Students for Fair Admissions, Inc. v. President and Fellows of Harvard College et al

Filing 460

AMICUS BRIEF filed by Asian American Coalition for Education, Asian American Legal Foundation . (Randazza, Marc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

STUDENTS FOR FAIR
ADMISSIONS, INC,

)
)
)
Plaintiff,
)
)
vs.
)
)
THE PRESIDENT AND FELLOWS OF )
HARVARD COLLEGE (HARVARD
)
CORPORATION),
)
)
Defendant.
)
)

Civil Action No.
1:14-cv-14176-ADB

BRIEF OF AMICI CURIAE THE ASIAN AMERICAN LEGAL FOUNDATION
AND THE ASIAN AMERICAN COALITION FOR EDUCATION
(REPRESENTING 156 AFFILIATED ASIAN AMERICAN ORGANIZATIONS)
IN SUPPORT OF PLAINTIFF

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TABLE OF CONTENTS
I.

THE INTEREST OF AMICI CURIAE. ................................................................................. 1

II.

SUMMARY OF ARGUMENT .............................................................................................. 4

III. HARVARD MAINTAINS ITS QUOTAS BY RAISING THE ADMISSIONS BAR
HIGHER FOR ASIAN AMERICANS, AND BY USING THE SAME ODIOUS
STEREOTYPES HISTORICALLY USED TO JUSTIFY DISCRIMINATION AGAINST
THIS ETHNIC GROUP. ........................................................................................................ 6
IV. THE LONG HISTORY OF DISCRIMINATION AGAINST ASIAN AMERICANS IN
THIS COUNTRY. .................................................................................................................. 8
A.
B.
C.
D.
V.

PERSECUTION OF ASIAN AMERICANS WAS THE NORM THROUGHOUT MOST OF AMERICAN
HISTORY. ............................................................................................................................. 8
THE HISTORY OF DISCRIMINATION AGAINST ASIAN AMERICANS IN EDUCATION. ............... 9
THE CHINESE EXCLUSION ACT. ......................................................................................... 10
INTERNMENT OF JAPANESE AMERICAN FAMILIES. ............................................................. 11
THE HO CASE AND OTHER PRESENT-DAY BATTLES AGAINST
DISCRIMINATION IN CALIFORNIA AND BEYOND. .................................................. 12

VI. THE PRESENT AND FUTURE OF LEGALIZED DISCRIMINATION AGAINST
ASIAN AMERICANS. ......................................................................................................... 13
A.
B.
C.

VII.
A.
B.
VIII.

ASIAN AMERICANS AS THE “NEW JEWS” IN HIGHER EDUCATION. ..................................... 13
THE BURDEN OF HARVARD’S “HANDICAPPING” FALLS HEAVIEST ON THOSE
INDIVIDUALS LEAST ABLE TO BEAR IT. ............................................................................. 15
THE TERRIBLE EFFECT ON THE DIGNITY AND SELF WORTH OF ASIAN AMERICANS WHO
KNOW THEY AND THEIR CHILDREN WILL BE SUBJECTED TO UNEQUAL TREATMENT
BECAUSE OF THEIR RACE. ................................................................................................. 16
HARVARD’S COVERT PROGRAM OF DISCRIMINATION SHOULD BE
BROUGHT TO AN END. ................................................................................................ 20
HIDDEN “TRADE SECRETS” SHOULD NOT BE ALLOWED TO JUSTIFY OBVIOUS
DISCRIMINATION................................................................................................................ 20
HARVARD DID NOT EVEN TRY TO USE RACE-NEUTRAL ALTERNATIVES TO ACHIEVE ITS
VIEW OF D IVERSITY. .......................................................................................................... 20
CONCLUSION. ................................................................................................................ 21

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TABLE OF AUTHORITIES
CASES
Adarand Constructors v. Pena,
515 U.S. 200 (1995) .................................................................................................................. 15
Fisher v. Univ. of Tex.,
570 U.S. 297, 133 S. Ct. 2411 (2013) ....................................................................................... 21
Gong Lum v. Rice,
275 U.S. 78 (1927) .................................................................................................................... 10
Hirabayashi v. United States,
320 U.S. 81 (1943) .................................................................................................................... 11
Hirabayashi v. United States,
828 F.2d 591 (9th Cir. 1987) .................................................................................................... 11
Ho Ah Kow v. Nunan,
12 F. Cal. 252 (C.C.D. Cal. 1879) .............................................................................................. 8
Ho v. San Francisco Unified Sch. Dist.,
147 F.3d 854 (1998)........................................................................................................... passim
In re Ah Chong,
2 F. 733 (C.C.D. Cal. 1880) ........................................................................................................ 8
In re Lee Sing,
43 F. 359 (C.C.D. Cal. 1890) ...................................................................................................... 9
In re Tiburcio Parrott,
1 F. 481 (C.C.D. Cal. 1880) ........................................................................................................ 9
Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984) ......................................................................................... 11
Lee v. Johnson,
404 U.S. 1215 (1971) ................................................................................................................ 10
Parents Inv. In Comm. Sch. v. Seattle School No. 1,
127 S. Ct. 2738 (2007) ................................................................................................................ 6
People v. Hall,
4 Cal. 399 (1854) ........................................................................................................................ 7
Plessy v. Ferguson,
163 U.S. 537 (1896) .................................................................................................................. 10
Rice v. Cayetano,
528 U.S. 495 (2000) .................................................................................................................. 16

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Richmond v. Croson,
488 U.S. 469 (1989) .................................................................................................................. 16
S.F. NAACP v. S.F. Unified Sch. Dist.,
576 F. Supp. 34 (N.D. Cal. 1983) ............................................................................................. 12
Shelley v. Kraemer,
334 U.S. 1 (1948) ...................................................................................................................... 15
Tape v. Hurley,
66 Cal. 473, 6 P. 12 (1885) ......................................................................................................... 9
United States v. Wong Kim Ark,
169 U.S. 649 (1898) .................................................................................................................... 9
Wong Him v. Callahan,
119 F. 381 (C.C.N.D. Cal. 1902) .............................................................................................. 10
Yick Wo v. Hopkins,
118 U.S. 356 (1886) .................................................................................................................... 9

OTHER AUTHORITIES
Akane Otani, Tips From the Princeton Review: Act Less Asian, Add Pics if You're Black,
Bloomberg, Nov. 21, 2014, found at https://www.bloomberg. com/news/articles/2014-1121/princeton-review-tells-asians-to-act-less-asian-and-black-students-to-attach-photos (last
visited 7/29/2018) ..................................................................................................................... 18
Alan M. Dershowitz and Laura Hanft, Affirmative Action and the Harvard College DiversityDiscretion Model: Paradigm or Pretext, 1 Cardozo L. Rev. 379, 385-399 (1979)............ 13, 15
Bella English, To Get Into Elite Colleges, Some Advised To ‘Appear Less Asian,’ The Boston
Globe, June 1, 2015, found at https://www.bostonglobe.com/lifestyle/2015/06/01/ collegecounselors-advise-some-asian-students-appear-less-asian/Ew7g4JiQMiqYNQ
lIwqEIuO/story.html (last visited 7/30/2018) ........................................................................... 18
Charles McClain, In Search of Equality (Univ. of Cal. Press 1994) .......................................... 8, 9
Chinese Immigration and the Chinese Exclusion Acts, at
https://history.state.gov/milestones/1866-1898/chinese-immigration (last visited 7/27/2018) 10
Daniel Golden, The Price of Admission: How America’s Ruling Class Buys Its Way into
Elite Colleges—and Who Gets Left Outside, Chapter 7: The New Jews
(Three Rivers Press, 2007)........................................................................................................ 14
Elmer Clarence Sandmeyer, The Anti-Chinese Movement in California
(Univ. of Ill. Press 1991)............................................................................................................. 8

