The Supreme Court announced early in December that it would consider two University of Michigan affirmative action cases during its current term, which ends in June 2003. This will mark the first time that the Supreme Court has directly considered affirmative action since University of California Regents v. Bakke in 1978. The case has the potential to affect the implementation of affirmative action for years to come.
The two cases the Supreme Court will consider are Grutter v. Bollinger, a case against the University of Michigan Law School, and Gratz v. Bollinger, a case regarding undergraduate admissions at the University of Michigan.
The colleges filing the brief want to make it clear that the Supreme Court's decision will affect more than just large public institutions. "The position is that small selective colleges have educational reasons for orienting their admissions programs toward increasing the diversity of their classes in all sorts of ways, including but not limited to ethnic diversity," said Chuck Sims '71, who is the lawyer responsible for the brief and attended Yale Law School with Gerety. "The court ought to understand that the proposals that were passed in Texas, Florida and California for the college admissions process can't possibly work at private colleges. The court needs to understand that if they decide that way it could actively segregate smaller colleges," Sims added.
All institutions that receive federal aid will be affected by the Court's decision regarding the constitutionality of the University of Michigan's admissions policy because of Title VI of the Civil Rights Act of 1964. The act states that "No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
As all of the top institutions, including the College, receive federal funding to some degree. The Supreme Court's decision on this case is relevant to larger institutions as well as smaller ones such as the College and the other New England Small College Athletic Conference (NESCAC) schools.
"Research and experience suggests that for selective schools like the University of Michigan, and even more so for small, highly selective, largely private schools like [the schools filing the amicus brief], prohibiting the consideration of race as one among all the other kinds of diversity consciously aimed for will have a predictable re-segregating effect," states a recent draft of the brief.
Sims said he volunteered to work on the brief because he felt strongly that the Court should hear not solely from larger schools.
"I contacted [Gerety] and asked him if [the College] was doing anything. He contacted the heads of the NESCAC schools and everyone that he's contacted so far is joining," said Sims. "We have an important story to tell the court. We can let the court know how grave the impact would be on private colleges."
A divided 6th Circuit U.S. Court of Appeals upheld the University of Michigan Law School's admissions practices in May, allowing that the Constitution can be read to support colleges and graduate schools that are seeking diversity in their student body, so long as the school avoids a fixed quota system.
In addition, a Federal District Court ruled that the system for admitting students to the University of Michigan was legal at the end of 2000.
While the College does not use racial quotas or officially practice affirmative action, race is one of many factors the admissions staff considers when making admissions decisions.
"The admission processes at Amherst are very similar to what law school admissions do with regards to having basically the same school size and applicant pool size," said Sims.
Bowdoin College uses similar admissions policies to those of the College. Barry Mills, the president of Bowdoin, has been involved in filing the brief.
"Bowdoin reviews every application carefully and takes into account all of the characteristics of its applicants in order to create a community that is intellectually vibrant," said Mills. "We consider race among all of the factors generally considered in admissions cases and seek to create a class each year that represents what America is today. We have not considered any change in our admissions policies since the Michigan case,"
President Gerety said that the amicus brief would have a "moderate" impact on the judges' decision in the case, adding that as many as 100 or even 200 such briefs will be filed in the case.
The amicus brief will be filed by the due date, Feb. 18, at which point it will be available to the Supreme Court justices. The Supreme Court will begin hearing oral arguments for the case on April 8.