Penn files amicus brief in support of race-based affirmative action


The University co-signed with other Ivy League institutions in the upcoming Supreme Court case Fisher v. University of Texas at Austin




Penn affirmed its commitment to race-based affirmative action earlier this month, as the school co-signed an amicus curiae brief in support of the University of Texas’ affirmative action policy.

UT’s policy is under scrutiny in Fisher v. University of Texas at Austin, an upcoming Supreme Court case involving Abigail Fisher, a white student who was denied admission to the university. Fisher is arguing that the school’s policy of using race as a consideration in admissions decisions violates the Equal Protection Clause of the 14th Amendment to the Constitution. Oral arguments in front of the court are scheduled for Oct. 10.

Penn joined the seven other Ivy League institutions, along with other highly selective schools like Duke and Stanford universities, in submitting the brief arguing that race-based affirmative action is crucial to ensuring a diverse student body, and that diversity is a compelling interest in students’ educational experiences.

“Penn does not often, but does from time to time, join with our peers to file amicus briefs in the U.S. Supreme Court on issues of major significance to Penn and the higher education community,” Penn Senior Vice President and General Counsel Wendy White said in an email. “I believe our brief does an excellent job of explaining the importance of diversity to Penn and higher education.”

Many Supreme Court experts believe the justices will strike down UT’s policy as unconstitutional, shifting away from previous judicial precedent that schools may take race into account in admissions decisions.

By preventing schools from enrolling a diverse student body, some believe that the Court’s strike down would be detrimental to students.

“As someone who has been teaching in highly selective universities for over 30 years, we provide a much better education than we did in the era before affirmative action,” said political science professor Rogers Smith, who specializes in constitutional law. “To say it’s unconstitutional, it will send a signal that efforts to promote greater racial and ethnic inclusion in many forms of life are in constitutional jeopardy.”

A shift in the court’s stance on affirmative action could also come as a shock to Penn, which may be forced to substantially alter its policy of valuing diversity in admitted classes. Penn currently uses race as a factor in a holistic review process of applicants.

Dean of Admissions Eric Furda stressed that this commitment to diversity matters to students, and not just in terms of percentages.

“We’re not just trying to keep a scorecard so Penn can say we’re more diverse,” Furda said. “This isn’t just to say we have ‘X’ percent of ‘Y,’ it’s how that matches up with the academic offerings here, how this plays out on Locust Walk every day … that’s where we realize the value of diversity.”

The brief co-signed by Penn makes a similar claim, arguing that schools should not only be permitted to achieve diversity through “mechanistic policies.”

Should the court rule against UT, it may simply hold that the university’s affirmative action policy is inconsistent with standards created by a 2003 case on race-based affirmative action, Grutter v. Bollinger.

Given the change in Supreme Court justices since that time, however, Law School professor and constitutional law expert Kermit Roosevelt believes the court is likely hearing the case to reexamine Grutter and the constitutionality of affirmative action as a whole.

“The idea that the purpose of the Equal Protection Clause is to prevent society from making progress toward racial equality is absurd,” Roosevelt said. “I do not think that any sensible understanding of the Equal Protection Clause would prohibit race-based affirmative action.”

Opponents of UT’s practice, though, argue that race is an unnecessary factor for the university, since its policy to admit all students in the top 10 percent of their high school class already creates substantial diversity. Some argue that focusing on race distracts schools from more important measures of diversity.

Richard Kahlenberg, a senior fellow at The Century Foundation and author of “The Remedy: Class, Race, and Affirmative Action,” believes that if schools are prohibited from explicitly taking race into account, they will be encouraged to recruit and admit more lower-income students as a way of indirectly promoting racial diversity.

“I’ve been a long-time advocate of universities considering economic status in admissions, giving a break to low-income and working-class students of all races,” he said.

Although Penn, unlike UT, is a private school, it receives some federal funding, as do most other private universities. Roosevelt said that should the court strike down UT’s policy, another round of litigation would ensue, raising the question of whether the Fisher decision would govern private schools’ admissions practices.

At the end of the day, White believes any decision would have broad impacts on schools across the country.

“The courts have long incorporated the constitutional standards barring racial discrimination into Title VI of the Civil Rights Act — which prohibits race discrimination in programs that receive federal funding. So while not directly applicable, it will effectively govern all admissions practices,” White said. “Whatever the Supreme Court decides in the UT case will effectively apply to public and private institutions alike.”

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