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Supreme Court of the United States No. 11-345 IN THE Supreme Court of the United States ABIGAIL NOEL FISHER, Petitioner, v. UNIVERSITY OF TEXAS AT AUSTIN, et al., Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF OF AMICUS CURIAE UNITED NEGRO COLLEGE FUND IN SUPPORT OF RESPONDENTS DESIREÉ C. BOYKIN DAVID E. SCHWARTZ Interim General Counsel Counsel of Record SHED JESSUP RICHARD W. KIDD Of Counsel KARIS A. GONG MELINDA M. HIGHTOWER UNITED NEGRO DAVID C. SHOCKLEY COLLEGE FUND 8260 Willow Oaks MADELINE STAVIS Corporate Drive SKADDEN, ARPS, SLATE, Fairfax, VA 22031 MEAGHER & FLOM LLP Four Times Square New York, NY 10036-6522 (212) 735-3000 [email protected] Counsel for Amici Curiae 243189 A (800) 274-3321 • (800) 359-6859 i TABLE OF CONTENTS Page TABLE OF CONTENTS . i TABLE OF CITED AUTHORITIES . iv INTEREST OF AMICUS CURIAE . 1 SUMMARY OF ARGUMENT . 4 ARGUMENT. 7 IT IS NOT IN THE NATION’S INTEREST TO END RACE-CONSCIOUS ADMISSIONS IN HIGHER EDUCATION . 7 A. THE EFFECTS OF STATE-SPONSORED DISCRIMINATION ARE NOT MERE HISTORICAL FOOTNOTES. 7 1. A Brief History of State-Sponsored Discrimination Against African Americans . 7 2. Lingering Effects of Discrimination: Inferior Primary and Secondary Schools . 9 3. Lingering Effects of Discrimination: Underrepresentation in Government And Military Leadership Positions . 12 ii Table of Contents Page 4. Lingering Effects of Discrimination: Underrepresentation in Key Private Sector Leadership Positions . 14 5. Lingering Effects of Discrimination: Underrepresentation in Academia . 15 6. Lingering Effects of Discrimination: Underrepresentation in White-Collar Jobs . 17 B. T H E R A M I F I C A T I O N S OF ELIMINATING RACE- CONSCIOUS DECISION MAKING IN HIGHER EDUCATION ARE SIGNIFICANT . 19 1. Eliminating Race-Conscious Decision Making Will Decrease Student Body Diversity. 19 2. Eliminating Race-Conscious Decision Making Will Have Negative Consequences for the Nation . 24 3. Race-Conscious Decision Making Positively Impacts Today’s Students and Future Generations . 28 iii Table of Contents Page C. “TOP X PERCENT” LAWS ARE INADEQUATE. 30 1. In States That Prohibit Race-Conscious Decision Making in Higher Education, The “Top X Percent” Laws Do Not Achieve the Compelling Interest of Student-Body Diversity . 30 2. “Top X Percent” Laws Encourage Continued High School Segregation and Are an Inefficient Way to Achieve Diversity . 33 3. Consideration of Race is Necessary to Achieve Educational Diversity . 34 CONCLUSION . 38 iv TABLE OF CITED AUTHORITIES Page CASES Brown v. Board of Education, 347 U.S. 483 (1954) . 4, 9 Fisher v. University of Texas, 631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S. Ct. 1536 (2012) . 35, 36, 38 Florida ex rel. Hawkins v. Board of Control, 350 U.S. 413 (1956) . 9 Gratz v. Bollinger, 539 U.S. 244 (2003) . 34 Grutter v. Bollinger, 539 U.S. 306 (2003) . passim Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), abrogated by Grutter v. Bollinger, 539 U.S. 306 (2003). 21 Lucy v. Adams, 350 U.S. 1 (1955) . 9 Meredith v. Fair, 305 F.2d 343 (5th Cir. 1962) . 9 Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) . 