions. Schuette, 572 U.S. at 300-14. And this Court
“clarified” that Grutter does not weaken the narrow-
tailoring standard that applies to other racial classi-
fications. Fisher II, 136 S.Ct. at 2209; see Fisher I,
570 U.S. at 312-14. Even in the one case that upheld
an admissions policy under Grutter, this Court
stressed that its decision was “sui generis” and had
 19
“limit[ed] value for prospective guidance.” Fisher II,
136 S.Ct. at 2208-09.

UNC thinks this Court “twice reaffirmed the

holding of Grutter” in Fisher I and Fisher II. Dkt.153
at 25. But Ms. Fisher did not “ask[]” the Court “to
overrule [Grutter],” so this Court did not “consider
how much weight to give stare decisis in assessing
[Grutter’s] continued validity.” Citizens United v.
FEC, 558 U.S. 310, 376-77 (2010) (Roberts, C.J., con-
curring). “The Court’s unwillingness to overturn
[Grutter]” in Fisher I or Fisher II thus “cannot be un-
derstood as a reaffirmation of that decision.” Id. at
377.

In terms of factual foundations, the Harvard liti-

gation revealed that Grutter rests on a lie. Grutter
used Harvard as its model for how to use race. 539
U.S. at 335-39. But while Harvard insinuated that it
uses race as one small factor to break ties between
qualified candidates, Regents of Univ. of Cal. v.
Bakke, 438 U.S. 265, 323-24 (1978) (op. of Powell, J.),
it actually obsesses over race throughout its process
and awards massive preferences to certain groups.
See Pet’n for Cert. 8-12, SFFA v. Harvard, No. 20-
1199 (S. Ct. Feb. 25, 2021) (Harvard Pet’n). Harvard
also neglected to mention that its policies were de-
signed to screen out disfavored minorities—first
Jews, now Asian Americans. See id. at 4-19.

For its part, UNC has never tied its admissions

program to this Court’s precedent. UNC does not use
race to enroll “a ‘critical mass’ of underrepresented
minorities.” Grutter, 539 U.S. at 333. Though critical
 20
mass is the only concept this Court has ever ap-
proved, UNC does not pursue that goal, use that
metric, or even understand what “critical mass”
means. UNC also disagrees that race-based admis-
sions are “‘a temporary matter’” that should “termi-
nate … as soon as practicable.” Id. at 342-43. Since
Grutter, UNC has not decreased its use of race, and
its racial preferences have no end in sight.

UNC’s disregard for Grutter is not unusual; es-

sentially no defenders of race-based admissions
“support the line that it has taken this Court over 40
years to draw.” Janus, 138 S.Ct. at 2481-82. Several
Justices have maintained, contrary to Grutter, that
policies meant to “benefit” racial minorities should
not receive strict scrutiny in the first place. E.g.,
Fisher I, 570 U.S. at 336-37 (Ginsburg, J., dissent-
ing); Schuette, 572 U.S. at 373-74 (Sotomayor, J., dis-
senting); Parents Involved, 551 U.S. at 829-37 (Brey-
er, J., dissenting). Elite universities agree. Shortly
after Grutter was decided, the defendant in that case
confessed that he had pressed “the ‘diversity’ ra-
tionale” as a litigation strategy. Bollinger, A Com-
ment on Grutter and Gratz v. Bollinger, 103 Colum.
L. Rev. 1589, 1590-91 (2003). He bemoaned that he
could not defend racial preferences as “a ‘remedy’ for
past societal discrimination”—what everyone in
higher education “really believed.” Id.; accord
Schuck, Affirmative Action: Past, Present, and Fu-
ture, 20 Yale L. & Pol’y Rev. 1, 34-36 (2002); Ruben-
feld, Affirmative Action, 107 Yale L.J. 427, 471-72
(1997).
 21
That no one believes in Grutter suggests that
Grutter is not worth believing in. Grutter’s “defend-
ers” are no doubt entitled to “base it on [other] con-
cerns … rather than the reasoning of the opinion it-
self.” Knick, 139 S.Ct. at 2178. But they are not enti-
tled to do so while also claiming the mantle of stare
decisis. Citizens United, 558 U.S. at 384-85 (Roberts,
C.J., concurring).