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Evan P. Schultz, Group Rights, American Jews, and the Failure of Group Libel Laws, 66 Brook.
L. Rev. 71, 111-12 (Spring 2000) ............................................................................................. 13
George Oiao, Why Are Asian American Kids Killing Themselves? Plan A Magazine, Oct. 3,
2017, found at https://planamag.com/why-are-asian-american-kids-killing-themselves477a3f6ea3f2 (last visited 7/29/2018) ...................................................................................... 18
Handicap (Horse Racing), Wikipedia, found at https://en.wikipedia.org/wiki/Handicap_(horse
_racing) (last checked 7/27/2018) ............................................................................................. 15
Jason P. Riley, The New Jews of Harvard Admissions (Wall Street Journal, May 19, 2015) ..... 14
Jerry Kang, Negative Action Against Asian Americans: The Internal Instability Of Dworkin’s
Defense Of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 36 (Winter 1996) .................... 13
Johann N. Neem, The Founding Fathers Made Our Schools Public. We Should Keep Them That
Way, The Washington Post, Aug. 20, 2017, found at https://www.washingtonpost.com/news/
made-by-history/wp/2017/08/20/early-america-had-school-choice-the-founders-rejectedit/?utm_term=.815adf5587ba (last visited 7/27/2018) ................................................................ 9
Julian Guthrie, S.F. School Race-Bias Case Trial Starts Soon, San Francisco Examiner, at C-2
(Feb. 14, 1999) .......................................................................................................................... 17
Kate Murphy, California Affirmative Action Revival Bill Is Dead (San Jose Mercury News,
March 18, 2014) at http://www.mercurynews.com/education/ci_25361339/californiaaffirmative-action-challenge-is-dead? (last checked 7/27/2018) .............................................. 13
Lawrence Siskind, Racial Quotas Didn’t Work in SF Schools, op-ed, San Francisco Examiner
(July 6, 1994), found at http://heather.cs.ucdavis.edu/pub/ AffirmativeAction/Siskind.html
(last visited 7/29/2018) ............................................................................................................. 13
Lee Cheng, Group Preferences and the Law, U.S. House of Representatives Sub-Committee on
the Constitution Hearings (June 1, 1995), p. 241, found at http://www.archive.org/stream/
grouppreferences00unit/grouppreferences00unit_djvu.txt (last checked 7/27/2018) ............... 17
Leo Rennert, President Embraces Minority Programs, Sacramento Bee (Metro Final) at A1
(April 7, 1995) .......................................................................................................................... 14
Nathan Glazer, Diversity Dilemma, The New Republic (June 22, 1998) ............................... 13, 14
Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary
L. Rev. 1, 61-64 (Oct. 1994) ..................................................................................................... 14
Peter Arcidiacono, Thomas Espenshade, Stacy Hawkins & Richard Sander, A Conversation on
the Nature, Effects, and Future of Affirmative Action in Higher Education Admissions, 17 U.
Pa. J. Const. L. 683, 694-695 (2015), located at
https://scholarship.law.upenn.edu/jcl/vol17/iss3/2 (lasted visited 7/27/2018) ........................... 7
Peter S. Menell, Tailoring a Public Policy Exception to Trade Secret Protection, Cal. L. Rev.,
Vol 105, Iss. 1, at 6 (Feb. 1, 2017), found at

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https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=4346&context=californialawr
eview (last visited 7/29/2018) ................................................................................................... 20
Race-Neutral Alternatives in Postsecondary Education: Innovative Approaches to Diversity, U.S.
Department of Education Office for Civil Rights, March 2003, found at
https://www2.ed.gov/about/offices/list/ocr/edlite-raceneutralreport.html (visited 7/29/2018) 21
Randall Fitzgerald, The Hundred Year Lie, p. 24 (Dutton, 2006) ................................................ 20
Ron Unz, The Myth of American Meritocracy: How Corrupt are Ivy League Admissions? (The
American Conservative, Dec. 2012), at http://www.theamericanconservative .com/articles/themyth-of-american-meritocracy/ (last checked 7/27/2018).................................................. 14, 18
Ron Unz, The Myth of American Meritocracy: How Corrupt are Ivy League Admissions?, pgs.
17-22 (The American Conservative, Dec. 2012), at http://www.theamericanconservative
.com/articles/the-myth-of-american-meritocracy/ (last checked 7/27/2018) .............................. 5
Scott Jaschik, Pressure to Build the Class: 2016 Survey of Admissions Directors, Inside Higher
Education, September 22, 2016, found at https://www.insidehighered.
com/news/survey/pressure-build-class-2016-survey-admissions-directors (last visited
7/30/2018) ................................................................................................................................. 15
Selana Dong, “Too Many Asians”: Challenge of Fighting Discrimination Against AsianAmericans and Preserving Affirmative Action, 47 Stan. L. Rev. 1027, 1057 n.36 (May 1995)
................................................................................................................................................... 14
The Free Dictionary, found at https://idioms.thefreedictionary.com/ Chinaman%27s+chance (last
visited July 20, 2018) .................................................................................................................. 8
Thomas J. Espenshade and Alexandra Walton Radford, No Longer Separate, Not Yet Equal:
Race and Class in Elite College Admission and Campus Life (Princeton University Press,
2009) ......................................................................................................................................... 14
Victor Low, The Unimpressible Race (East/West Publishing Co. 1982) ....................................... 8
Yii-Chen (Jenny) Wu, Admission Considerations in Higher Education Among Asian Americans,
American Psychological Association, found at
http://www.apa.org/pi/oema/resources/ethnicity-health/asian-american/article-admission.aspx
(last checked 7/29/2018) ........................................................................................................... 19

CONSTITUTIONAL PROVISIONS
Cal. Const. Art. I § 31(a)............................................................................................................... 12

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I.

THE INTEREST OF AMICI CURIAE.
The outcome of this litigation is of critical importance to Amici Curiae and their
constituents, who are Americans of Asian ethnic origin, many of whom have children who may
one day aspire to attend Harvard College or a school using similarly discriminatory admissions
practices. The members of this ethnic group have a special interest in this case: they have
historically faced blatant discrimination in education and presently face the same by one of
America’s oldest and most prestigious educational institutions.

Harvard’s discriminatory

practices have been copied and emulated by countless other educational institutions as the gold
standard for achieving skin-deep diversity; but unfortunately, scrutiny reveals that underneath the
thin layer of gilt lies nothing but the same old racism.
The Asian American Legal Foundation (“AALF”), a non-profit organization based in San
Francisco, was founded to protect and promote the civil rights of Asian Americans. Its focus is
on a particular niche where, as here, Asian Americans are discriminated against for a purportedly
benign purpose and many famous and high-profile groups and individuals deny that
discrimination even exists.

