February 17, 2003

Brief Supports Affirmative Action

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Cornell joined the dozens of universities and corporations filing briefs with the Supreme Court in support of affirmative action last week. President Hunter R. Rawlings III announced Friday that the University filed a joint brief of amici curiae together with Columbia, Georgetown, Rice and Vanderbilt supporting the University of Michigan and the University of Michigan Law School’s race-conscious admissions policies.

The friend-of-the-court brief is one of many being filed by various institutions, organizations and Fortune 500 corporations. Some observers have predicted that the number of briefs could reach 100 by Tuesday’s deadline, one of the largest in support of one side in a Supreme Court case ever. By last week, about 12 briefs were filed against the University of Michigan Law School.

The Court will hear the Grutter v. Bollinger case in April, filed by white applicants against the law school’s point-based affirmative action practices. President-elect Jeffrey S. Lehman ’77, current dean of the University of Michigan Law School, is a named defendant in the case.

Cornell’s brief was filed jointly, while other schools such as Northeastern University will file separate briefs. Harvard is expected to file a brief before Tuesday together with other Ivy League schools. The Massachusetts Institute of Technology and Stanford University, along with the National Academy of Sciences, IBM and Du Pont, will also file jointly. Princeton and Dartmouth are still undecided on whether they will move to support Michigan’s policies.

According to Friday’s press release, the Cornell joint brief takes a different approach to supporting the defendants of the case, seeking to “set forth the First Amendment side of the equation.”

“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 brief states, noting that the law should give “a high level of deference to the good faith admissions decisions of public and private universities around the nation and the unconstitutional impact on academic freedom of any ruling failing to do so.”

In the press release, Rawlings emphasized that Ezra Cornell, founder of the University, wrote in 1868 that “I would found an institution where any person can find instruction in any study,” a motto which stands today on Cornell’s emblem.

“That vision of a diverse student body is no less important today, and it informs our strong support of affirmative action not only at Cornell but at other institutions of higher education across the nation,” Rawlings said.

Henrik N. Dullea ’61, vice president for University relations, said that Lehman’s appointment as Cornell’s next president was not a factor in Cornell’s motivation for filing the brief.

“This is an issue of great importance to institutions of higher education across the country,” he said. “Cornell is very proud of its affirmative action practices and policies, and we hope they will be affirmed by the Court.”

The joint brief uses an argument not advanced by the other amici, according to James J. Mingle, University counsel.

“Our purpose was to focus exclusively on this issue [of the First Amendment and academic freedom] that will complement the other arguments,” Mingle said. “The First Amendment and academic freedom we thought needed to be the focus.”

Cornell first approached Columbia regarding the brief, he said. The other three schools then showed interest and joined as amici curiae.

“I thought it would be good to align ourselves with other distinctive universities who share interest in the theory we have advanced,” Mingle said.

Dullea added that it was “desirable to have a small group of highly respected universities geographically dispersed across the country, with different characteristics.” He noted that Georgetown has a religious affiliation, and that Cornell is the only land-grant institution in the group.

Mingle and Dullea said that most friend-of-the-court briefs for this case were filed jointly.

The current legal justification for affirmative action is the 1978 California Regents v. Bakke case, which has been taken to mean that race can be used as a “plus factor” in admissions. In that Supreme Court case, a brief filed by Harvard was influential in the decision.

Lead counsel for the brief was Floyd Abrams of Cahill, Gordon and Reindel in New York City. He was not available for comment. Abrams worked with Mingle and the other schools to develop the brief.

Archived article by Andy Guess