No.

23-170

In the Supreme Court of the United States

__________
COALITION FOR TJ,
Petitioner,
v.

FAIRFAX COUNTY SCHOOL BOARD,

Respondent.
__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit
__________
BRIEF OF THE CATO INSTITUTE AS AMICUS
CURIAE IN SUPPORT OF PETITIONER
__________

Anastasia P. Boden
Counsel of Record
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, DC 20001
(202) 216-1414
[email protected]

September 20, 2023

 i

QUESTION PRESENTED
The question presented is whether public schools
can avoid the Equal Protection Clause’s prohibition on
racial discrimination in student admissions through
purportedly race-neutral schemes.
 ii

TABLE OF CONTENTS
QUESTION PRESENTED ........................................... i
TABLE OF AUTHORITIES ....................................... iii
INTEREST OF AMICUS CURIAE ............................. 1
SUMMARY OF ARGUMENT ..................................... 2
ARGUMENT ................................................................ 3
I. THIS COURT SHOULD GRANT
CERTIORARI TO PREVENT THE
GOVERNMENT FROM ENGAGING
IN COVERT DISCRIMINATION..................... 3
A. Prominent public university
officials have urged universities to
hide their racial preferences. ...................... 4
B. University presidents across the
nation have issued statements
indicating their desire to subvert
SFFA. ......................................................... 10
C. Government officials—from state
governors to President Biden—are
encouraging universities to evade
the law. ....................................................... 14
CONCLUSION .......................................................... 19
 iii

TABLE OF AUTHORITIES
Page(s)
Cases
Cooper v. Aaron, 358 U.S. 1 (1958) ............................. 4
Cummings v. Missouri, 71 U.S. 277 (1867) ................ 4
Smith v. Texas, 311 U.S. 128 (1940) ........................... 4
Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll., 143
S. Ct. 2141 (2023) ........................................... 3, 4, 11
Other Authorities
About Us, THE ASS’N OF AM. L. SCHS. (last
visited Sept. 14, 2023) .............................................. 4
Alexander Hall, Dean caught saying Berkeley
Law uses ‘unstated affirmative action:’ ‘I’m
going to deny I said this’ FOX NEWS (June
30, 2023, 9:37 PM).............................................. 9, 10
Announcement, Columbia University in the
City of New York, Columbia Issues
Statement on Affirmative Action Cases
(July 5, 2023) .......................................................... 13
Assn. Am. L. Schs., AALS Conference on
Affirmative Action, Welcome & Panel 1,
YOUTUBE (Aug. 2, 2023) ....................................... 4, 6
Assn. Am. L. Schs., AALS Conference on
Affirmative Action: Panel 3, YOUTUBE (Aug.
2, 2023), ........................................................ 6, 7, 8, 9
Erin Wilcox, Parents sue to stop
discriminatory admissions at top-ranked
high school, THE HILL (Mar. 10, 2021) .................... 2
 iv

Heather Mac Donald, California passed an

anti-affirmative action law, and colleges
ignored it, N.Y. POST (Sep. 1, 2018, 12:15
PM) ............................................................... 5, 13, 14
Jay Caspian Kang, The Sad Death of
Affirmative Action, THE NEW YORKER (Nov.
4, 2022) ..................................................................... 5
John Yoo & Erin Wilcox, If Supreme Court
ends affirmative action in higher education,
here’s what the left could try next, FOX
NEWS (Oct. 28, 2022, 5:00 AM) .............................. 14
Liam Knox, Prompting Discussion or
Tempting Litigation, INSIDE HIGHER ED
(July 20, 2023) .................................................. 11, 12
Nick Reisman, New York reacts to top court’s
affirmative action ruling, SPECTRUM LOC.
NEWS (June 29, 2023) ...................................... 16, 17
President Joe Biden, Remarks by President
Biden on the Supreme Court’s Decision on
Affirmative Action (June 29, 2023) ................. 17, 18
Press Release, FACT SHEET: President
Biden Announces Actions to Promote
Educational Opportunity and Diversity in
Colleges and Universities (June 29, 2023) ............ 19
Press Release, John B. King, Jr., Chancellor,
State University of New York, Chancellor
King and SUNY Board of Trustees on
SCOTUS Decision on Race Conscious
Admissions Cases (June 29, 2023) .................. 12, 13
Press Release, Maura Healey, Governor,
Commonwealth of Massachusetts, Healey-
Driscoll Administration Releases Joint
 v