Members of AALF were instrumental in the struggle to end

discrimination against Chinese American students in the San Francisco, California public school
system, discrimination that was also imposed for supposedly benign reasons. See Ho v. San
Francisco Unified Sch. Dist., 147 F.3d 854 (1998). AALF and its members have been active in
many cases and campaigns where the rights of Asian Americans were at issue, particularly in
education. More information on AALF and its mission can be found on its website at
http://www.asianamericanlegal.com.
The Asian American Coalition for Education (“AACE”) is a non-political, non-profit,
national organization devoted to promoting equal rights for Asian Americans in education and
education-related activities. The leaders of AACE and its supporting organizations are Asian
American community leaders, business leaders and, most importantly, parents. They are not
professional “civil rights advocates” and do not get funding from large corporations and
multibillion dollar foundations, but were forced to become civil rights advocates to stop and

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prevent the discrimination against their children that the “professionals” ignore, downplay and
facilitate.
In May 2015, the founders of AACE united more than 60 Asian American organizations
to file a complaint with the Department of Justice and the Department of Education regarding
Harvard University’s discriminatory practices against Asian American applicants. It was one of
the largest joint actions ever taken by Asian American organizations in pursuit of equal
education rights.
AACE represents some 156 affiliated Asian American organizations in this present
amicus effort including: 1441 Manufactured-Home Residents Association, 80-20 Education
Foundation, 80-20 Initiative DC Chapter, AAACC Educational Foundation, AE & LY Medical
Associates, PLLC, Allstar Institute, America Earlier Education Center LLC, American Asian
Contractor Association, American Chinese Medicine Association, American Hindu Coalition,
American Society of Engineers of Indian Origin-NCC, American Sports Development
Committee, ANJ International, Asian American Civic Engagement Alliance, Asian American
Community Association, Asian American GOP Coalition, Asian American Rights Association,
Asian Americans Against Affirmative Action, AsianAmericanVoters.org, Association for
Education Fairness, Austin Chinese Professional Association, Bay Area Homeowner Network,
Bergen Chinese Group, Boston Forward Foundation, Brookline Asian American Foundation,
Carolinas Asian American Alliance, Cast Vote, CeeHuang Daoist RC, Center for Chinese
Learning at Stony Brook, CHESSanity, China Rainbow Network, Chinese American Alliance,
Chinese American Alliance For Trump, Chinese American Association of Bedford, Chinese
American Association of Orange County, Chinese American Association of the Andovers,
Chinese American Association of Tulsa, Chinese American Citizens Alliance (CACA Boston
Lodge), Chinese American Economic & Culture Association, Chinese American Equalization
Association (HQH), Chinese American Heritage Association, Chinese -American Nail Salon
Association, Chinese American Parent Association of Howard County, Chinese American
Parents Association of Montgomery County, Chinese American Republicans of Massachusetts,
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Chinese Americans of Lexington (CALex), Chinese Association for Progress and Equality,
Chinese Association of Northwest Arkansas, Chinese Association of Science, Education and
Culture of South Forida (CASEC), Chinese Association, Inc., Chinese Civil Rights League, Inc.,
Chinese Freemasons (NY), Chinese Freemasons in Las Vegas, Chinese Social Service Center,
Confucius Foundation, Councils of Maryland Korean Churches, D4Sue Inc, Dallas Fort Worth
Chinese Alliance (DFWCA), Dallas Fort Worth Political Action Committee (DFWPAC),
Emerald Parents Association, Epoch Investment LLC, Evergreen Chinese American Association,
Excellent Chinese School, Florida Acupuncture Association, Fuzhou Tingjiang Huaqiao Alumni
Associated USA, Gang Chen for City Council 2018, Global Exchange Education Center, Global
Organization of People of India Origin (GOPIO), Greater Charlotte Chinese American
Conservatives, Greater Orlando Chinese Professionals Association, Greater San Antonio Chinese
Society of Professionals, Greater Shanghai Alliance of American, Green Bees Multicultural
LLC, Harrison Chinese Association, Hotel Chinese Association of USA,, Houston Chinese
Alliance, Houston Guangxi Association, Huaxia Chinese School of Greater New York, HuaYi
Education, Huazhong University of Sci & Tech Alumni Association of Southern California,
Hubei Association of Florida, INDOUS Chamber of commerce of NE Florida, iNegotiate LLC,
Jade Springs, J-Cheng Gene LLC, Jilin Jilin Fellowship Group, JYC holdings, LLC, KAJI &
ASSOCIATES, LAVA Electronics Inc., Law Offices of Michael W. Lu, LLC, Livingston
Chinese Association, Long Island Chinese American Association (LICAA), Long Island School
of Chinese, Lonma Leather LLC, Maryland Chinese American Network (MD-CAN), Metro Star
Media, Michigan Chinese Alliance, Michigan Chinese Conservatives Alliance, Mid-Missouri
Chinese Association, Millburn Institute of Talent, Montgomery County GOP Asian American
Association (MCGOP-AAA), Nanjing University Alumni Association Florida Chapter, National
Council of Chinese Americans (NCCA), National Federation of Indian American Associations,
New Hyde Park Chinese Association, New York Chinese United League, Newton Alliance of
Chinese Americans, NJ Chinese Media LLC, Noah Decoration LLC, Noble Tree Publishing
Inc., North American Economic Herald, North American Maple Cultural Center of Florida,
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Northern California Chinese Culture Athletic Federation (NCCCAF), Orange County Chinese
Ladies Group, Orange County Herald Center, Orlando Chinese Association, Overseas Alumni
Association of Shanghai Second Medical University (SJTUMS), Pakistan Policy Institute,
Pakistani American Volunteers, Philadelphia Tristate Chines American Association (PTCAA),
Plano Table Tennis Club, Project and Knowledge Concepts, Promising Analytical Consisting,
Queenberry, Inc., Rotary Club of Huaren in Silicon Valley, San Diego Asian Americans For
Equality, SCV Chinese School, Shangder Academy of Classical Chinese, Shanxi Association of
Silicon Valley, Silicon Valley women alliance, Sino - America New York Brooklyn Archway
Association Corp., South Florida Chinese Business Association, Student Partner In Learning,
SVCA Foundation, Texas Guizhou Association, The Chinese Nail Salon Association of East
American, The Orange Club, The Shanghai Association of America, Inc., Tingling High School
Alumnus Association of America, United Chinese Association of Utah, United Federation of
Indo Americans of California, United for a Better Community (UBC), University of California
Alumni Association, US Chinese Learning Foundation, USTC Alumni Association SoCal, V
Care Home Health Services, Venus Chinese School, Washington RiZing Economics And
Fintech Educational Organization, Wei Bo learning Organization, Welcome Family Medicine,
PA, Wen's Pearls, West Windsor-Plainsboro Education Support Association, Xiangtan
University Alumni Association of North America, Yi-radio, Youth Education Success, and
Zhengyuan Culture Bridge.
The members and constituents of AALF and AACE are deeply concerned about the
outcome of the case now before this court. They believe that it is vital that the Court understand
their concerns and why it is so important to them that the Court uphold the right of Asian
Americans to be treated as individuals by Harvard College, equal to other individuals in the
admissions process and not judged by a separate standard.
II.

SUMMARY OF ARGUMENT
Amici Curiae, the Asian American Legal Foundation (“AALF”) and the Asian American

Coalition for Education (“AACE”), respect Harvard as one of the world’s foremost institutions
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of higher education. However, Amici deplore Harvard’s treatment of Asian American applicants
in the college admissions process, which is contrary to the Constitution’s mandate that all
individuals enjoy equal protection of the laws. Evidence that is beyond reasonable dispute
establishes Harvard treats Asian American applicants differently from others, holding them to a
higher bar in order to maintain very obvious racial quotas for admissions.1
Particularly troubling is the fact that Harvard accomplishes its racial balancing in large
part by having its admissions officers assign Asian American applicants a significantly lowered
“Personal” rating in a secretive, “black box” process to counter their otherwise above-average
academic and extracurricular achievements.