B. Grutter has spawned significant nega-

tive consequences.
Grutter has also proven “unworkable in practice.”
Knick, 139 S.Ct. at 2178. While the Fourteenth
Amendment contains no exceptions to the rule of “ra-
cial neutrality,” this Court has applied a “case-by-
case” approach that reviews each racial classification
under “strict scrutiny.” Croson, 488 U.S. at 518-19
(Kennedy, J., concurring in part and concurring in
the judgment). But “the assumption” underlying this
approach is that, in practice, “the strict scrutiny
standard will operate in a manner generally con-
sistent with the imperative of race neutrality.” Id. at
519. Strict scrutiny is supposed to approximate an
outright ban “because [the standard] forbids the use
even of narrowly drawn racial classifications except
as a last resort.” Id.

As it turns out, narrow tailoring does not mean-

ingfully limit universities’ use of race. This Court’s
precedents encourage universities to “resort to cam-
ouflage”—to use “winks, nods, and disguises” instead
of explicit racial quotas. Gratz, 539 U.S. at 304-05
(Ginsburg, J., dissenting). Obscurity, after all, is the
only way a university could navigate Grutter’s Del-
 22
phic instructions. How else could a school seek a
“critical mass” of racial minorities without seeking
“‘some specified percentage’”? 539 U.S. at 329-30. Or
make race “‘outcome determinative’” for minorities
without making it the “defining feature” of their ap-
plication? Id. at 337-39.

The only way to test whether universities’ ob-

scure policies satisfy Grutter’s vague boundaries is
through “prolong[ed]” litigation, id. at 348 (Scalia, J.,
concurring in part and dissenting in part)—an in-
creasingly unrealistic option. This case alone has re-
quired nearly seven years of expensive, cumbersome
litigation. A few individual applicants (like Allan
Bakke, Jennifer Gratz, Barbara Grutter, and Abigail
Fisher) have brought these cases in the past. But in-
dividuals’ claims for prospective relief expire once
they graduate, and their claims for damages greatly
“narrow” the scope of judicial review. Fisher II, 136
S.Ct. at 2210. And nowadays, an individual plaintiff
would risk the unspeakable cruelty that Ms. Fisher
faced when she sued the University of Texas. See
Dkt.150-4, SFFA v. Harvard, No. 14-cv-14176 (D.
Mass. Apr. 29, 2016) (documenting the threats, in-
sults, and harassment). These costs make narrow
tailoring an illusory check on universities’ use of
race.

In addition to these “jurisprudential consequenc-

es,” Grutter has had significant “real-world conse-
quences.” Ramos, 140 S.Ct. at 1415 (Kavanaugh, J.,
concurring in part). Most acutely, Grutter sustains
admissions programs that intentionally discriminate
against historically oppressed minorities. Jewish
 23
students were the first victims of holistic admissions,
and Asian Americans are the main victims today.
Asians have faced enormous racial discrimination in
this country, from the Chinese Exclusion Act, to the
internment of Japanese Americans, to modern
scapegoating over COVID-19. Weybright, Study
Finds Increasing Discrimination Against Asians and
Asian Americans, WSU Insider (Nov. 4, 2020),
bit.ly/39rc9YI. Every day, Asian Americans are ste-
reotyped as shy, passive, perpetual foreigners, and
model minorities who are interested only in math
and science. Harvard Pet’n 30-31.

By considering race alongside subjective criteria,

universities invite admissions officers to rely on anti-
Asian stereotypes. These subjective criteria also con-
ceal unspoken ceilings on Asian-American admis-
sions. The disparities that Asian Americans face
compared to their white peers are so stark that,
when SFFA showed the data to a high-school counse-
lor in Harvard, she started crying in her deposition.
See Dkt.414-3 at 150-55, Harvard, No. 14-cv-14176
(D. Mass. June 15, 2018) (explaining that she was
crying “[b]ecause these numbers make it seem like
there’s discrimination, and I love these kids and I
know how hard they work”).

This discrimination is not news to Asian-

American high-schoolers: An entire industry exists to
help them appear “less Asian” on their college appli-
cations; and the unlevel playing field contributes to
their unusually high levels of anxiety, depression,
and suicide. Harvard Pet’n 31. These ongoing “ef-
fects,” combined with the “racist origins” of holistic
 24
admissions, “strongly support overruling” Grutter.
Ramos, 140 S.Ct. at 1417 (Kavanaugh, J., concurring
in part); see Harvard Pet’n 4-5.

More broadly, Grutter tells universities that it’s

okay to treat students differently based on race—a
legal imprimatur with well-known repercussions.
Racial preferences, this Court has explained, are poi-
sonous. They “stimulate our society’s latent race con-
sciousness,” “delay the time when race will become
… truly irrelevant,” and “perpetuat[e] the very racial
divisions the polity seeks to transcend.” Shaw v. Re-
no, 509 U.S. 630, 643 (1993); Adarand, 515 U.S. at
227-29; Schuette, 572 U.S. at 308 (plurality).