Statement in Response to Supreme Court

Decision on Race-Based Admissions (June
29, 2023) ................................................................. 16
Statement, Gavin Newsom, Governor, State
of California, Governor Newsom Condemns
Supreme Court’s Majority Opinion on
Affirmative Action (June 29, 2023) ................. 14, 15
Statement, Jay Inslee, Governor, State of
Washington, Inslee statement on SCOTUS
ruling gutting affirmative action (June 29,
2023) ....................................................................... 15
Statement, Lawrence Bacow, President,
Harvard University, Supreme Court
Decision (June 29, 2023) .................................. 10, 11
Statement, Peter Salovey, President, Yale
University, Supreme Court Decisions
Regarding Admissions in Higher Education
(June 23, 2023) ....................................................... 12
Statement, Phil Murphy, Governor, State of
New Jersey, Statement from Governor
Murphy on the U.S. Supreme Court
Decision on Affirmative Action (June 29,
2023) ....................................................................... 16
 1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy
research foundation founded in 1977 and dedicated to
advancing the principles of individual liberty, free
markets, and limited government. Cato’s Robert A.
Levy Center for Constitutional Studies was
established in 1989 to promote the principles of limited
constitutional government that are the foundation of
liberty. Toward those ends, Cato publishes books and
studies, conducts conferences, produces the annual
Cato Supreme Court Review, and files amicus briefs.
This case interests Cato because it concerns
government treating people as members of racial
groups rather than as individuals, as is required by the
Fourteenth Amendment.

1 Rule 37 statement: All parties were timely notified of the

filing of this brief. No part of this brief was authored by any
party’s counsel, and no person or entity other than amicus funded
its preparation or submission.
 2

SUMMARY OF ARGUMENT
Thomas Jefferson High School for Science and
Technology—known to students, parents, and alumni
as TJ—showcases the continuing viability of the
American Dream. TJ is the top-ranked public high
school in the nation and a magnet school for gifted
STEM students in Northern Virginia. With a student
body that is 79% minority (including a large number of
students from immigrant backgrounds), TJ is a
testament to America as a land of opportunity for
everyone.2
According to government statistics, in 2020 73% of
TJ’s admitted students were classified as Asian
American. Yet this label fails to capture the rich
diversity of TJ’s Asian American students, who come
from families representing at least thirty different
countries, each with unique cultures, languages, and
traditions.3
In the spring of 2020, the Fairfax County School
Board decided that TJ’s student body did not reflect
the “right kind” of diversity. To that end, the Board
drastically overhauled TJ’s admissions scheme.
Throughout the process, the Board stated explicitly on
many occasions that its goal was to change the racial
composition of the school. Pet. at 7–9. And the Board
succeeded in its goal, reducing the percentage of Asian
students admitted to TJ from 73% to 54%. Pet. at 10.

2 Erin Wilcox, Parents sue to stop discriminatory admissions

at top-ranked high school, THE HILL (Mar. 10, 2021),

https://tinyurl.com/36v6rpf6.
3 Id.
 3

The racial motivation of the Board cannot seriously

be doubted. However, the final admissions plan the
Board adopted did not explicitly rely on race, but
resorted to “race-neutral” proxies to accomplish the
Board’s racial goal.
In Students for Fair Admissions, Inc. v. President
& Fellows of Harvard College, this Court
unambiguously held that the Constitution’s Equal
Protection Clause does not permit public schools to
engage in racial balancing. 143 S. Ct. 2141
(2023)[hereinafter SFFA]. Furthermore, the Court
reaffirmed that when it comes to racial preferences,
“[W]hat cannot be done directly cannot be done
indirectly.” Id. at 2176.
Unfortunately, university administrators and
government officials throughout the country—
including multiple state governors and the President
of the United States—are openly signaling their intent
to subvert this Court’s decision and to continue racial
balancing, albeit covertly. The Court should grant
certiorari to prevent further violations of the
Fourteenth Amendment’s promise of equality before
the law.
ARGUMENT
I. THIS COURT SHOULD GRANT CERTIORARI
TO PREVENT THE GOVERNMENT FROM
ENGAGING IN COVERT DISCRIMINATION.
Multiple university administrators, K–12 schools,
governors, and even the President have signaled their
intent to drive racial preferences underground so they
cannot be detected. In Cooper v. Aaron, this Court held
that “the constitutional rights of children not to be
discriminated against in school admission on grounds
 4