While this may be a convenient method of

controlling the number of Asian Americans admitted, it provides an eerie parallel with the
negative stereotyping that has in the past been used to justify discrimination against members of
this historically disadvantaged group. It is also similar to what Harvard did in the past to Jewish
Americans using similar processes and excuses.
Throughout their long history in this country, Asian Americans have faced persecution
and discrimination. Negative stereotypes were used to justify discrimination, like calling Asians
Americans faceless members of a “yellow horde” lacking the values and human attributes of
other Americans. Case after case bears witness to the long struggle of Asian Americans for
equal treatment. It is now disheartening to see this type of discrimination used again against
Asian Americans, and this time by one of America’s oldest and most respected universities.

1

For instance, the percentage of Asian Americans applications admitted into each Harvard
class has remained remarkably constant during a multi-decade period of time where the total
number of Asian American applicants has grown dramatically. (Plaintiff’s Memorandum of
Reasons In Support Of Its Motion For Summary Judgment (“Plaintiffs’ Memo”) at 34; Ron Unz,
The Myth of American Meritocracy: How Corrupt are Ivy League Admissions?, pgs. 17-22 (The
American Conservative, Dec. 2012), at http://www.theamericanconservative .com/articles/themyth-of-american-meritocracy/ (last checked 7/27/2018). Significantly, each time Harvard has
been subject to a complaint or investigation, the percentage of Asian American admits has
increased the following year.

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The discrimination in education against Asian American applicants causes real and
tangible harm. It causes Asian Americans to feel that they are not valued as much as other
citizens. It causes many young Asian Americans to feel a sense of inferiority, hopelessness and
anger. Asian American students feel they have to work even harder in order just to have a
chance of acceptance, leading to anxiety, depression and increased rates of suicide.
For these and other reasons set forth herein, the Court should grant summary judgment to
Plaintiff and put an end to Harvard’s unlawful discrimination.
III.

HARVARD MAINTAINS ITS QUOTAS BY RAISING THE ADMISSIONS BAR
HIGHER FOR ASIAN AMERICANS, AND BY USING THE SAME ODIOUS
STEREOTYPES HISTORICALLY USED TO JUSTIFY DISCRIMINATION
AGAINST THIS ETHNIC GROUP.
Harvard is causing the harm the Supreme Court warned of through its misguided and

illegal efforts to maintain what it considers a “proper” balance of races in its student body. “We
have many times over reaffirmed that ‘[r]acial balance is not to be achieved for its own sake.’”
Parents Inv. In Comm. Sch. v. Seattle School No. 1, 127 S. Ct. 2738, 2757 (2007) (citing cases).
Evidence that is beyond reasonable dispute establishes that Harvard raises the bar higher for
applicants identified as Asian American, requiring them to score higher in most ratings during
the admissions process to stand a chance of being admitted. (Plaintiffs’ Memo. at 7-10.) Indeed,
an internal investigation by the Harvard Office of Institutional Research confirms the systematic
discrimination against Asian American applicants. (Plaintiffs’ Memo. at 11-15).
Amici Curiae and their constituents find it particularly disturbing that, in order to achieve
the desired outcome while ostensibly applying the same admissions criteria to everyone,
Harvard’s admissions staff devalue Asian American applicants in the admissions process by
assigning them a Personal rating—which is allegedly an assessment of character traits and
human qualities—that is inexplicably on average significantly lower than the ratings given
applicants of all other ethnic groups. (Plaintiffs’ Memo. at 8.) This method of countering Asian
American applicants’ otherwise above-average admissions metrics allows Harvard to depress
Asian American matriculation, but at the cost of reinforcing negative stereotypes about and
insulting all Asian Americans.

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Amici Curiae cannot accept the baseless claim that Asian Americans are deficient in
character and human qualities compared to applicants from all other ethnic groups.2
Significantly, Harvard alumni interviewers, who actually meet with the applicants (unlike the
admissions staff), rate Asian American applicants on average as high as applicants of other
ethnicities in terms of character and personal attributes. (Plaintiffs’ Memo. at 8, 30.) That their
assessment is the correct one is supported, not just by common sense, but by a study of 100,000
undergraduate applicants to UCLA over three years, which found, as one might expect,
“essentially no correlation” between race and personal attributes. Peter Arcidiacono, Thomas
Espenshade, Stacy Hawkins & Richard Sander, A Conversation on the Nature, Effects, and
Future of Affirmative Action in Higher Education Admissions, 17 U. Pa. J. Const. L. 683, 694695 (2015), located at https://scholarship.law.upenn.edu/jcl/vol17/iss3/2 (lasted visited
7/27/2018).
Harvard admissions officers no doubt find the application of lower Personal ratings a
highly-effective method to lower the overall score given otherwise high-scoring individual Asian
American applicants in the admissions process, allowing them to maintain a “proper” racial
balance. However, because the Personal score supposedly reflects the personal attributes of the
applicant, the use of it to devalue Asian American applicants promotes the idea that Asian
Americans are inferior to and worth less than applicants of all other races, perpetuating negative
stereotypes that have historically been used to justify discrimination against Asian Americans.
One hundred and sixty-four years ago, in People v. Hall, 4 Cal. 399, 404-05 (1854), the
California Supreme Court invalidated the testimony of Chinese American witnesses to a murder,
explaining that Chinese were “a distinct people … whose mendacity is proverbial; a race of
people whom nature has marked as inferior, and who are incapable of progress or intellectual
development beyond a certain point, as their history has shown; differing in language, opinions,

Only the top decile of Asian applicants are given a high ”1” or “2” rating by Harvard
admissions staff compared to the top seven deciles of Hispanic applicants and the top 8 deciles of
black applicants. (Plaintiffs’ Memo. at 8-9.) Are Hispanic and black applicants so
overwhelmingly more interesting and personable than Asian applicants?
2

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color, and physical conformation; between whom and ourselves nature has placed an impassable
difference.” It is absolutely outrageous that Harvard is today projecting a very similar sentiment
through the method it uses to “balance” its student body.
IV.

THE LONG HISTORY OF DISCRIMINATION AGAINST ASIAN AMERICANS
IN THIS COUNTRY.
A.

Persecution of Asian Americans Was the Norm Throughout Most of American
History.
Asian Americans have been discriminated against in this country due to their race almost

as long as there have been Asians in America. See, e.g., Charles McClain, In Search of Equality
(Univ. of Cal. Press 1994); Elmer Clarence Sandmeyer, The Anti-Chinese Movement in
California (Univ. of Ill. Press 1991); Victor Low, The Unimpressible Race (East/West
Publishing Co. 1982). Often forced into dangerous work that nobody else wanted and denied the
opportunities open to other Americans, their treatment was so dismal it gave rise to the
expression “a Chinaman’s Chance,” a term meaning, “Little or no chance at all; a completely
hopeless prospect.”

The Free Dictionary, found at https://idioms.thefreedictionary.com/

Chinaman%27s+chance (last visited July 20, 2018).3
Discrimination against Asian Americans was often supported by luminaries and “experts”
of the times who proffered justifications based on the national interest or Asian’s supposedly
inferior personal qualities. The many court cases in which Asian Americans struggled for equal
treatment provide a historical record that is tragic, outrageous and impossible to refute.
In Ho Ah Kow v. Nunan, 12 F. Cal. 252 (C.C.D. Cal. 1879) (No. 6,546), a district court
invalidated San Francisco’s infamous “Queue Ordinance” on equal protection grounds.
In In re Ah Chong, 2 F. 733 (C.C.D. Cal. 1880), the court found unconstitutional a law
forbidding Chinese Americans from fishing in California waters.

