Initial Points and Authorities Brief Format

1. The case you primarily rely upon (the case you cite as “controlling”);

2. The rule in that case (1) that is most favorable to your client and (2) that you want the Supreme Court to apply in your case;

3. Demonstrations that the facts in our hypothetical satisfy each of the elements of the rule that you have selected by stating “Here . . . . Here . . . . “ and so on, as we did for the John Doe v. United States case back on February 12^th.

Points and Authorities Brief Format

1. Controlling Case: (The case you primarily rely upon; this is the case you cite as “controlling”);

For the “Controlling Case,” write “West Central Dixie State University—or The Sons of the Confederacy—or The Asian Society” [WHICHEVER PARTY YOU ARE REPRESENTING!] argues that [name and citation of a case] is the controlling precedent in this litigation.”

2. Rule: (The rule in that case (1) that is most favorable to your client and (2) that you want the Supreme Court to apply in your case. State it specifically and precisely.)

3. Argument: (Demonstrations that the specific, detailed facts in our hypothetical satisfy each of the elements of the rule that you have selected by stating “Here . . . . Here . . . . “ and so on.) The facts are such things as the segregated dorms, the separate deans for different minorities, the Dean’s statement of the rationale for the policy, and so on.

Rules

Grutter (2003): [T]oday we endorse Justice Powell's view [in Bakke] that student body diversity is a compelling state interest that can justify the use of race in university admissions.

We have held that all racial classifications imposed by government "must be analyzed by a reviewing court under strict scrutiny." [Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995)] This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.

When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.

Gratz (2003): It is by now well established that "all racial classifications reviewable under the Equal Protection Clause must be strictly scrutinized." [Adarand]. This "'standard of review . . . is not dependent on the race of those burdened or benefited by a particular classification.'" Ibid.

To withstand our strict scrutiny analysis, respondents must demonstrate that the University's use of race in its current admissions program employs "narrowly tailored measures that further compelling governmental interests."

Fisher I (2013): Grutter made clear that racial “classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” 539 U. S., at 326. And Grutter endorsed Justice Powell’s conclusion in Bakke that “the attainment of a diverse student body . . . is a constitutionally permissible goal for an institution of higher education.” 438 U. S., at 311–312 (separate opinion). Thus, under Grutter, strict scrutiny must be applied to any admissions program using racial categories or classifications.

Fisher II (2016): Fisher I set forth three controlling principles relevant to assessing the constitutionality of a public university’s affirmative-action program. [Bold and underline added] First, “because racial characteristics so seldom provide a relevant basis for disparate treatment,” Richmond v. J. A. Croson Co.,488 U. S. 469,505 (1989), “[r]ace may not be considered [by a university] unless the admissions process can withstand strict scrutiny,” Fisher I, 570 U. S., at ___ (slip op., at 7). Strict scrutiny requires the university to demonstrate with clarity that its “ ‘purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.’ ” Ibid.

Second, Fisher I confirmed that “the decision to pursue ‘the educational benefits that flow from student body diversity’ . . . is, in substantial measure, an academic judgment to which some, but not complete, judicial deference is proper.” Id., at ___ (slip op, at 9). A university cannot impose a fixed quota or otherwise “define diversity as ‘some specified percentage of a particular group merely because of its race or ethnic origin.’ ” Ibid. Once, however, a university gives “a reasoned, principled explanation” for its decision, deference must be given “to the University’s conclusion, based on its experience and expertise, that a diverse student body would serve its educational goals.” Ibid. (internal quotation marks and citation omitted).

Third, Fisher I clarified that no deference is owed when determining whether the use of race is narrowly tailored to achieve the university’s permissible goals. Id., at ___ (slip op., at 10). A university, Fisher I explained, bears the burden of proving a “nonracial approach” would not promote its interest in the educational benefits of diversity “about as well and at tolerable administrative expense.” Id., at ___ (slip op., at 11) (internal quotation marks omitted). Though “[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative” or “require a university to choose between maintaining a reputation for excellence [and] fulfilling a commitment to provide educational opportunities to members of all racial groups,” Grutter, 539 U. S., at 339, it does impose “on the university the ultimate burden of demonstrating” that “race-neutral alternatives” that are both “available” and “workable” “do not suffice.” Fisher I, 570 U. S., at ___ (slip op., at 11).

Inferred Rule: When evaluating whether college policies designed to remedy racial discrimination violate the Equal Protection Clause of the Fourteenth Amendment, (1) strict scrutiny must be applied to all race-based classifications and policies; (2) the use of race-based classifications must be narrowly tailored to further compelling state interests; and (3) student body diversity is a compelling state interest.

Reply Brief Format

What you say depends on what is in the other brief: yours replies to it.

Since we are dealing with a narrow range of rules (actually just one three-part rule) your brief must plausibly criticize the other party’s argument(s) applying its rule to (1) the purpose of, or rationale for, the policy of positive segregation, or (2) whether the policy is “narrowly tailored” to avoid unnecessary infringement on the protected liberties of non-minorities.

Begin each of your counter-arguments with some statement like “1. [Opponent party’s] assertion that the university policy is/is not a reasonable means of accomplishing a compelling state interest is/is not correct.” Then in a sentence or two, state your reason(s) for your assertion.

Address each of your opponent’s arguments in this way.

If your opponent cited one of the rules above as controlling, but said nothing about the purpose of the policy or about whether the university policy is “narrowly tailored,” bring that omission to the attention of the court.

If your opponent did not cite a strict scrutiny standard at all, then bring to the court’s attention the strict scrutiny rule that you relied on in your original brief.