Affirmative Action Brief
written 2023, last edit 2023, presented 2023
Chief Justice, and may it please the court, my name is Maria Kunigk-Bakalar and I am here on behalf of Harvard and University of North Carolina. The second issue presented before the court is the constitutionality of the consideration of race as a factor in admissions with respect to precedents and quota systems. The consideration of race in admissions has been shown to be consistent with the Equal Protection clause of the 14th amendment of the Constitution through precedent and we urge the court to adhere to those previously set precedents in Bakke, Grutter, and Fisher. Although in Bakke the court found issue in the admissions policy at the Medical School of the University of California at Davis, as it explicitly used a quota system, it did recognize the compelling state interest in educational diversity. The court found issue with the quota system specifically, ruling the policy could not be considered narrowly tailored so long as there were 100 available seats for minorities, and only 84 for whites. The court recognized the compelling interest, but rejected the execution. However, the court ruled that both Grutter and Fisher were constitutional. In Fisher the University of Texas at Austin argues its policy is very similar to the policy in Grutter. Both desire a diverse student body for the benefits recognized by the court, both aim for a ‘critical mass’ rather than using a quota system, and both emphasize that race has a potential role rather than an explicit one. Those key aspects are also enforced by the admission policies at Harvard and UNC. All four cases emphasize that race is not a determining factor, nor is it even always considered. Harvard repeatedly states that “it may be considered” and UNC points out that students “may indicate their race”, meaning it's not even required on the application. To uphold the precedent set in Bakke, Grutter and Fisher this court should rule that Harvard and UNC are also constitutional.
The argument has been made that Harvard and UNC’s processes are too similar to a quota system to be narrowly tailored, and are therefore unconstitutional. However, to be narrowly tailored, as defined in Grutter, the policy “cannot ‘insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants’” (Grutter) meaning an admissions policy may not use race as a deciding factor, or in such a way that admissions officers are not required to also consider the individual’s qualifications, and other holistic aspects. This obviously occurs in quota systems, like Gratz, where 20 of the 100 necessary points were awarded simply for being a minority, and Bakke, where 16 out of 100 seats are wholly set aside for minorities. However, aiming for a ‘critical mass’ rather than a specific quota allows for more holistic reviews and a focus on the individual by aiming for the benefits of diversity rather than a number. It ensures that the admission officers are only using race as one of the many potential factors considered, such as being a recruited athlete, living in state, or being a child of alumni, donors, faculty, or staff.
The purpose of affirmative action is to “place [each applicant] on the same footing for consideration, although not necessarily according them the same weight”. Looking around us we know this to be important. Not all applicants start off on the same footing, and should we ignore this truth, diversity would significantly decrease and we would not achieve the benefits already recognized by this court.
Chief justice, we ask that you recognize that Harvard and UNC’s admission policies have a compelling state interest, educational diversity, and that the policies are sufficiently narrowly tailored to the interest. We ask that you recognize that both institutions are searching for race neutral alternatives, but have not yet found a suitable replacement. Lastly, we ask that you adhere to this court's precedents. Considering these factors, we ask that you find the admission policies constitutional.
The argument has been made that Harvard and UNC’s processes are too similar to a quota system to be narrowly tailored, and are therefore unconstitutional. However, to be narrowly tailored, as defined in Grutter, the policy “cannot ‘insulat[e] each category of applicants with certain desired qualifications from competition with all other applicants’” (Grutter) meaning an admissions policy may not use race as a deciding factor, or in such a way that admissions officers are not required to also consider the individual’s qualifications, and other holistic aspects. This obviously occurs in quota systems, like Gratz, where 20 of the 100 necessary points were awarded simply for being a minority, and Bakke, where 16 out of 100 seats are wholly set aside for minorities. However, aiming for a ‘critical mass’ rather than a specific quota allows for more holistic reviews and a focus on the individual by aiming for the benefits of diversity rather than a number. It ensures that the admission officers are only using race as one of the many potential factors considered, such as being a recruited athlete, living in state, or being a child of alumni, donors, faculty, or staff.
The purpose of affirmative action is to “place [each applicant] on the same footing for consideration, although not necessarily according them the same weight”. Looking around us we know this to be important. Not all applicants start off on the same footing, and should we ignore this truth, diversity would significantly decrease and we would not achieve the benefits already recognized by this court.
Chief justice, we ask that you recognize that Harvard and UNC’s admission policies have a compelling state interest, educational diversity, and that the policies are sufficiently narrowly tailored to the interest. We ask that you recognize that both institutions are searching for race neutral alternatives, but have not yet found a suitable replacement. Lastly, we ask that you adhere to this court's precedents. Considering these factors, we ask that you find the admission policies constitutional.