These repercussions are precisely what has re-

verberated in Grutter’s wake. Far from pursuing “‘in-
tegration of [their] classrooms and residence halls,’”
Grutter Resp’ts’ Br. 5, universities are now openly
embracing segregation—encouraging race-specific
graduations, housing, orientations, networking, and
more. Pierre, Demands for Segregated Housing at
Williams College Are Not News, NAS (May 8, 2019),
bit.ly/2KasdoS. And their obsession with race has
impeded their progress toward Grutter’s true aim:
obtaining a diversity of viewpoints. 539 U.S. at 330;
see Haidt, Viewpoint Diversity in the Academy,
bit.ly/2LOGnfM; Stiksma, Understanding the Cam-
pus Expression Climate: Fall 2019, bit.ly/2XJN45v.
One of the biggest obstacles to achieving Grutter’s
aims, it seems, is Grutter itself.
 25
C. Grutter has generated no legitimate re-
liance interests.
Grutter cannot be sustained in the name of reli-
ance interests. This Court puts little stock in reliance
interests when it overrules precedents, like Grutter,
that authorize racial classifications. E.g., Smith v.
Allwright, 321 U.S. 649, 665 (1944) (overruling Grov-
ey v. Townsend); Batson v. Kentucky, 476 U.S. 79, 95-
96 (1986) (overruling Swain v. Alabama); Trump v.
Hawaii, 138 S.Ct. 2392, 2423 (2018) (overruling Ko-
rematsu). Reliance interests did not deter the Court
from dismantling segregation, even though it recog-
nized Brown’s “wide applicability” and the “consider-
able complexity” of enforcement. 347 U.S. at 495.

That’s because no one has a legitimate interest in

treating people differently based on their skin color—
and certainly not an interest that could “outweigh
the interest we all share in the preservation of our
constitutionally promised liberties.” Ramos, 140
S.Ct. at 1408. When a decision of this Court “under-
mines the fundamental principle of equal protection
as a personal right,” it is “the principle,” not the deci-
sion, that “must prevail.” Adarand, 515 U.S. at 235
(opinion of O’Connor, J.).

Because Grutter departs so far from our basic

ideals, the decision has not “‘become part of our na-
tional culture.’” Ramos, 140 S.Ct. at 1406. Grutter “is
only two decades old”—a lack of “antiquity” that
“cut[s] in favor of abandoning [it].” Montejo v. Louisi-
ana, 556 U.S. 778, 793 (2009). And most Americans
believe that colleges and universities should not con-
sider race at all when making admissions decisions
 26
(73%), including strong majorities of African-
Americans (62%) and Hispanics (65%). Graf, Most
Americans Say Colleges Should Not Consider Race or
Ethnicity in Admissions, Pew (Feb. 25, 2019),
pewrsr.ch/2Xq43K0. Several States have expressly
banned their universities from considering race—
including the State that prevailed in Grutter.
Schuette, 572 U.S. at 298-99. California, too, has long
prohibited racial preferences. In 2020, despite an ex-
pensive and visible campaign to reinstate racial pref-
erences, Californians voted by double digits to retain
their ban. Ting, ‘They Lost Partly Because of That
Ad’: How No on Prop. 16 Organizers Knew the Meas-
ure Would Fail, SF Gate (Dec. 2, 2020),
bit.ly/2XBrmAZ.

Among this Court’s precedents, Grutter has a

uniquely weak claim to reliance interests because
“the opinion contains its own self-destruct mecha-
nism.” 539 U.S. at 394 (Kennedy, J., dissenting).
Grutter concludes with a warning that the Court ex-
pects “racial preferences will no longer be necessary”
in “25 years.” Id. at 343 (majority); accord id. at 350-
51 (Thomas, J., concurring in part and dissenting in
part). While this 2028 end date was somewhat arbi-
trary, the principle underlying it was not. “[A]ll race-
conscious admissions programs” must have “a termi-
nation point,” Grutter stressed, to ensure that their
“‘deviation from the norm of equal treatment’” serves
“‘the goal of equality itself.’” Id. at 342 (majority)
(quoting Croson, 488 U.S. at 510). The “‘acid test of
their justification,’” Grutter noted, is “their efficacy in
eliminating the need for any racial or ethnic prefer-
ences at all.’” Id. at 343.
 27
If Grutter is right—if all race-based admissions
must end and universities must decrease their reli-
ance on race over time—then Grutter cannot create
meaningful reliance interests. Anyone treating Grut-
ter as a permanent blessing of race-based admissions
is failing to heed the opinion itself. No one should be
structuring affairs around a practice that federal law
“barely—and only provisionally—permits.” Schuette,
572 U.S. at 317 (Scalia, J., concurring in the judg-
ment).

