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Proskauer Files Amicus Brief in Pending Supreme Court Affirmative Action Cases


Earlier this month, Proskauer submitted an amicus curiae brief on behalf of a group of 33 elite liberal arts college and universities in two cases pending before the U.S. Supreme Court concerning the constitutionality of affirmative action in college admissions. The petitioners in each case (one challenging Harvard’s admissions process, the other the University of North Carolina’s) contend that consideration of race in admissions violates Title VI of the Civil Rights Act and the Fourteenth Amendment of the Constitution, respectively. They ask the Court to invalidate those policies and overrule a long line of Supreme Court precedent, starting with Regents of University of California v. Bakke, 438 U.S. 265 (1978), and reaffirmed in Grutter v. Bollinger, 539 U.S. 306 (2003), and Fisher v. University of Texas, 579 U.S. 365 (2016).

The amicus brief submitted by Proskauer argues that achieving student-body diversity is a compelling interest for institutions of higher education and race-conscious admissions policies are necessary to achieve it. Indeed, studies have consistently shown that diversity—including racial diversity—meaningfully improves learning experiences, complex thinking, and non-cognitive abilities. Diversity also generates pedagogical innovations and decreases prejudice. These benefits are especially pronounced at liberal arts colleges and small universities, where smaller class sizes lead to greater engagement among diverse students. The brief warns that overturning such deeply entrenched precedent will have a detrimental effect on admissions programs in higher education nationwide, and especially at small, selective private colleges and universities that have relied on and applied Bakke, Grutter, and Fisher faithfully and successfully for decades.

Proskauer also argues that—contrary to the plaintiffs’ assertions—the guidelines laid out in Grutter are workable and are in fact applied correctly by schools across the country. The brief shows that Grutter laid out clear guidance for college admissions programs by requiring that schools use race only as part of a holistic assessment of an individual, not as a “plus” factor or as part of a quota system. The brief explains how Amici apply those guidelines; they strive to understand the individual as a whole, and to do so, must sometimes consider an individual’s race. Finally, the Proskauer team argues that the schools have built up substantial reliance interests on the Supreme Court’s prior precedent, and to overturn that precedent now would be detrimental to their admissions programs, recruitment efforts, and curricula.

The Court is set to hear arguments in both cases on October 31, 2022. 

Proskauer’s team included litigation partners Mark Harris and John Roberts, litigation associates Joe Hartunian, Lucas Kowalczyk, and Shiloh Rainwater, and senior litigation paralegal Angelo Monforte.


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