“There have been several explanations about the origin of this odious phrase, all arising
from Chinese immigrants working in the American West. One is that they were given the most
dangerous jobs, such as setting and igniting explosives. Another is that judges and juries
routinely convicted Chinese defendants on the flimsiest of evidence. A third is that Chinese
miners were allowed to work gold claims only after others had taken the best ore.” Id.
3

-8-

In In re Tiburcio Parrott, 1 F. 481 (C.C.D. Cal. 1880), the court declared unconstitutional
a provision of California’s 1879 constitution that forbade corporations and municipalities from
hiring Chinese American workers.
In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Supreme Court ruled that Chinese were
“persons” under the Fourteenth Amendment and could not be singled out for unequal burden
under a San Francisco laundry licensing ordinance.
In In re Lee Sing, 43 F. 359 (C.C.D. Cal. 1890), the court found unconstitutional the
“Bingham Ordinance,” which had mandated residential segregation of Chinese Americans.
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court ruled that a
Chinese American boy, born in San Francisco, could not be prevented by San Francisco officials
from returning to the city from a trip abroad.
B.

The History of Discrimination Against Asian Americans in Education.
After the 1776 Revolution, Americans quickly came to agree with Thomas Jefferson “that

the future of the republic depended on an educated citizenry,” and that universal public education
should be provided to all citizens. Johann N. Neem, The Founding Fathers Made Our Schools
Public. We Should Keep Them That Way, The Washington Post, Aug. 20, 2017, found at
https://www.washingtonpost.com/news/ made-by-history/wp/2017/08/20/early-america-had-schoolchoice-the-founders-rejected-it/?utm_term=.815adf5587ba (last visited 7/27/2018).

Alas, the

sentiment did not extend to Asian Americans. For most of the nation’s history, they have faced
formidable discrimination in education. The discrimination began with outright exclusion, then
tracked the evolution of the “separate but equal” doctrine as applied to education, and finally
evolved into the racial balancing schemes such as the one at issue here.
In Tape v. Hurley, 66 Cal. 473, 6 P. 12 (1885), it took a court battle to force San
Francisco public schools to admit a Chinese American girl who was denied entry because, as
stated by the State Superintendent of Public Instruction, public schools were not open to
“Mongolian” children. See McClain, supra, at 137. In response, the California legislature
authorized “Chinese” schools to which Chinese American schoolchildren were restricted by law
until well into the twentieth century. See Ho, 147 F.3d at 864; see also Kuo, supra, at 207-208.

-9-

It is not widely known, but Asian American schoolchildren were among the first targets
of the “separate-but-equal” doctrine created in Plessy v. Ferguson, 163 U.S. 537 (1896). The
Supreme Court created the Plessy doctrine in a case where a black passenger attempted to board
a “white” railway car. Id. In Wong Him v. Callahan, 119 F. 381 (C.C.N.D. Cal. 1902), this
doctrine was applied to schools, when a district court agreed that Chinese American children in
San Francisco could be barred from “white” schools because the “Chinese” school in Chinatown
was “separate but equal.”
In Gong Lum v. Rice, 275 U.S. 78 (1927), the Supreme Court affirmed that the separatebut-equal doctrine applied to schools, finding that a nine-year-old Chinese American girl
residing in Mississippi could be denied entry to the local “white” school because she was a
member of the “yellow” race. Id. at 87.
Recognizing this history, in Lee v. Johnson, 404 U.S. 1215, 1215-16 (1971), Supreme
Court Justice Douglas wrote that: “Historically, California statutorily provided for the
establishment of separate schools for children of Chinese ancestry. That was the classic case of
de jure segregation involved in Brown v. Board of Education…. Brown v. Board of Education
[which abolished the separate-but-equal doctrine] was not written for blacks alone. It rests on
the Equal Protection Clause of the Fourteenth Amendment, one of the first beneficiaries of which
were the Chinese people of San Francisco.” Harvard appears to either disagree with Justice
Douglas’ assessment or otherwise disregard it.
C.

The Chinese Exclusion Act.
In 1882, in an extraordinary and shameful attack on equal protection, Congress passed

the Chinese Exclusion Act, the first national law enacted to prevent an ethnic group from
immigrating to the United States. See Chinese Immigration and the Chinese Exclusion Acts, at
https://history.state.gov/milestones/1866-1898/chinese-immigration (last visited 7/27/2018).
Fueled by anti-Chinese hysteria and supported by a broad spectrum of leaders and society of the
time, it prohibited all entry of Chinese laborers. Id.
As aptly described by opponent Republican Senator George Frisbie Hoar in 1882, this
Act was “nothing less than the legalization of racial discrimination.” Id.

- 10 -

The Act was not repealed until 1943, during World War II, when China was an ally of the
United States in the war against Japan. Id.
D.

Internment of Japanese American Families.
One of the most egregious modern infringements of the constitutional rights of Asian

Americans occurred during World War II when, pursuant to presidential and military orders,
entire families of Japanese Americans were removed from their West Coast homes and placed in
internment camps.4 Backed up by the statements of authorities and experts, who solemnly stated
the measure was necessary, the internment of Americans on American soil was allowed by the
United States Supreme Court. See Hirabayashi v. United States, 320 U.S. 81 (1943).
Today, of course, it is universally acknowledged that there was no justification for this
abrogation of the rights of American citizens. See Korematsu v. United States, 584 F. Supp.
1406, 1420 (N.D. Cal. 1984); Hirabayashi v. United States, 828 F.2d 591 (9th Cir. 1987). The
1980 Commission on Wartime Relocation and Internment of Civilians found that exclusion
orders had been motivated by “racism” and “hysteria” and not “military necessity.”

See

Korematsu, 584 F. Supp at 1416. “[T]he government deliberately omitted relevant information
and provided misleading information in papers before the court.” Id. at 1420.
The lesson taught, time and again, is that, in cases such as the one before it now, courts
should be wary of the statements of luminaries and experts who line up to support a program of
racial discrimination. Such proffered justifications for the infringement of individual rights have
never stood the test of time.

4

Executive Order No. 9066 was issued on February 19, 1942. It authorized the Secretary
of War and certain military commanders “to prescribe military areas from which any persons
may be excluded as protection against espionage and sabotage.” Congress enacted § 97a of Title
18 of the United States Code, making it a crime for anyone to remain in restricted zones in
violation of such orders. Military commanders then, under color of Executive Order No. 9066,
issued proclamations excluding Japanese Americans from West Coast areas, and sending them to
internment camps. See Korematsu v. United States, 584 F. Supp. 1406, 1409 (N.D. Cal. 1984).

- 11 -

V.

THE HO CASE AND OTHER PRESENT-DAY
DISCRIMINATION IN CALIFORNIA AND BEYOND.

