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Affirmative Action

  • Fisher v. University of Texas (S. Ct.) - Amicus
    • The United States has a compelling interest in the educational benefits of diversity
    • The University of Texas' use of race in freshman admissions to achieve the educational benefits of diversity is constitutional

     
    Document Date 
    Supreme Court Decision, 133 S. Ct. 2411 06/24/13
    Brief as Amicus 08/13/12
  • American General Contractors v. California Department of Transportation (9th Cir.) – Amicus
    • AGC lacks standing to challenge Caltrans' program
    • Caltrans' program, which implements the U.S. Department of Transportation's DBE program, does not violate the constitutional rights of non-minority business owners
    • A State that produces a sound and thorough statistical analysis revealing underutilization of DBEs in a jurisdiction, and then crafts a program responding to those disparities, needs to show nothing more to satisfy narrow tailoring

     
    Document Date 
    Court of Appeals Decision, 713 F.3d 1187 04/16/13
    Brief as Amicus 02/09/12
  • Doe v. Lower Merion School District (3d Cir.) – Amicus
    • Strict scrutiny did not apply to the school district's consideration of neighborhood racial demographics in order to promote diversity and avoid racial isolation, as per Justice Kennedy's concurrence in Parents Involved

     
    Document Date 
    Court of Appeals Decision [PDF], reported at 665 F.3d 524 12/14/11
    Brief as Amicus [PDF] 02/02/11
  • Rothe Development Corporation v. Department of Defense and Department of the Air Force (S. Ct.) – Respondent
    • District court’s analysis under established precedent was correct: petitioner argues that a more heightened standard than the “substantial justification” language in EAJA should apply where the government loses in a case defending the constitutionality of the use of racial criteria in a federal program

     
    Document Date 
    Certiorari Denied, 131 S. Ct. 907 1/10/11
    Brief in Opposition to Petition for Writ of Certiorari 12/01/10
  • Kevcon, Inc. v. United States (Fed. Cl.) – Defendant
    • Congress continues to have a substantial basis in evidence for believing that racial discrimination in federal contracting remains a serious problem
    • Congress has a compelling interest in addressing the past and present effects of this discrimination
    • Section 8(a) is a narrowly tailored method of promoting this interest

     
    Document Date 
    Cross-Motion For Judgment Upon The Administrative Record [PDF] 05/14/10
  • Fisher v. University of Texas (5th Cir.) -- Amicus
    • The court should defer to many of the findings underlying the University's determination, such as its assessment of how much diversity is required for it to accomplish its mission, but that the court should "independently review" the ultimate conclusion that the University lacked sufficient diversity
    • That, applying that standard to the record in this case, the court should uphold the University's determination
    • The University has a compelling interest in achieving a diverse student enrollment, and its limited use of race in freshman admissions is narrowly tailored to further that interest

     
    Document Date 
    Court of Appeals Decision , 758 F.3d 633 07/15/14
    Supplemental Brief as Amicus 11/01/13
    Court of Appeals Decision [PDF], reported at 631 F.3d 213 01/18/11
    Brief as Amicus [PDF] 03/12/10
  • Rothe Development Corp. v. United States Department of Defense (5th Cir./Fed. Cir.) -- Appellee
    • The district court appropriately granted DOD’s motion for summary judgment because the court carefully evaluated the legislative record and correctly found Congress had a strong basis in evidence for the legislation, and correctly found that the DOD program is narrowly tailored
    • Congressional program authorizing affirmative action in defense contracting satisfies strict scrutiny
    • This case is not justiciable, and this court has no jurisdiction to entertain this appeal because this case is moot, Rothe lacks standing to maintain this lawsuit, and if Rothe has any claims, they are not ripe
    • If any of Rothe's claims are justiciable, this court should remand the case for further findings and additional development of the evidentiary record
    • Rothe has not properly preserved its challenge to the district court's denial of attorney's fees
    • The district court correctly denied Rothe's application for attorney's fees under the Equal Access to Justice Act, because the government was substantially justified in defending the constitutionality of Section 1207 of the National Defense Authorization Act, 10 U.S.C. 2323

