Penn Law professor submits amicus brief in favor of race-based affirmative action


Theodore Ruger submitted the brief with other coaches and administrators in Supreme Court case




In a Supreme Court case revisiting the constitutionality of affirmative action, a Law School professor and some basketball coaches are picking sides.

Penn Law professor Theodore Ruger filed an amicus brief in August on behalf of the National Association of Basketball Coaches, the Women’s Basketball Coaches Association, Black Coaches & Administrators and 43 others defending race-based affirmative action. Several other groups, including Penn and other Ivy League universities, have filed amicus briefs in this case, which will determine whether race-based affirmative action in the University of Texas at Austin is constitutional.

In the Supreme Court case, Fisher v. University of Texas at Austin, Abigail Fisher, a white student who was denied admission to the school, is arguing that race-based affirmative action is unconstitutional.

Including Ruger’s, there are 73 amicus briefs in support of the respondents and 17 in support of the petitioner.

“Our hope is that the Supreme Court will make no change in existing law,” said Ruger, who wrote the brief on a pro-bono basis and personally agrees with the coaches’ point of view.

Penn President Amy Gutmann also hopes the Supreme Court will fall in support of affirmative action. “I think that the outcome of the case will affect all students and all universities,” she said. “If the court upholds [the 2003 race-based affirmative action case Grutter v. Bollinger], that will be for the good. If the court does not, that will affect recruitment of students, including athletes.”

Grutter v. Bollinger affirmed the constitutionality of affirmative action policies at University of Michigan School of Law.

In the brief, Ruger argues that abolishing affirmative action may reduce racial diversity on college campuses and that “our athletes do not, and should not, exist on an athletic department island segregated from the rest of the university.”

This was the case at Penn, when Jim Haney, a 1971 Engineering graduate and the executive director of the NABC, played varsity basketball here.

“At that time, the majority of African-American students were athletes,” he said. The composition of the basketball team was “very different from where I grew up in Western Pennsylvania,” he added.

Today, Haney explained, roughly 65 percent of college basketball players are minority students, most of which are black.

Based on personal experience, he believes a diverse campus benefits students of all races. “Education goes beyond reading books and sitting in classrooms,” Haney said. An important aspect of college life, he said, is “interaction with people of different backgrounds.”

And Haney believes that basketball exemplifies this. “Sports bears witness to cooperation and interactions between whites and African Americans particularly in basketball,” he said.

The increasing racial diversity on campus also influenced Jay Rosner, a NABC consultant and 1971 College graduate.

Rosner has been passionate about basketball since his days in Penn. He remembered watching Haney on the basketball court, where he was a regular. “I lived at the Palestra,” he said.

Though it was much more homogeneous than today, “Penn had some diversity,” Rosner said. He remembers taking the first class on black history offered at Penn — taught by public policy and history professor Theodore Hershberg.

“It had a very profound effect on me,” he added.

Rosner, who is also the executive director of the Princeton Review Foundation, which provides test preparation resources to minority students, testified in support of affirmative action in the Grutter v. Bollinger case.

Haney and Rosney, who were acquaintances during their Penn years, both believe that affirmative action has a positive effect on college life through the racial diversity it helps create. But some opponents of affirmative action believe diversity can be achieved through other means.

Richard Kahlenberg, a senior fellow at The Century Foundation and author of “The Remedy: Class, Race, and Affirmative Action,” citing the works of journalist Daniel Golden, believes that “athletic preferences tend to benefit white and privileged students disproportionately.”

Kahlenberg agrees institutions should aim for racial and ethnical diversity, but disagrees that “using race is the only way to get there.” He believes universities should implement socioeconomic affirmative action instead, taking the emphasis off race, and aim for “a society where race doesn’t count.”

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