BATTLES

AGAINST

Use of race in education did not end with Brown v. Board of Education. Today, schools
at all levels use supposedly “benign” racial balancing or diversity programs to discriminate
against Asian Americans. The most striking example of such “good-intentioned” discrimination
occurred in San Francisco—in the state where, ironically, much of the historical discrimination
against Asian Americans had taken place. Late in the supposedly enlightened 20th century, San
Francisco’s Chinese American schoolchildren were forced to turn to the courts in order to end
the school district’s policy of assigning them to the city’s K-12 schools on the basis of their race.
See Ho v. San Francisco Unified Sch. Dist., 147 F.3d 854; Ho, 59 F. Supp. 2d 1021 (on remand).
Without any finding of a constitutional violation to remedy, pedagogical experts set up a
racial balancing scheme with the goals of preventing “racial isolation” and providing “academic
excellence.” See Ho, 965 F. Supp. at 1322; see also Ho, 147 F.3d at 859; S.F. NAACP v. S.F.
Unified Sch. Dist., 576 F. Supp. 34, 40-42, 58 (N.D. Cal. 1983). The proponents ignored that the
San Francisco school district was already one of the most ethnically diverse in the nation.
“Caps” were imposed at each school on arbitrarily-defined racial groups, one of which was
“Chinese.” See id.; see also Ho, 147 F.3d at 856-58. The burden fell heaviest on students
identified as “Chinese,” who were most likely to be “capped out” at neighborhood schools or at
magnet schools. See Levine, supra, at 55-56.
After five years of vigorous litigation, the defendants were forced to agree to stop using
race to assign students to schools. See Ho, 59 F. Supp 2d at 1025 (approving settlement).
To prevent such discrimination from happening again, founding members of amici and
their constituents worked to pass Proposition 209, a voter initiative that added language to the
California Constitution prohibiting use of race in education. Cal. Const. Art. I § 31(a).
The remedy secured in Ho and prohibition on use of race of Section 31 remain under
attack by proponents of racial engineering. In 2014, California’s citizens of Asian descent were
forced to mobilize to defeat California Senate Constitutional Amendment No. 5 (“SCA-5”),
which would against have allowed use of race in public education. See “California Senate
Constitutional Amendment No. 5”, Wikipedia, available at: <https://en.wikipedia.org/

- 12 -

wiki/Senate_Constitutional_Amendment_No.5> (last checked 7/27/2018).

The unexpected

groundswell of opposition resulted in State Senator Ed Hernandez, the author of SCA-5,
withdrawing the bill from consideration on March 17, 2014.

Id.

See also Kate Murphy,

California Affirmative Action Revival Bill Is Dead (San Jose Mercury News, March 18, 2014) at
http://www.mercurynews.com/education/ci_25361339/california-affirmative-action-challenge-isdead? (last checked 7/27/2018). The slightest relaxing of vigilance, however, is likely to see this
bill revived. “‘I’d like to bring it back,’ Hernandez said. ‘I believe in it.’” Id.
VI.

THE PRESENT AND FUTURE OF LEGALIZED DISCRIMINATION AGAINST
ASIAN AMERICANS.
A.

Asian Americans as the “New Jews” in Higher Education.
In an eerie historical parallel, Asian American applicants to Harvard and other elite

colleges and universities today face the same formal and hidden quotas faced by Jewish
Americans who applied to Harvard College and other Ivy League colleges during the first half of
the 20th century. Beginning in the 1920s, Harvard College and other prominent colleges and
universities reacted to the perceived “over-representation” of Jews in their student bodies by
setting up quotas for applicants of the Jewish faith that persisted through the 1950s. See Evan P.
Schultz, Group Rights, American Jews, and the Failure of Group Libel Laws, 66 Brook. L. Rev.
71, 111-12 (Spring 2000); Alan M. Dershowitz and Laura Hanft, Affirmative Action and the
Harvard College Diversity-Discretion Model: Paradigm or Pretext, 1 Cardozo L. Rev. 379, 385399 (1979); Nathan Glazer, Diversity Dilemma, The New Republic (June 22, 1998). The result
was that, “[i]n the 1930s, it was easier for a Jew to enter medical school in Mussolini’s Italy than
in Roosevelt’s America.” Lawrence Siskind, Racial Quotas Didn’t Work in SF Schools, op-ed,
San Francisco Examiner (July 6, 1994),

found at http://heather.cs.ucdavis.edu/pub/

AffirmativeAction/Siskind.html (last visited 7/29/2018).5
5

The arguments supporting the historical and modern-day racial balancing schemes are virtually
identical. “President Lowell of Harvard called [the Jewish quota] a ‘benign’ cap, which would help the
University get beyond race.” Jerry Kang, Negative Action Against Asian Americans: The Internal
Instability Of Dworkin’s Defense Of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 36 (Winter 1996).
In the Ho case, proponents argued: “[T]he Chinese are the largest group at most of the best schools in the
city. They can’t have it all. If anything, I’d say lower the caps, don’t raise them—otherwise we’re

- 13 -

Quotas for Jewish students have since been eliminated, but similarly discriminatory
admissions programs have been implemented with Asian Americans as the disfavored group.
Many researchers have determined that Asian American applicants apply with the highest
academic credentials of any identified ethnic group to most top American universities, but meet
with by far the lowest acceptance rates, strongly suggesting the existence of de facto quotas for
Asian American applicants. See Jason P. Riley, The New Jews of Harvard Admissions (Wall
Street Journal, May 19, 2015); Daniel Golden, The Price of Admission: How America’s Ruling
Class Buys Its Way into Elite Colleges—and Who Gets Left Outside, Chapter 7: The New Jews
(Three Rivers Press, 2007); Ron Unz, The Myth of American Meritocracy: How Corrupt are Ivy
League

Admissions?,

pgs.

14-51

(The

American

Conservative,

Dec.

http://www.theamericanconservative.com/articles/the-myth-of-american-meritocracy/

2012),

at
(last

checked 7/27/2018). Examining admissions data from three elite public and four elite private
colleges, Princeton researchers found that Asian American applicants have 67% lower odds of
admission than white applicants with comparable test scores. See Thomas J. Espenshade and
Alexandra Walton Radford, No Longer Separate, Not Yet Equal: Race and Class in Elite College
Admission and Campus Life (Princeton University Press, 2009).
The discrimination against Asian American applicants is widespread. According to a
2016 survey conducted by Inside Higher Education, 42% of admissions officers from private
colleges and 39% of admissions officers from public colleges said that some colleges held Asian
headed back to segregated schools, only all Chinese instead of all white.” Selana Dong, “Too Many
Asians”: Challenge of Fighting Discrimination Against Asian-Americans and Preserving Affirmative
Action, 47 Stan. L. Rev. 1027, 1057 n.36 (May 1995) (citation omitted) (quoting Lulann McGriff, former
president of San Francisco NAACP); see also Levine, supra, at 138 (observing that to some, “the Ho case
is about how much is ‘enough’ for one racial or ethnic group”). And, today, the same arguments are used
to justify turning away Asian American individuals from the nation’s universities. See Glazer, supra;
Dong, supra, at 1057, nn.4-5; Leo Rennert, President Embraces Minority Programs, Sacramento Bee
(Metro Final) at A1 (April 7, 1995) (reporting that former President Clinton said that without race-based
admissions “there are universities in California that could fill their entire freshman classes with nothing
but Asian Americans”). “Today’s ‘damned curve raisers’ are Asian Americans ….” Kang, supra, at 47
n.189 (cites and internal quotation marks omitted). Again, mandated “diversity” is seen as the answer.
See Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L.
Rev. 1, 61-64 (Oct. 1994) (university quotas limit Asian American enrollment).

- 14 -

American applicants to higher standards, and 30% and 41%, respectively, indicated that was true
of their college.

Scott Jaschik, Pressure to Build the Class: 2016 Survey of Admissions

Directors, Inside Higher Education, September 22, 2016, found at https://www.insidehighered.
com/news/survey/pressure-build-class-2016-survey-admissions-directors (last visited 7/30/2018)
(results from 339 admissions directors or equivalent, responding in complete anonymity).
As history shows, artificial attempts to mandate a racially balanced student body
invariably require discrimination based on race. See Dershowitz & Hanft, supra, at 399 (“Both
then and now … such unlimited discretion makes it possible to target a specific religious or
racial group—then for decrease, and now for increase …”) Thus, as the Supreme Court stated in
Adarand Constructors v. Pena, 515 U.S. 200 (1995), there really can be no “benign” racial
classifications. “[A]ll governmental action based on race … should be subjected to detailed
judicial inquiry to ensure that the personal right to equal protection of the laws has not been
infringed.”