While overturning Grutter will mean that uni-

versities can no longer use race in admissions, the
burden of changing illegal policies “‘is not a compel-
ling interest for stare decisis.’” Janus, 138 S.Ct. at
2485 n.27. And the changes here need not be “‘exten-
sive.’” Id. Most universities “can keep their [admis-
sions] systems exactly as they are”—with holistic,
individualized review that considers all legitimate
factors—“only they cannot” use race itself as a factor.
Id. Real diversity would not decline (and would likely
improve), given the availability of race-neutral alter-
natives. The University of California, for example,
boasts that it just admitted its “most diverse class
ever,” despite the State’s ban on racial preferences.
Watanabe, UC Admits Largest, Most Diverse Class
Ever, But It Was Harder to Get Accepted, L.A. Times
(July 19, 2021), https://lat.ms/3Cn77JZ. So too did
the University of Michigan, whose 2021 incoming
class “is among the university’s most racially and
ethnically diverse classes” ever, with “37% of first-
year students identifying as persons of color.” Dodge,
Largest Ever Student Body at University of Michigan
 28
This Fall, Officials Say, MLive.com (Oct. 22, 2021),
bit.ly/3EgLAD2.

Nor would overturning Grutter upset any reli-

ance interests of students. Prospective students do
not “rely” on getting preferences tied to their race—
something they cannot control. And no admitted stu-
dent would be affected by SFFA’s forward-looking
relief. As for current students, ending racial prefer-
ences will take time, even in this case. Hardly any-
one on campus now will still be there when the first
class admitted without racial preferences arrives.

* * *
This case presents a unique opportunity to recti-
fy Grutter’s error. Paired with Harvard, this case will
allow the Court to resolve the ongoing validity of
race-based admissions under both Title VI and the
Constitution—in cases involving our nation’s first
public college and first private college, brought by
the same plaintiff, and with trial records that are ex-
tensive and fully developed over more than a decade
of combined litigation. Now is the time to “stop dis-
crimination on the basis of race” by “stop[ping] dis-
crimination on the basis of race.” Parents Involved,
551 U.S. at 748.

II. The Court should also grant certiorari to

consider whether UNC’s admissions pro-
gram satisfies strict scrutiny.
This Court should also review whether UNC is
complying with existing precedent. If Grutter is over-
ruled, then this Court will benefit from detailed
 29
briefing on the race-neutral alternatives available to
UNC. Because those alternatives are available to
many schools, briefing this question will help the
Court assess what a post-Grutter world would look
like and why Grutter’s departure from racial neutral-
ity is wholly unjustified. If Grutter is clarified or nar-
rowed, then the lower courts would benefit from this
Court’s application of strict scrutiny here—an analy-
sis that this Court performed in Gratz without wait-
ing for the circuit court’s judgment.

Under this Court’s precedents, UNC’s admissions

program must withstand strict scrutiny. Its use of
race must be “narrowly tailored” to achieve “the only
interest that this Court has approved in this con-
text”: the educational benefits of “student body diver-
sity.” Fisher I, 570 U.S. at 314-15. To be narrowly
tailored, race-based admissions must be “‘necessary’”
to achieving those educational benefits. Id. at 312.
Race is not necessary if a “workable race-neutral al-
ternative[]” is available—i.e., if the university “could
achieve sufficient diversity without using racial clas-
sifications.” Id.

UNC has workable race-neutral alternatives. For

example, it could set aside 750 seats in the class for
disadvantaged applicants and fill the rest of the class
with the most academically qualified students.
App.134 n.43. This alternative would increase socio-
economic diversity while maintaining racial diversity
and academic excellence. App.134 n.43; D.C.Dkt.244
at 443:13-448:20; Dkt.247-2 at 23. Other alterna-
tives, such as admitting the top academic performers
in each North Carolina high school, produce similar
 30
results. App.138-41; see also D.C.Dkt.244 at 424:1-
450:4; D.C.Dkt.247-2 at 13-23.