of race . . . can neither be nullified openly and directly

. . . nor nullified indirectly . . through evasive schemes
. . . whether attempted ‘ingeniously or ingenuously.’”
358 U.S. 1, 17 (1958) (quoting Smith v. Texas, 311 U.S.
128, 132 (1940)). SFFA affirmed the same principle:
“[W]hat cannot be done directly cannot be done
indirectly . . . the prohibition against racial
discrimination is ‘levelled against the thing, not the
name.’” SFFA, 143 S. Ct. at 2176 (quoting Cummings
v. Missouri, 71 U.S. 277, 325 (1867)). This Court
should grant review to make clear that proxies for race
that result in unequal treatment are just as
impermissible as overt preferences.
A. Prominent public university officials have
urged universities to hide their racial
preferences.
The Association of American Law Schools (AALS)
boasts on its website that it is a “nonprofit association
of 176 member and 18 fee-paid law schools. Its
members enroll most of the nation’s law students[.]”4
On July 10, 2023, less than two weeks after the Court’s
ruling in SFFA, the AALS held a “Conference on
Affirmative Action.” The purpose of this conference
was, in the words of conference host Dean Erwin
Chemerinsky, “to help each other as we go forward to
achieve diversity without affirmative action.”5

4 About Us, THE ASS’N OF AM. L. SCHS.,

https://tinyurl.com/2p98a4xv (last visited Sept. 14, 2023).
5Assn. Am. L. Schs., AALS Conference on Affirmative Action,
Welcome & Panel 1, YOUTUBE (Aug. 2, 2023),
https://tinyurl.com/5ffx586w (at 8:34) [hereinafter Assn. Am. L.
Schs., Panel I].
 5

Erwin Chemerinsky is the dean of the University

of California, Berkeley School of Law. In November
2022, Chemerinsky told a reporter:
What colleges and universities will need to do
after affirmative action is eliminated is find
ways to achieve diversity that can’t be
documented as violating the Constitution. So
they can’t have any explicit use of race. They
have to make sure that their admissions
statistics don’t reveal any use of race. But they
can use proxies for race.6
During the AALS conference, Chemerinsky
continued to advocate for the use of proxies to achieve
racial goals, drawing on his own experiences in
California, where racial preferences in higher
education have been nominally prohibited since 1996.7
Said Chemerinsky:
So when I was at UC Irvine, we created a
program for college students from
disadvantaged backgrounds. A student in order
to qualify for this—it was a program—you had
to have a family income of twice the poverty
level or less. It overwhelmingly was enrolled by
students of color. But I think that that would be
permissible. We created a program for high

6 Jay Caspian Kang, The Sad Death of Affirmative Action, THE

NEW YORKER (Nov. 4, 2022) (emphasis added),

https://tinyurl.com/yc7mrnyc.
7 In reality, California’s universities have engaged in
“unrelenting resistance to the 1996 voter initiative, in every way
possible short of patent violation.” See Heather Mac Donald,
California passed an anti-affirmative action law, and colleges
ignored it, N.Y. POST (Sep. 1, 2018, 12:15 PM),
https://tinyurl.com/53bv7jey.
 6

school students targeting particular high

schools. Those high schools happened to be 99%
students of color. But the program was itself
facially race neutral.8
Chemerinsky was not the only AALS speaker to
support such policies. Vice President and General
Counsel for the University of Michigan Timothy Lynch
asked “How do we approach race-conscious but also
race-neutral means to achieve greater, or at least
protect, diversity gains?”9
Chemerinsky and Lynch both pointed specifically
to Thomas Jefferson High School as a potential model
for universities to follow in the wake of SFFA. Said
Chemerinsky:
One of the things that several of you just
referred to is, what about proxies that might
yield diversity? Tim, you were talking about the
Thomas Jefferson case out of the Fourth Circuit
that may be going to the Supreme Court. Some
of the questions that we got that were
submitted earlier this morning: the school has
a motive of having a more racially diverse
school body, but uses race-neutral means like
Texas’ six percent plan. Given the race-
conscious motive, would such a plan pass
constitutional muster? Another person wrote, if
a school uses a race-neutral criterion as a proxy
for race, and the school knows its use is to make
the school more racially diverse, must the