Id. at 227 (emphasis added).

The “rights created by the first section of the

Fourteenth Amendment are, by its terms, guaranteed to the individual.” Shelley v. Kraemer, 334
U.S. 1, 22 (1948) (emphasis added).
B.

The Burden Of Harvard’s “Handicapping” Falls Heaviest on Those Individuals
Least Able to Bear It.
The personal nature of the constitutional injury is particularly relevant here, because

Harvard’s admissions program, although obviously focused on maintaining a “balance” of ethnic
“groups,” always impacts individuals. In fact, perversely, the burden imposed by Harvard
“handicapping” Asian Americans falls heaviest on the most disadvantaged candidates identified
by Harvard as Asian American. 6 It can be no other way.

“A handicap race in horse racing is a race in which horses carry different weights,
allocated by the handicapper,” with the goal of equalizing chances of winning. Handicap (Horse
Racing), Wikipedia, found at https://en.wikipedia.org/wiki/Handicap_(horse _racing) (last
checked 7/27/2018). Leaving aside that horses are not protected by the Fourteenth Amendment,
the situation at the race track is actually more equitable, because the horses are allocated weights
based on prior individual performance in races, whereas at Harvard all Asian Americans are
allocated the handicap. (Plaintiffs’ Memo. at 7-10.)
6

- 15 -

Thus, it would be a mistake to reason that because Asian American applicants on the
average apply with higher average GPA’s and test scores, that conditions are merely being
“equalized” and no one is really being hurt. What actually happens is that the best prepared,
typically more socioeconomically advantaged Asian American candidates may still gain entry to
Harvard in spite of the ethnic handicap, but the more socioeconomically disadvantaged
candidates now stand little or no chance at all. While discrimination against individuals on the
basis of race is always wrong, it is particularly unfair to justify this unequal treatment by
assuming that all Asian Americans are advantaged, superbly well prepared and somehow deserve
to be handicapped vis-a-vis other candidates.
C.

The Terrible Effect on the Dignity and Self Worth of Asian Americans Who
Know They And Their Children Will Be Subjected To Unequal Treatment
Because of Their Race.
Discrimination against Asian Americans in education gives members of the Asian

American community the unfortunate perception that they are not considered as valuable as
individuals of other ethnic groups—and this harm extends much further than just the Asian
American students who fail to get into Harvard. If skin deep diversity is the controlling virtue
and determinant “achievement” in admissions, and being “diverse” in that way is an automatic
positive, then the opposite is also true. If Asian American children are not “diverse” because
they are Asian, then they are inferior based on their race.
As the Supreme Court warned, “it demeans the dignity and worth of a person to be
judged by ancestry instead of his or her own merit and essential qualities.” Rice v. Cayetano,
528 U.S. 495, 517 (2000). Classification by race, especially for purposes of scoring Asian
American candidates as deficient in Personal characteristics, as happens at Harvard and certain
other institutions, inevitably promotes feelings of “racial inferiority” and “racial hostility.” See
Richmond v. Croson, 488 U.S. 469, 493-94 (1989). Many of the members and constituents of
amici curiae were forced to go through admissions processes where academic programs declared
their Asian ethnicity less desirable because it was regarded as less “diverse.” They do not wish
for their children to be viewed as, or regard themselves as, inferior for the same unlawful reason.

- 16 -

In the San Francisco Ho case, the pernicious effects of racial classification on
schoolchildren was evident to all. As stated by the parent of one “Chinese” youth turned away
because of his ethnicity, “[h]e was depressed and angry that he was rejected because of his race.
Can you imagine, as a parent, seeing your son’s hopes denied in this way at the age of 14?”
Julian Guthrie, S.F. School Race-Bias Case Trial Starts Soon, San Francisco Examiner, at C-2
(Feb. 14, 1999).
As Lee Cheng, Secretary of AALF, testified in a written statement for hearings held by
the U.S. House of Representatives, Sub-Committee on the Constitution:
Many Chinese American children have internalized their anger and pain, confused
about why they are treated differently from their non-Chinese friends. Often they
become ashamed of their ethnic heritage after concluding that their unfair denial
is a form of punishment for doing something wrong.
Lee Cheng, Group Preferences and the Law, U.S. House of Representatives Sub-Committee on
the Constitution Hearings (June 1, 1995), p. 241, found at http://www.archive.org/stream/
grouppreferences00unit/grouppreferences00unit_djvu.txt (last checked 7/27/2018).
With college admissions, the same byproducts of racial discrimination are evident in the
Asian American community--even more so. Mixed-race families have learned to try to hide the
fact that one parent is Asian American, and college-admissions consultants openly tell their
clients that being Asian American is today a liability in the admissions process and advise them
on stratagems they can use in an attempt to mask their race:
“Brian Taylor is director of Ivy Coach, a Manhattan company that advises
families on how to get their students into elite colleges. A number of his clients
are Asian American, and Taylor is frank about his strategy for them. ‘While it is
controversial, this is what we do,’ he says. ‘We will make them appear less Asian
when they apply.’”
...
Chen founded Asian Advantage College Consulting 20 years ago in response to
what he considers bias against top Asian students in elite college admissions. His
firm, which is based in Alameda, Calif., also has clients on the East Coast, he
says, including Boston. “The admissions officers are seeing a bunch of people
who all look alike: high test scores, high grades, many play musical instruments
and tend not to engage in more physical sports like football,” Chen says. If
students come to him early in high school, Chen will direct them to “switch to

- 17 -

another musical instrument” or “play a sport a little bit out of their element.” And
for the college essay, don’t write about your immigrant family, he tells them . . .”
Bella English, To Get Into Elite Colleges, Some Advised To ‘Appear Less Asian,’ The Boston
Globe, June 1, 2015, found at https://www.bostonglobe.com/lifestyle/2015/06/01/ collegecounselors-advise-some-asian-students-appear-less-asian/Ew7g4JiQMiqYNQ
lIwqEIuO/story.html (last visited 7/30/2018). The Princeton Review advises Asian students
applying to selective colleges: “If you’re given an option, don’t attach a photograph to your
application and don’t answer the optional question about your ethnic background. This is
especially important if you don’t have an Asian-sounding surname. (By the same token, if you
do have an Asian-sounding surname but aren’t Asian, do attach a photograph).” Akane Otani,
Tips From the Princeton Review: Act Less Asian, Add Pics if You're Black, Bloomberg, Nov. 21,
2014, found at https://www.bloomberg. com/news/articles/2014-11-21/princeton-review-tellsasians-to-act-less-asian-and-black-students-to-attach-photos (last visited 7/29/2018).
Only Asian kids have to avoid being great violinists or pianists, or wanting to be doctors
or scientists, for fear of appearing “too Asian.” Only they are told that it might be fatal to their
chances to provide a photograph that shows their race. This cannot be right, or moral.
Filled with despair because they have learned and know they will be judged by a different
standard in the college admissions process, many aspiring Asian American students undertake
overwhelming study loads, literally working themselves into ill health. They suffer high rates of
anxiety and depression, and even increased suicide rates. See George Oiao, Why Are Asian
American Kids

Killing Themselves?

