Dartmouth urged the U.S. Supreme Court yesterday to reassert its 1978 decision allowing race to be considered as one factor in admissions decisions. The amicus, or "friend of the court" brief was authored by Harvard Law Professor Laurence Tribe and filed jointly by Dartmouth and seven other schools in support of University of Michigan in the two cases against Michigan currently before the Supreme Court.
The brief defends the decision reached by the Supreme Court in Regents of University of California v. Bakke, the 1978 case that set a precedent permitting universities to consider racial and ethnic diversity in the admissions process. According to the brief, the eight universities sponsoring the brief and other selective institutions have "built their communities mindful of the pedagogical value of multiracial diversity in educational programs" in the 25 years since Bakke.
In addition to Dartmouth, the contributing universities included Harvard, Chicago, Duke, Brown, Pennsylvania, Princeton and Yale. The two Ivy League schools that did not contribute to the brief, Cornell and Columbia, filed a separate brief last Thursday in conjunction with Georgetown, Rice and Vanderbilt.
In the Bakke case, the Court ruled against the University of California at Davis Medical School's admissions system on the grounds that its allocation of 16 of 100 entering places for non-white students was unlawful. Justice Lewis Powell submitted the tie-breaking vote and held that colleges could consider race as one factor, alongside other factors, in admissions decisions.
Consequently, Powell implicitly reaffirmed the decision made in the 1957 case Sweezy v. New Hampshire, which advanced the idea that academic freedom is protected under the First Amendment and includes "four essential freedoms of a university." These include the rights to "determine for itself on academic grounds who may teach, what may be taught, how it shall be taught and who may be admitted to study," according to the Sweezy decision.
The eight-college brief encourages the court to adhere to the Bakke decision, claiming that "different universities should be free to craft their own distinctive approaches," and that admissions policies since the Bakke decision "have served compelling pedagogical interests by contributing to a diverse and inclusive educational experience, teaching students to view issues from multiple perspectives, and helping to break down prejudices and stereotyped assumptions."
"A decision reaffirming Bakke would in effect approve of the admissions policies of these eight schools and many other institutions that use race as a factor alongside other factors in admission," Donin said.
In addition to presenting a compelling case in support of the benefits of race as a factor in admissions, the brief directly responds to arguments made by members of the opposition. The brief rejects the argument that race-based admissions foster the development of stereotypes, countering that "far from reflecting and perpetuating stereotypes" the admissions policies of the schools are "consciously designed to dissolve them."
The brief also responds to opponents that support the use of so-called "race-neutral" admissions policies, a belief espoused by the Department of Justice brief filed last month on behalf of President George W. Bush. The Harvard, Dartmouth et al. brief calls such alternatives "fundamentally incompatible with the commitment to consider each applicant on his or her individual merit. Whatever strict scrutiny properly requires, it should not force universities to achieve vital interest (racial diversity) to the exclusion of another (treatment of students as individuals) and thereby compromise the constitutional imperative of academic freedom."
The brief comes just weeks after reports from the Harvard University civil rights project determined that race-neutral "percentage plans" in California, Texas, and Florida -- where a certain percentage of graduates from each high school are guaranteed admission to state universities -- have been unsuccessful in increasing diversity in lieu of active affirmative action.
"The brief did an effective job demonstrating that those techniques do not work for most colleges and universities," Donin said. "Institutions such as Dartmouth are educating the next generation of leaders for America and universities cannot effectively prepare students for leadership in a pluralistic society without a diverse student body."
As the brief described, "diversity helps students confront perspectives other than their own and thus to think more rigorously and imaginatively; it helps students learn to relate better to people from different backgrounds; it helps students become better citizens."
The brief filed on behalf of Cornell, Columbia, and three other universities was more specific in its arguments, though it too supported the University of Michigan. That brief followed a "relatively unique tact," according to Cornell University Counsel James Mingle, because it focused exclusively on the First Amendment rights of universities, as sited in Sweezy.
"In the course of the wrenching legal and public policy debate about university admission policies that take account of race to some degree or other, little has been said about the First Amendment rights of the universities themselves," the Cornell brief states. "Academic freedom has frequently been said by this Court to be a 'special concern of the First Amendment' and the right of a university to determine whom to admit has been said to constitute a central element of academic freedom."
Mingle said Cornell began looking into filing a brief several weeks ago and that he thought the very specific focus on First Amendment rights "would be a distinctive element to develop to complement and bolster other arguments. It was designed really to complement the Harvard et al. brief."
Dartmouth's brief also stressed First Amendment rights, but did not limit its arguments to the Constitution.
"It is vital that the Constitution be understood to protect, not to eviscerate, the capacity of universities thoughtfully to determine how to fulfill their profound responsibility: educating a diverse array of talented students to reason rigorously, to bridge differences both real and imagined and to emerge as effective citizens and leaders in a multiracial society," the report contended.
In a speech last month at a Martin Luther King weekend event President Wright committed his support to the use of race as a factor in admissions, acknowledging that even if the Supreme Court were to rule against such a policy Dartmouth would find other ways to maintain diversity.
"If the Supreme Court rules against the University of Michigan and even goes so far as to overturn the Bakke decision, we will need to look for ways, within the law, to ensure that the diversity of the campus and the educational benefits that flow from that diversity are not lost," Wright said. "Our commitment to this preceded any federal or state programs or mandates; this commitment will be sustained in the absence of these if, unfortunately, this becomes necessary."
