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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Photo of Mark Harris Mark Harris

Mark Harris is a partner in the Litigation Department, co-chair of the Appellate Practice Group, and a member of the Securities Litigation and White Collar Defense & Investigations Groups.  He represents institutional and individual clients in both civil and criminal litigations.

Mark is…

Mark Harris is a partner in the Litigation Department, co-chair of the Appellate Practice Group, and a member of the Securities Litigation and White Collar Defense & Investigations Groups.  He represents institutional and individual clients in both civil and criminal litigations.

Mark is a former clerk to U.S. Supreme Court Justices John Paul Stevens and Lewis Powell, Jr., and Judge Joel Flaum of the U.S. Court of Appeals for the Seventh Circuit. Mark subsequently served as an Assistant U.S. Attorney for the Southern District of New York, during which he prosecuted a broad spectrum of federal crimes, including health-care fraud, financial fraud, and corporate embezzlement, and tried a number of jury trials and argued before the Second Circuit.

Mark has handled dozens of cases in the U.S. Supreme Court and other appellate courts in a variety of areas spanning criminal law, patent, copyright, labor relations, and administrative law, including:

  • Representing Biosig Instruments before the U.S. Supreme Court and the Federal Circuit, in a case that redefined the standard for patent definiteness and upheld the validity of Biosig’s patent.  He was named The American Lawyer’s Litigator of the Week for that result.
  • Obtaining reversal of the trial conviction of a former Gen Re executive in the Second Circuit.

  • Persuading the Second Circuit via a petition for interlocutory review and merits brief to vacate a class-certification order entered against Sprint Corporation.

  • Successfully representing electronic publishers before the U.S. Supreme Court in Reed Elsevier Inc. v. Muchnick, which Managing Intellectual Property Magazine named the 2010 “U.S. Copyright Case of the Year.”

  • Successfully representing an employer before the U.S. Supreme Court in 14 Penn Plaza LLC v. Pyett, which overturned 35 years of precedents concerning the enforceability of arbitration clauses in labor agreements.

Mark has handled numerous matters involving securities fraud, tax evasion, insurance fraud, and a variety of financial crimes. Significant representations have included the following:

  • John and Timothy Rigas, principals of Adelphia Communications Corp., at their resentencing and before the Second Circuit.
  • The president of a major international company whom federal authorities sought to extradite for tax offenses allegedly committed in the United States.

  • The former CEO of Princeton Economics International, whose release Mark helped win from the longest term of federal civil contempt in U.S. history.

  • An investor charged with securities fraud involving the conversion of a mutual savings bank to a capital stock bank.

Since 1996, Mark has been a member of the Board of Editors of the Federal Sentencing Reporter and a frequent contributor. His work on behalf of non-U.S. clients was featured in the American Lawyer’s 2006 Litigation supplement. He has lectured on both criminal law and appellate practice before the International Bar Association, the National Association of Criminal Defense Lawyers, PLI, and the ABA Sections of Litigation, Criminal Law, and Employment and Labor Law, and has been interviewed by Bloomberg Radio, the National Law Journal, WINS AM-1010, Law360Legal Times, and other news organizations.

He also serves on the Board of Trustees of the National Museum of Mathematics.