8 Assn. Am. L. Schs., Panel 1, supra, at 1:24:38.

9 Assn. Am. L. Schs., AALS Conference on Affirmative Action:
Panel 3, YOUTUBE (Aug. 2, 2023) (emphasis added),
https://tinyurl.com/ycxcyr59 (at 2:39).
 7

school genuinely value diversity with respect to

that criteria, e.g. zip code, and if not, isn’t that
likely to be labeled as pretextual?10
In his response, Vice President Lynch was frank about
the actions of the Fairfax County School Board:
In 2020 they made a decision to take race-
neutral means, but as a way to be race-
conscious about increasing diversity. So in
some ways akin to the Texas model they
decided to move away from feeder schools, by
creating percentages for various middle schools
in Northern Virginia. And as a result they did
increase diversity among African American,
Hispanic students. For Asian American
students, the numbers did decrease in some
ways. But so the question was—there was an
effort here to increase diversity. It did have an
impact on reducing the number of Asian
Americans, but the means were neutral.11
Lynch approved of this scheme and encouraged other
schools to adopt similar methods: “[I]n terms of what
law schools should be doing, they should be thinking
about the first statement [Chief Justice] Roberts
made, which is, trying to take opportunities to
increase diversity through race-neutral means.”12
When it comes to questions of race and
discrimination, the Court has long noted that the
government is not always forthcoming about its true
intentions. But interestingly, the school officials were

10 Id. at 6:52.
11 Id. at 8:40.
12 Id. at 10:12.
 8

candid that they would continue to pursue racial

balancing, the very thing forbidden by SFFA.
At the AALS affirmative action conference, Vice
President Lynch alluded to “racially conscious but also
race-neutral” approaches, acknowledging the Chief
Justice’s warning against “having a backdoor
approach.”13 In a highly revealing digression, Lynch
warned conference listeners to watch what they say,
lest the unconstitutional aims be made subject to
constitutional scrutiny:
Whatever you do, you should be aware right
now of the record you’re creating. The record
your faculty is creating. The more you have—
do law school faculty members, who generally
have a great understanding of the law,
sometimes speak in ways that does not reflect
the current state of the law? Well as a general
counsel at a university, I could only speculate
that that is possible. [Laughter] You all are
really the best understanders of the law in the
world. But what record are you creating? What
are your faculty saying in emails? What are
they saying in public? Because the Thomas
Jefferson case, as you see in the dissent—they
look for text messages, they look for anything
that could be used as evidence of discriminatory
intent.14
Lynch emphasized the importance of having a
“race-neutral” cover story for race-conscious policies:
[“T]he key question in terms of creating the record is,

13 Id. at 10:30.
14 Id. at 10:36.
 9

what can you say right now is the race-neutral

explanation for doing it? And how do you avoid having
your faculty muddy the record?”15 Chemerinsky
agreed:
That’s why I pretty much agree with Tim and
others who said, how this is presented becomes
so important. If it’s presented with strong race-
neutral justifications, I think it’s much more
likely to be allowed. And I think it’s very
important not to talk about it in terms of it
being an attempt to circumvent the decision. 16
While Chemerinsky emphasized the importance of
keeping the record clear of any statements indicating
a desire on the part of university officials to engage in
racial discrimination, this is easier said than done. In
June 2023, shortly before the AALS conference, video
surfaced of Chemerinsky admitting that UC Berkeley
Law School practices “unstated affirmative action,” at
least in faculty hiring.17 Chemerinsky frankly
explained the practice and how it is kept off the record:
What I mean by unstated affirmative action is,
what if the college or university doesn’t tell
anybody, doesn’t make any public statements,
but still wants to do it. I’ll give you an example
from our law school—but if ever I’m deposed I’m
going to deny I said this to you. When we do
faculty hiring, we’re quite conscious that
diversity is important to us. And we say
15 Id. at 12:41 (emphasis added).
16 Id. at 23:43 (emphasis added).
17 Alexander Hall, Dean caught saying Berkeley Law uses
‘unstated affirmative action:’ ‘I’m going to deny I said this’ FOX
NEWS (June 30, 2023, 9:37 PM) https://tinyurl.com/43krhnfr.
 10

