SINCERE THANKS TO ATTORNEY CORY LIU: My general policy as a law professor is that I don’t write briefs in cases, as an amicus (“friend of the court”) or otherwise. If I wanted to be a lawyer, I would practice law.
A bit over two years ago, attorney Cory Liu contacted me and asked me if I was planning to write a brief urging the Supreme Court to hear the SFFA affirmative action cases. I explained my policy, noted above. Cory suggested that my emerging work on the arbitrariness of racial classifications, published in an article and in my then-forthcoming book, Classified, provided an important perspective on an issue that that the Court had largely ignored but needed to consider: not just whether affirmative action preferences served a compelling interest in the abstract, but whether the classifications used to grant or deny favorable treatment, such as “Hispanic” and “Asian,” were unduly arbitrary and failed to serve their purported purpose. Cory offered to write the brief with me as the named amicus, discussing my work. I agreed.
Once the Court agreed to hear the case on the merits, we filed another brief. As one of over 100 briefs filed in the case, I didn’t expect it to get any attention, and was pleasantly surprised when many articles on the case discussed this brief to the exclusion of almost all the others. Clearly, Cory and I had struck a nerve.
The fruits of Cory’s efforts were ultimately apparent in the Court’s opinions. Chief Justice Roberts, writing for the majority, stated that one reason Harvard and UNC’s policies were unlawful was that “it is far from evident … how assigning students to these racial categories and making admissions decisions based on them furthers the educational benefits that the universities claim to pursue. For starters, the categories are themselves imprecise in many ways. Some of them [such as Asian American] are plainly overbroad…. Meanwhile other racial categories, such as ‘Hispanic,’ are arbitrary or undefined.”
Roberts also cited Justice Gorsuch’s concurring opinion, which has an extensive discussion of the arbitrariness of the classifications. Gorsuch primarily relies on, and extensively cites, Cory’s amicus brief.
Justice Thomas, concurring, also citing Gorsuch, adds that “university admissions policies ask individuals to identify themselves as belonging to one of only a few reductionist racial groups…. Whichever choice he makes (in the event he chooses to report a race at all), the form silos him into an artificial category.”
In short, the Court’s majority has given potential litigants a new rationale for challenging affirmative action preferences and other uses of race in public policy; such preferences not only constitute illicit divvying up of opportunities by “race,” but the way they are divvied up is based on incoherent, arbitrary classifications that in most situations will be impossible to justify. Given the Court’s almost total reticence on this issue before SFFA, I doubt they would have reached it but for Liu’s efforts.