4 v Cited Authorities Page Plyler v. Doe, 457 U.S. 202 (1982) . 4 Regents of University of California v. Bakke, 438 U.S. 265 (1978) . passim United States v. Fordice, 505 U.S. 717 (1992) . 9 STATUTES AND RULES Supreme Court Rule 37.3(a). 1 Fla. Admin. Code r. 6C-6.0029(c)(5) (2112) . 30 Fla. Exec. Order No. 99-281 (Nov. 9, 1999) . 31 OTHER AUTHORITIES 1 MICHAEL T. NETTLES & LAURA W. P ERNA, THE A FRICAN AMERICAN EDUCATION DATA BOOK (1997). 11 1992 Census of Government – Popularly Elected Offi cials, Bureau of the Census (1995. 13 2 ABC-CLIO, PHILANTHROPY IN AMERICA: A COMPREHENSIVE HISTORICAL ENCYCLOPEDIA 480 (Dwight F. Burlingame ed., 2004). 3 vi Cited Authorities Page ABA, Lawyer Demographics, http://www. americanbar.org/content/dam/aba/migrated/ marketresearch/PublicDocuments/lawyer_ demographics_2012_revised.authcheckdam. pdf . 18 ABA, Standing Committee on Judicial Independence: National Database on Judicial Diversity in State Courts, http://apps.americanbar.org/abanet/ jd/display/national.cfm . 13 ABA, Legal Education Statistics from ABA- Approved Law Schools, Law School Staff by Gender and Ethnicity (Mar. 6, 2012), available at http://www.americanbar.org/content/dam/ aba/administrative/legal_education_and_ admissions_to_the_bar/statistics/ls_staff_ gender_ethn.authcheckdam.pdf . 16 ALLIANCE FOR BOARD DIVERSITY, MISSING PIECES: WOMEN AND MINORITIES ON FORTUNE 500 BOARDS (2011), available at http://theabd.org/Missing_ Pieces_Women_and_Minorities_on_Fortune_ 500_Boards.pdf . 14, 15 Almanac of Higher Education 2011: Enrollment by Race of Students and Type of Institution, CHRONICLE OF HIGHER EDUCATION, Aug. 26, 2011 . 11 vii Cited Authorities Page Almanac of Higher Education 2011: Who are the Undergraduates?, CHRONICLE OF HIGHER EDUCATION, Aug. 26, 2011 . 5 AMA, PHYSICIAN CHARACTERISTICS AND DISTRIBUTION IN THE US (2012) . 18 ASSOCIATION TO ADVANCE COLLEGIATE SCHOOLS OF BUSINESS (AACSB), BUSINESS SCHOOL DATA TRENDS AND 2012 LIST OF ACCREDITED SCHOOLS 31 (2012), available at http://www.aacsb. edu/publications/businesseducation/2012 -Data-Trends.pdf. 17 ASSOCIATION TO ADVANCE COLLEGIATE SCHOOLS OF BUSINESS (AACSB), FACULTY ETHNICITY – TOP 50 SCHOOLS (2012) (on fi le with author) . 17 ASSOCIATION OF AMERICAN MEDICAL COLLEGES, STRIVING TOWARD EXCELLENCE: FACULTY DIVERSITY IN M EDICAL EDUCATION 1 (2009), available at https:// members.aamc.org/eweb/upload/Striving%20 Towards%20Excellect%20Faculty%20 Diversity%20in%20Med%20Ed.pdf . 17 Ben Backes, Do Affirmative Action Bans Lower Minority College Enrollment and Attainment? Evidence from Statewide Bans, 47 J. HUMAN RESOURCES 435 (2012) . 31 viii Cited Authorities Page Sandy Baum, Jennifer Ma & Kathleen Payea, Education Pays 2010: The Benefi ts of Higher Education for Individuals and Society (CollegeBoard Advocacy & Policy Ctr. Trends in Higher Educ. Series, 2010), available at http://trends.collegeboard.org/downloads/ Education_Pays_2010.pdf . 5 Press Release, Bill & Melinda Gates Foundation, Gates Millennium Scholars Program to Announce Inaugural Class of Gates Millennium Scholars (June 1, 2000), http://www.gatesfoundation.org/ press-releases/pages/inaugural-class-of-gates -millennium-scholars-000601.aspx . 