Plan A

Magazine, Oct. 3, 2017,

https://planamag.com/why-are-asian-american-kids-killing-themselves-477a3f6ea3f2

found at
(last

visited 7/29/2018) (“Asian American college students are 1.6 times more likely than all others to
make a serious suicide attempt.”); Unz, Ron, supra, The Myth of American Meritocracy, at 21
(“[T]hese leading academic institutions have placed a rather strict upper limit on actual Asian
enrollment, forcing these Asian students to compete more and more fiercely for a very restricted

- 18 -

number of openings…. When a far greater volume of applicants is squeezed into a pipeline of
fixed size, the pressure can grow enormously.”)
Many researchers have documented the pernicious effects that are felt throughout the
Asian American community:
The fear of self-identifying as Asian can affect one's racial/ethnic identity
development and have an impact on one's mental health. Asians who did not
possess a strong racial/ethnic identity rated lower scores on self-actualization and
acceptance (Iwamoto & Liu, 2010), reported lower self-esteem (Tummala-Narra,
Inman, & Ettigi, 2011), tended to have negative attitudes toward schooling, lower
academic achievement (Lee, 2009), and could not manage race-related stress well
(Yoo & Lee, 2005; Yip et al., 2008; Tummala-Narra et al., 2011). The denial of
Asian heritage may also lead to the denial of Asian values, which may create
cultural gaps and intergeneration conflict between the students and their parents
(Ahn, Kim, & Park, 2009; Park, Kim, Chiang, & Ju, 2010). The psychological
effects of this type of conflict include emotional distance between parents and
children, interpersonal problems, lack of self-confidence and assertiveness, high
suicidal risk, and anxiety and depression (Lee, Choe, Kim, & Ngo, 2000;
Lowinger & Kwok, 2001; Kuroki & Tilley, 2012).
Yii-Chen (Jenny) Wu, Admission Considerations in Higher Education Among Asian
Americans,

American

Psychological

Association,

found

at

http://www.apa.org/pi/

oema/resources/ethnicity-health/asian-american/article-admission.aspx (last checked 7/29/2018).
The situation creates a vicious cycle for many Asian-American students: The higher the
bar Harvard and other elite institutions raise for Asian-Americans, the more they have to study
and excel, relative to other applicants, in order to have the same chance at admission. Therefore,
Asian American students have to forego opportunities to pursue recreation and other
extracurricular interests. This vicious cycle forces Asian American students into behavior closer
to the negative stereotype that they are nothing but personality-less “nerds,” making it easier for
admissions officers to apply unfair stereotypes and deny them admission.
In the twenty-first century, American children simply should not need to feel
disadvantaged by or ashamed of their ethnic heritage, and they certainly should not be
disadvantaged in trying to get into school.

- 19 -

HARVARD’S COVERT PROGRAM OF DISCRIMINATION SHOULD BE
BROUGHT TO AN END.

VII.
A.

Hidden “Trade Secrets” Should Not Be Allowed to Justify Obvious
Discrimination.
Harvard has attempted to shroud the workings of its admissions process in secrecy,

claiming that its practices are protected as trade secrets.

(Dkt. 422 at 12-17.)

While the

argument is creative, Harvard’s desperate efforts to mask its illegal admissions practices should
be disregarded as a matter of public policy. Other attempts to assert trade secret protection to
conceal illegal acts have been condemned. See Randall Fitzgerald, The Hundred Year Lie, p. 24
(Dutton, 2006) (trade secret protection asserted to conceal presence of dangerous chemicals in
products); Peter S. Menell, Tailoring a Public Policy Exception to Trade Secret Protection, Cal.
L. Rev., Vol 105, Iss. 1, at 6 (Feb. 1, 2017), found at https://scholarship.law.berkeley.edu/
cgi/viewcontent.cgi?article=4346&context=californialawreview (last visited 7/29/2018) (tobacco
companies’ use of trade secret law in attempts to stifle revelations they lied to government).
Even if Harvard’s admissions data and information could meet the technical definition of a
protectable trade secret, when the commercial interest at stake implicates a violation of
fundamental constitutional rights, the lesser commercial rights should not be upheld as a matter
of public policy.
The discriminatory outcomes caused by Harvard’s admissions policies are an undisputed
matter of record. It is beyond reasonable dispute that anything other than the unlawful use of
race can be behind the observed results, or that the results are as Harvard planned and intended.
Unless Harvard is willing to let the light of day shine fully on its procedures and practices, so
that the public can determine for itself what happens behind closed doors, Harvard’s hidden
“trade secrets” should, at least, not be allowed to provide a defense for conduct that classifies
applicants by race in order to achieve an unconstitutional goal.
B.

Harvard Did Not Even Try to Use Race-Neutral Alternatives to Achieve Its View
of Diversity.
As Supreme Court jurisprudence teaches, even where racial diversity is a lawful goal, the

use of race to achieve that goal is allowed only where race-neutral alternatives have first been
- 20 -

explored. “[S]trict scrutiny imposes on the university the ultimate burden of demonstrating,
before turning to racial classifications, that available, workable race-neutral alternatives do not
suffice.” Fisher v. Univ. of Tex., 570 U.S. 297, 133 S. Ct. 2411, 2420 (2013).
Tellingly, Harvard did not even consider alternatives to its use of race until this case was
filed, if even then. (Plaintiffs’ Memo. at 42-44.) This failure is especially outrageous given that
Harvard is one of the wealthiest colleges in the world. With its reputation, resources and large
pools of qualified applicants for each of its classes, as well as the capability easily to reach out
and interest thousands of additional qualified candidates, Harvard should be able to do what less
well-endowed institutions have done. See Race-Neutral Alternatives in Postsecondary
Education: Innovative Approaches to Diversity, U.S. Department of Education Office for Civil
Rights,

March

2003,

found

at

https://www2.ed.gov/about/offices/list/ocr/edlite-

raceneutralreport.html (visited 7/29/2018). Harvard could have met permissible diversity goals
without resorting to racial discrimination. Instead, largely for expedience, it chose to use race in
the first instance rather than as a last resort, and in a manner that degrades all Asian Americans.
VIII. CONCLUSION.
The evidence is conclusive that Harvard classifies applicants by race to achieve its view
of proper ethnic balances in its student body. It is also clear that such racial discrimination
severely disadvantages individual Asian American applicants in the admissions process, while
stigmatizing and causing harm to the Asian American community.
Harvard may have benign or even benevolent motives for its admissions policies, but the
end result is still forbidden racial engineering. Over 60 years ago, in Brown v. Board of
Education, 347 U.S. 483, the Supreme Court recognized the inherent injury to individuals when
schools assigned students on the basis of race and found that it was unlawful, whatever the stated
purpose. That same reasoning should apply here today, to bring a halt to this pervasive and
blatant discrimination.
For the above reasons, the Court should grant summary judgment to Plaintiff.

- 21 -

Dated: July 30, 2018.

Respectfully submitted,
/s/ Marc J. Randazza
Marc J. Randazza (BBO# 651477)
Randazza Legal Group, PLLC
P.O. Box 5516
Gloucester, Massachusetts 01930
Tel: [phone]
Email: [e-mail]
Lee C. Cheng (pro hac vice pending)
Asian American Legal Foundation
11 Malta Street
San Francisco, CA 94131
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Asian American Legal Foundation
Gordon M. Fauth, Jr. (pro hac vice pending)
Litigation Law Group
1801 Clement Avenue, Suite 101
Alameda, CA 94501
Tel: [phone]
Fax: [phone]
[e-mail]
Counsel for Amici Curiae Asian American Legal
Foundation and Asian American Coalition for
Education

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Civil Action No. 1:14-cv-14176-ADB
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the CM/ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing and
paper copies will be sent to those indicated as non-registered participants on July 30, 2018.
/s/ Marc J. Randazza
Marc J. Randazza

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