diversity is important, it’s fine to say that. But,

I’m very careful when we have a faculty
appointments committee meeting. Any time
somebody says, you know, we should really
prefer this candidate over this candidate,
because this person would add to diversity—
don’t say that! You can think it, you can vote it,
but our discussions are not privileged, so don’t
ever articulate that that’s what you’re doing!18
Dean Chemerinsky and Vice President Lynch are
influential figures at two of the nation’s top public law
schools. This Court should grant cert to send the
message that it meant what it said in SFFA, and that
government actors may not thwart the Equal
Protection Clause by discriminating covertly.
B. University presidents across the nation
have issued statements indicating their
desire to subvert SFFA.
Harvard University, perhaps America’s most
famous institution of higher learning and one of the
parties whose admissions policies were struck down in
SFFA, issued a statement on the same day as the
Court’s decision.19 The statement, signed by Harvard
President Lawrence Bacow and many other Harvard
officials, clearly indicated Harvard’s displeasure with
the outcome in SFFA and demonstrated that rather
than giving up federal funding and freeing itself of its
obligations under Title VI, Harvard plans to continue

18 Id.
19 Statement, Lawrence Bacow, President, Harvard
University, Supreme Court Decision (June 29, 2023),
https://tinyurl.com/2j5dvm47.
 11

racially discriminatory admissions policies, but

covertly.
In what has become a common theme of several
universities’ public statements about SFFA, Harvard
officials singled out what they apparently viewed as a
potential loophole within the decision which would
permit Harvard to continue offering racial
preferences:
The Court also ruled that colleges and
universities may consider in admissions
decisions “an applicant’s discussion of how race
affected his or her life, be it through
discrimination, inspiration, or otherwise.” We
will certainly comply with the Court’s
decision.20
Harvard’s promise to “comply” was meant to be
tongue in cheek. But the president failed to
acknowledge the Court’s unambiguous and clear
statement that “universities may not simply establish
through application essays or other means the regime
we hold unlawful today.” SFFA, 143 S. Ct. at 2176.
In the wake of SFFA, Sarah Lawrence College
issued a new essay prompt asking how the decision
might impact the applicant’s life. As law professor
Anthony Kreis has noted, questions like this will
“disproportionately elicit responses from people about
their backgrounds as nonwhites, and I think that’s
really quite obviously the point.”21 But “[a]t the same
time, it’s vague and open enough that the college can

20 Id.
21Liam Knox, Prompting Discussion or Tempting Litigation,
INSIDE HIGHER ED (July 20, 2023), https://tinyurl.com/yuvw8vs8.
 12

quite easily point to it and say, ‘Well, anybody can offer

their viewpoints on this, no matter their
background.’”22
Yale University’s statement on SFFA similarly
indicated the school’s intent to stay the course. In his
statement, Yale President Peter Salovey not only
expressed his “strong disagreement with the Court’s
decisions,” he stated that “The Court’s decisions may
signal a new interpretation, but Yale’s core values will
not change.”23 Salovey made clear what he meant by
“core values”: “We will continue to foster diversity in
its many dimensions and will use all lawful means to
achieve it.”24
The State University of New York (SUNY) issued
an openly combative statement, beginning with the
accusation: “Today, the US Supreme Court attempted
to pull our nation backwards in the journey towards
equity and civil rights[.]”25 The statement struck a
defiant tone:
The commitment to diversity, equity, and
inclusion will continue to be a factor in every
goal we pursue, every program we create, every