     
    Document Date 
    Summarily Affirmed 05/04/10
    Brief as Appellee 02/05/10
    Court of Appeals Decision, reported at 545 F.3d 1023 11/04/08
    Brief as Appellee 03/17/08
    Brief as Appellee [HTML]  [PDF] 10/20/99
    Court of Appeals Decision [PDF], reported at 194 F.3d 622 10/27/99
    Motion to Lift Stay [HTML] 01/14/00
    Court of Appeals Decision, reported at 262 F.3d 1306 08/20/01
    Brief as Appellee [PDF] 12/08/04
    Court of Appeals Decision [PDF], reported at 413 F.3d 1327 06/28/05
  • Western States Paving Co. v. United States & Washington State Department of Transportation (9th Cir.) -- Appellee
    • The district court correctly determined that TEA-21 and DOT's DBE regulations are facially constitutional

     
    Document Date 
    Brief as Appellee[PDF] 04/19/04
    Court of Appeals Decision [PDF], reported at 407 F.3d 983 05/09/05
  • Gross Seed Co. v. Nebraska Dep't of Roads & United States (8th Cir.) -- Appellees
    • The district court correctly determined that the federal DBE program is facially constitutional
    • The district court correctly determined that the federal DBE program is constitutional as applied

     
    Document Date 
    Brief as Appellees [PDF] 01/10/03
    Court of Appeals Decision [PDF], reported at 345 F.3d 964 10/06/03
  • American Federation of Government Employees v. United States (D.C. Cir.) -- Defendants-Appellees
    • The contracting provision in section 8014(3) directed at companies owned by members of federally recognized Native American tribes and tribal entities does not violate the equal protection guarantee of the Fifth Amendment
    • Section 8014(3) does not violate the plaintiffs' due process rights under the Fifth Amendment to the Constitution

     
    Document Date 
    Brief as Defendants-Appellees[PDF] 01/10/03
    Court of Appeals Decision [PDF], reported at 330 F.3d 513 06/06/03
  • Sherbrooke Turf, Inc. v. Minnesota Department of Transportation, et al. (8th Cir.) -- Appellee
    • Sherbrooke has standing to challenge the DBE program
    • District court correctly concluded that recipients of TEA-21 financial assistance need not independemtly satisfy satisfy strict scrutiny
    • District court correctly determined that the federal DBE program is facially constitutional

     
    Document Date 
    Brief as Appellee[PDF] 07/15/02
    Court of Appeals Decision [PDF], reported at 345 F.3d 964 10/06/03
  • Scott v. Pasadena Unified School District (9th Cir.) -- Amicus
    • School district's decision to examine the racial composition of the applicant pool in deciding whether to take race into account in the selection of students not subject to strict scrutiny

     
    Document Date 
    Brief as Amicus [HTML]  [PDF] 09/15/00
    Court of Appeals decision [PDF], reported at 306 F.3d 646 09/04/02
  • Concrete Works of Colorado, Inc. v. City and County of Denver (10th Cir.) -- Amicus
    • In subjecting local affirmative action plan to strict scrutiny, district court erred in presuming, without supporting empirical data, that numerous statistical studies, demonstrating a substantial underutilization of minority- and women-owned businesses as compared to their numbers in the local market, were unreliable merely because the studies failed to account for certain variables

     
    Document Date
    Brief as Amicus [HTML] 07/13/00
    Court of Appeals decision [HTML], reported at 321 F.3d 950 02/10/03
  • Brennan v. New York City Board of Education (2d Cir.) -- Appellee
    • Showing of compelling interest to warrant the use of race-based remedial measures can be satisfied upon some showing of prior discrimination by the governmental unit involved
    • Showing that a challenged employment procedure has a significant disparate impact is a sufficiently firm basis for adopting narrowly tailored race-conscious remedial measures
    • Providing retroactive seniority to a small class of qualified individuals is narrowly tailored relief

