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 head of the White Collar Defense & Investigations Group and co-head of the Appellate Group. Mark is also a former federal prosecutor and law clerk at the U.S. Supreme Court. An experienced white-collar criminal defense lawyer, he represents companies and…

Mark Harris is head of the White Collar Defense & Investigations Group and co-head of the Appellate Group. Mark is also a former federal prosecutor and law clerk at the U.S. Supreme Court. An experienced white-collar criminal defense lawyer, he represents companies and individuals in their most complex and difficult litigation matters.

Mark’s appellate cases span the gamut from intellectual property and labor relations to constitutional law and administrative law. Since 2017, Mark has represented the Financial Oversight and Management Board for Puerto Rico—the entity created by Congress to oversee Puerto Rico’s bankruptcy, the largest in American history—in dozens of appeals before the U.S. Court of Appeals for the First Circuit. In May 2023, he prevailed before the Supreme Court in an 8-1 decision that recognized the Board’s immunity from suit. He is a Fellow of the American Academy of Appellate Lawyers and a past American Lawyer Litigator of the Week.

Mark also maintains an active criminal docket in cases covering every form of financial crime and civil enforcement, including internal investigations. Clients draw on his experience as a former Assistant U.S. Attorney for the Southern District of New York, where he specialized in fraud cases and tried cases before federal juries. Mark is also a recognized expert on criminal sentencing, as a member of the Board of Editors of the Federal Sentencing Reporter, the leading legal journal devoted to the study of sentencing law and policy, for over 25 years.

Mark is the editor and lead author of Principles of Appellate Litigation: A Guide to Modern Practice (PLI Press), a comprehensive treatise on appellate practice, updated every year, which has been described as “invaluable,” “the product of deep experience and keen insights,” and “a superior appellate practice hornbook.”

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. Mark has been interviewed by Bloomberg Radio, the National Law Journal, WINS AM-1010, Law360Legal Times, and other news organizations.

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. He is a graduate of Harvard College and Harvard Law School, where he was a member of the Harvard Law Review. He also serves on the Board of Trustees of the National Museum of Mathematics.