22 Id.
23 Statement, Peter Salovey, President, Yale University,
Supreme Court Decisions Regarding Admissions in Higher
Education (June 23, 2023), https://tinyurl.com/3u67jkph.
24 Id.
25 Press Release, John B. King, Jr., Chancellor, State
University of New York, Chancellor King and SUNY Board of
Trustees on SCOTUS Decision on Race Conscious Admissions
Cases (June 29, 2023), https://tinyurl.com/45zy4xuh.
 13

policy we promulgate, and every decision we

make.26
Columbia University issued a more cautious
statement, saying:
We are reviewing the Supreme Court’s decision
and will refrain from commenting further until
we fully understand its implications. As we
prepare to comply with the law, our
commitment to our values is unwavering.
Diversity is a positive force across every
dimension of Columbia, and we can and must
find a durable and meaningful path to preserve
it.27
So long as schools continue to define “diversity” in
terms of “racial diversity,” they will look for ways to
get the racial balance they want.
None of this is surprising. The government has long
been recalcitrant when it comes to equality. After
California passed Prop 209 banning racial preferences
in public education and employment, the state
implemented various proxies for race, including socio-
economic preferences.28 Notably, these schools chose
socio-economic factors over a straight economic

26 Id.
27 Announcement, Columbia University in the City of New

York, Columbia Issues Statement on Affirmative Action Cases

(July 5, 2023) (emphasis added), https://tinyurl.com/yrpuzfn5.
28 See Mac Donald, supra note 7.
 14

preference since economic preference, alone, would

have led to a balance that officials did not like.29
Universities and even Thomas Jefferson are not
alone in their desire to make use of proxies. K–12
schools in New York, Boston, and Maryland have also
employed proxies in attempts to get their preferred
racial balance.30 It is vital that the Court provide clear
guidance to the effect that indirect racial
discrimination will not be tolerated as a method of
circumventing or subverting SFFA.
C. Government officials—from state
governors to President Biden—are
encouraging universities to evade the law.
Government officials in high office have also
signaled their intention to defy or subvert SFFA.
California Governor Gavin Newsom unequivocally
condemned SFFA, saying: ‘Right-wing activists—
including those donning robes—are trying to take us
back to the era of book bans and segregated
campuses.”31 Newsom even appeared to suggest that
the state of California will not follow SFFA, saying:
“[N]o court case will ever shatter the California dream

29 Id.
30 John Yoo & Erin Wilcox, If Supreme Court ends affirmative

action in higher education, here’s what the left could try next,
FOX NEWS (Oct. 28, 2022, 5:00 AM),
https://tinyurl.com/3fk9837t.
31Statement, Gavin Newsom, Governor, State of California,
Governor Newsom Condemns Supreme Court’s Majority Opinion
on Affirmative Action (June 29, 2023),
https://tinyurl.com/4ztsppep
 15

. . . our commitment to diversity, equity, and equal

opportunity has never been stronger.”32
Governor Jay Inslee of the State of Washington all
but declared his intention to ignore the Supreme
Court. Said Inslee:
These Republican-appointed judges have again
shown their disdain for well-established
principles of American law. They’ve
demonstrated they are blind to the fact that our
long history of racism contributes to the
opportunity barriers ethnic minorities still face
today. Our state will continue advancing the
cause of equity in higher education and
government. As with past rulings from this
court that have made our society less equitable
for women, people of color, and other
marginalized communities, Washington state
will respond however necessary to continue
advancing Dr. Martin Luther King Jr.’s vision
of the arc of the moral universe that bends
toward justice.33
On the east coast, Governor of New Jersey Phil
Murphy also condemned SFFA and the Supreme
Court: “Sadly, this decision is yet another way in
which the U.S. Supreme Court is taking our country
backwards . . . The Supreme Court’s decision does not
reflect the values of New Jersey.”34 Governor Murphy

32 Id.
33 Statement, Jay Inslee, Governor, State of Washington,
Inslee statement on SCOTUS ruling gutting affirmative action
(June 29, 2023), https://tinyurl.com/mryfc975.
34 Statement, Phil Murphy, Governor, State of New Jersey,

Statement from Governor Murphy on the U.S. Supreme Court

 16

went on to say that “My administration remains

committed to advancing equity in every area of our
society, and will be working with our partners in
higher education to determine ways to promote
equitable admissions within the constraints of this
ruling.”35 In other words, likeminded politicians and
university officials are collaborating.
Governor Maura Healey of Massachusetts issued a
similarly combative statement: “Today’s Supreme
Court decision overturns decades of settled law. In the
Commonwealth, our values and our commitment to
progress and to continued representation in education
are unshakable.”36 The statement was signed by many
officials of Massachusetts institutions of higher
education.
In New York, Governor Kathy Hochul called SFFA
“a dark day for democracy and equality.”37 Governor
Hochul was surprisingly candid about her attitude:
“[W]e go forth to ensure New York remains a place
where we celebrate diversity, inclusion, and we’re
going to continue to subscribe to those principles