Still more successful alternatives have been used

by public universities in States where racial prefer-
ences are banned (such as UC-Berkeley and UCLA).
These universities have, for example, increased soci-
oeconomic preferences; increased financial aid;
adopted policies promoting geographic diversity, in-
cluding percentage plans and the use of zip codes;
eliminated preferences for legacies; eliminated pref-
erences for children of faculty and staff; eliminated
early action; increased recruitment efforts; increased
admission of community college transfers; and devel-
oped partnerships with disadvantaged high schools.
See D.C.Dkt.244 at 412:22-417:4-13, 449:10-450:4.
Those institutions remain elite and, by their telling,
diverse. See supra I.C.

In concluding that UNC must continue using

race, the district court applied strict scrutiny in
name only. Like the First Circuit in Harvard, the
district court rejected race-neutral alternatives be-
cause they would meaningfully change UNC’s “‘actu-
al’” outcomes. App.126, 143-44. But the government
cannot distribute benefits and burdens based on
race—the most odious classification known to Ameri-
can law—because race neutrality would cause a pub-
lic institution to change. Desegregation required rad-
ical changes, but those real and threatened conse-
quences did not deter this Court from enforcing the
Constitution’s demands. E.g., Allen v. Cty. Sch. Bd.
of Prince Edward Cty., 249 F.2d 462, 465 (4th Cir.
1957) (that “the schools might be closed” could not
 31
justify continued segregation); Washington v. Lee,
263 F. Supp. 327, 331 (M.D. Ala. 1966) (“no consider-
ation of prison security or discipline” could justify
continued segregation of Alabama penal facilities),
aff’d, 390 U.S. 333 (1968).

The question is not whether race-neutral alter-

natives will change an institution, or whether the
university finds them painful or philosophically disa-
greeable. The question is whether race-neutral alter-
natives “‘could promote the substantial interest
about as well and at tolerable administrative ex-
pense.’” Fisher I, 570 U.S. at 311-12. The substantial
interest here is broad student-body diversity, not
“‘racial diversity.’” Id. So the district court was wrong
to reject alternatives because they would require
UNC to admit, for example, fewer minority students
from wealthier families, App.131-32; more white stu-
dents from poorer families, App.136-37; slightly few-
er unrepresented minorities, App.134 & n.43, 139-40;
or 0.5% Native Americans instead of 1.8%, App.139;
D.C.Dkt.251-1 at 38; D.C.Dkt.154-22, Ex. 11, Tbl.1.
UNC would have to prove that these minor changes
would prevent it from achieving student-body diversi-
ty writ large. That robust evidentiary showing was
not made here, and couldn’t possibly be made if the
district court was right that race plays only a minor
role at UNC. Cf. App.112-13, 175. That universities
in California and Michigan are more racially diverse
than ever before means that the evidence UNC needs
almost certainly doesn’t exist.

While this Court’s precedents do not require uni-

versities to tolerate a “dramatic sacrifice” of diversity
 32
or academic excellence, UNC is not being asked to
make any dramatic sacrifices. Grutter, 539 U.S. at
340. UNC is not being asked to, for example, admit
students through a lottery. See id. Nor is UNC being
asked to “abandon … academic selectivity.” Id.
Schools can remain elite while tolerating a dip in
SAT scores. Cf. App.134 & n.43, 139-40. Concluding
otherwise is particularly odd given the fact that
many high-quality schools are abandoning this met-
ric. See University of California Will No Longer Con-
sider SAT and ACT Scores, N.Y. Times (May 15,
2021), nyti.ms/3ojysqv (noting that “[m]ore than half
of the country’s four-year colleges and universities
dismissed the ACT or SAT for fall 2021 admission[,]
including top universities like Brown, Caltech, Car-
negie Mellon, Columbia, the University of Virginia
and Yale”). Indeed, UNC itself is perfectly willing to
sacrifice this metric to meet its racial goals. App.48,
73-78; Dkt.247.1 at 12, 15. In all events, slight dips
in average SAT scores are a small price to pay in
service of ending state-sanctioned discrimination
against high schoolers based on race.

CONCLUSION
This Court should grant certiorari.
 33
Alan Ruley Thomas R. McCarthy
BELL, DAVIS & PITT, P.A. Counsel of Record
P.O Box 21029 William S. Consovoy
Winston-Salem, NC 27120 J. Michael Connolly
(336) 714-4147 Bryan Weir
Cameron T. Norris
James F. Hasson
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
(703) 243-9423
[email protected]

Patrick Strawbridge
CONSOVOY MCCARTHY PLLC
Ten Post Office Square
8th Floor South PMB #706
Boston, MA 02109
(617) 227-0548

November 11, 2021 Attorneys for Petitioner