2 David A. Bositis, Resegregation in Southern Politics?, Research Brief, JOINT CTR. FOR POLITICAL & ECON. STUDIES (Nov. 2011), available at http://www.jointcenter.org/sites/default/ fi les/upload/research/fi les/Resegregation%20 in%20Southern%20Politics.pdf . 12 Nicholas A. Bowman, College Diversity Experiences and Cognitive Development: A Meta-Analysis, 80 REV. EDUC. RES. 4 (2010) . 23 Dominic J. Brewer, Eric R. Eide & Ronald G. Eherenberg, Does it Pay to Atten d an Elite Pr ivate College? Cross-Cohort Evidence on the Effects of College Type on Earnings, 34 J. HUMAN RES. 104 (1999) . 28 ix Cited Authorities Page David Card & Alan B. Krueger, Would the Elimination of Affirmative Action Affect Highly Qualified Minority Applicants? Evidence from California and Texas, 58 INDUS. & LAB. REL. REV. 416 (2005) . 21 David A. Carter, Frank D’Souza, Betty J. Simkins & W. Gary Simpson, The Gender and Ethnic Diversity of US Boards and Board Committees and Firm Financial Performance, 18 CORP. GOVERNANCE 396 (2010) . 14 David L. Chambers, Richard O. Lempert & Terry K. Adams, Michigan’s Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395, 502-03 (2000) . 29 CHILDREN’S DEFENSE FUND, PROGRESS AND PERIL: BLACK CHILDREN IN AMERICA (1993), available at http://diglib.lib.utk.edu/cdf/data/0116_000050_ 000286/0116_000050_000286.pdf . 11 Congressional Demographics: Ethnicity, CONGRESS. COM, http://www.congress.org/congressorg/ directory/demographics.tt?catid=ethnic (last visited Aug. 8, 2012) . 12 Kalena E. Cortes, Do bans on affirmative action hurt minority students? Evidence from the Texas Top 10% Plan, 29 ECON. OF EDUC. REV. 1110 (2010) . 28 x Cited Authorities Page Faye J. Crosby, Aarti Iyer, Susan Clayton, & Roberta A. Downing, Affirmative Action: Psychological Data and the Policy Debates, 58 AM. PSYCHOLOGIST 93 (2003). 23 Julie Berry Cullen, Mark C. Long, and Randall Reback, Jockeying for Position: Strategic High School Choice Under Texas’ Top Ten Percent Plan, (National Bureau of Economic Research, Working Paper No. 16663 2011), available at http:// www.nber.org/papers/w16663.pdf. 33, 34 Stacy Berg Dale & Alan B. Krueger, Estimating the Payoff to Attending a More Selective College: An Application of Selection on Observables and Unobservables (National Bureau of Economic Research, Working Paper No. 7322, 1999) available at http://www. nber.org/papers/w7322.pdf . 29 CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR & JESSICA C. SMITH, U.S. CENSUS BUREAU, INCOME POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2010 (2011), available at http:// www.census.gov/prod/2011pubs/p60-239.pdf . 18 Nida Denson & Mitchell J. Chang, Racial Diversity Matters: The Impact of Diversity-Related Student Engagement and Institutional Context, 46 AM. EDUC. RES. J. 322 (2008). 23 xi Cited Authorities Page Nida Denson & Shirley Zhang, The Impact of Student Experiences with Diversity on Developing Graduate Attributes, 35 STUD. HIGHER EDUC. 529 (2010). 23 Lisa M. Dickson, Does Ending Affi rmative Action in College Admissions Lower the Percent of Minority Students Applying to College? 25 ECON. EDUC. REV. 109 (2006) . 22 Directory of Latino Elected Officials, NALEO
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