Decision on Affirmative Action (June 29, 2023),

https://tinyurl.com/4cuxdvpd.
35 Id.
36 Press Release, Maura Healey, Governor, Commonwealth of

Massachusetts, Healey-Driscoll Administration Releases Joint

Statement in Response to Supreme Court Decision on Race-Based
Admissions (June 29, 2023), https://tinyurl.com/yfzxuzb3.
37 Nick Reisman, New York reacts to top court’s affirmative
action ruling, SPECTRUM LOC. NEWS (June 29, 2023),
https://tinyurl.com/ynyh9ekc.
 17

regardless of the decisions made by the Supreme Court

of the United States.”38
President Biden, in his role as chief executive of the
United States, has also unequivocally condemned
SFFA. In a press conference, the President said: “The
Court has effectively ended affirmative action in
college admissions. And I strongly—strongly disagree
with the Court’s decision.”39
President Biden was not content merely to express
his disagreement with the Court’s holding. Rather, his
words expressed a clear intention to fight the decision:
“We cannot let this decision be the last word. I want to
emphasize: We cannot let this decision be the last
word.”40 “We can’t go backwards.”41 “[]I know the
Court’s decision is a severe disappointment to so many
people, including me, but we cannot let the decision be
a permanent setback for the country.42” “We have to
find a way forward.”43
Like many others, President Biden pointed to a
part of Chief Justice Roberts’s opinion which Biden
appeared to believe could authorize continued race-
conscious admissions policies:

38 Id. (emphasis added).

39President Joe Biden, Remarks by President Biden on the
Supreme Court’s Decision on Affirmative Action (June 29, 2023),
transcript available at https://tinyurl.com/4tacm437.
40 Id.
41 Id.
42 Id.
43 Id.
 18

The Court says, quote “[N]othing in this opinion

should be construed as prohibiting universities
from considering an application’s [applicant’s]
discussion of how race [has] affected his or her
life,” but it’s—it’s through—but “be it through
discrimination [or] inspiration or otherwise.”44
The President went on to call for schools to find
ways to undermine SFFA by using proxies for race:
[Universities] should not abandon their
commitment to ensure student bodies of diverse
backgrounds and experience that reflect all of
America. What I propose for consideration is a
new standard, where colleges take into account
the adversity a student has overcome when
selecting among qualified applicants.45
In addition to “adversity,” President Biden suggested
“examining where the student grew up and went to
high school.”46 This is much like the purportedly race-
neutral scheme that was implemented at Thomas
Jefferson.
The President even stated his intent to help
universities come up with those proxies: “Today, I’m
directing the Department of Education to analyze
what practices help build [] more inclusive and diverse
student bodies[.]”47 In a fact sheet released the same
day, the White House announced that the Department
of Education will “provide resources to colleges and
universities addressing lawful admissions practices,
44 Id.
45 Id.
46 Id.
47 Id.
 19

and will also be “[r]eleasing a report on strategies for

increasing diversity[.]”48
So long as public officials view the world only in
terms of racial outcomes, they will seek ways to prefer
or penalize individuals for the race they were born
into. That will perpetuate all of the mischief SFFA
warned against: stereotyping, balancing, and
arbitrary classifications into perpetuity. Covert
discrimination is no less unconstitutional than
outright discrimination. This Court should grant cert
to stop it.
CONCLUSION
For the foregoing reasons, and those described by
the Petitioner, this Court should grant the petition.

........................................... Respectfully submitted,

Anastasia P. Boden
Counsel of Record
CATO INSTITUTE
1000 Mass. Ave., N.W.
Washington, DC 20001
(202) 216-1414
[email protected]

September 20, 2023

48 Press Release, FACT SHEET: President Biden Announces

Actions to Promote Educational Opportunity and Diversity in
Colleges and Universities (June 29, 2023),
https://tinyurl.com/45eezjy5.