     
    Document Date 
    Brief as Appellee [HTML] [PDF] 06/26/00
    Court of Appeals decision [PDF], reported at 260 F.3d 123 08/03/01
  • Belk v. Charlotte-Mecklenburg Board of Education (4th Cir.) -- Amicus
    • In determining whether school district is "unitary," district court must make findings that closely assess whether the school system fully complied with prior federal court orders
    • School district may consider race as one factor in its admissions decisions
    • Maintaining an integrated school system is a national policy sufficiently important to be deemed compelling

     
    Document Date 
    Brief as Amicus [HTML]  [PDF] 03/08/00
    Court of Appeals decision [HTML]  [PDF], reported at 233 F.3d 232 11/30/00
    Petition for Rehearing En Banc granted 01/17/01
    En Banc decision [HTML]  [PDF], reported at 269 F.3d 305 09/21/01
  • City of San Jose v. Hi-Voltage Wire Works, Inc. (Supreme Court of California) -- Amicus
    • Where a municipality can identify its own race discrimination, it has not only the power but the duty under the federal constitution and statutes to eradicate the effects of that discrimination
    • Where race-neutral means prove unsuccessful in remedying the effects of race discrimination, race-based measures must be used as a last resort to remedy fully the effects of past discrimination
    • State law prohibiting use of race-based remedies under all circumstances will be preempted when U.S. Constitution or federal statutes requires such remedies

     
    Document Date 
    Brief as Amicus [HTML]  [PDF] 01/04/00
    Court of Appeals Decision, reported at 101 Cal. Rptr.2d 653 11/30/00
  • Smith v. University of Washington Law School (9th Cir.) -- Amicus
    • University may consider race as one factor in its admissions decisions in order to enroll a diverse student body

     
    Document Date 
    Brief as Amicus [HTML]  [PDF] 09/16/99
    Court of Appeals decision [PDF], reported at 233 F.3d 1188 12/04/00
  • Brewer v. West Irondequoit Central School District (2d Cir.) -- Amicus
    • School districts have a compelling interest in reducing racial isolation in elementary and secondary schools
    • Race-conscious transfer policy narrowly tailored when race-neutral assignment policies have been insufficient to reduce or halt increasing levels of racial isolation

     
    Document Date 
    Brief as Amicus [HTML]  [PDF] 04/22/99
    Court of Appeals Decision [HTML], reported at 212 F.3d 738 05/11/00
  • Eisenberg v. Montgomery County Public Schools (4th Cir.) -- Amicus
    • School districts have a compelling interest in reducing racial isolation in elementary and secondary schools
    • Race-conscious transfer policy narrowly tailored when race-neutral assignment policies have been insufficient to reduce or halt increasing levels of racial isolation

     
    Document Date 
    Brief as Amicus [HTML]  [PDF] 01/19/99
    Court of Appeals Decision [HTML]  [PDF], reported at 197 F.3d 123 10/06/99
    Petition for Certiorari denied, reported at 529 U.S. 1019 03/20/00
  • Tuttle v. Arlington County School Board (4th Cir.) -- Amicus
    • School districts have a compelling interest in promoting racial integration in elementary and secondary schools
    • Use of family income or students' first language as criteria in the selection of students does not trigger strict scrutiny unless school district intended to use a proxy for race or national origin

     
    Document Date 
    Brief as Amicus [HTML]  [PDF] 07/21/98
    Court of Appeals Decision [HTML]  [PDF],  reported at 195 F.3d 698 11/01/99
    Petition for Certiorari dismissed, reported at 529 U.S. 1050 03/28/00


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Diana K. Flynn
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Amicus curiae suggestions may be submitted to crt.amicus@usdoj.gov. Submissions should include case name, docket number, circuit/district court name, a brief description of the case and issue, and the current status if known.

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