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George Vlahakis
IU Media Relations
gvlahaki@indiana.edu
812-855-0846

Jane Jankowski
IU Media Relations
jajankow@indiana.edu
812-856-0744

Last modified: Wednesday, June 18, 2003

Media advisory: U.S. Supreme Court examines affirmative action in higher education

EDITORS: The U.S. Supreme Court on June 23 announced its decisions in two lawsuits involving the University of Michigan and its collegiate admissions policies. Below is information about Indiana University faculty, staff and students who are available to offer perspectives, based on their expertise in law, political science and education. You are invited to contact them directly. If you need further assistance in reaching them, contact George Vlahakis at 812-855-0846 or gvlahaki@indiana.edu.

IU filed an amicus brief with the court in support of the University of Michigan in its affirmative action admissions policy case Grutter v. Bollinger. Information is available online at http://newsinfo.iu.edu/news/page/normal/790.html.

If the Supreme Court holds that race can no longer be considered in admission, these decisions will have devastating consequences on the nation's most selective institutions and minority enrollment at top-tier universities will plummet, according to Suzanne Eckes, IU Bloomington assistant professor of educational leadership, who formerly was a lawyer and a high school teacher in the Mississippi Delta with the Teach for America program. "The Bush administration and others opposed to race-conscious admissions programs point out that schools can still recruit a student body by relying on race-neutral factors. This assumption, however, is not the case," Eckes said. "As noted in Grutter, race-neutral alternatives were not enough to enroll a critical mass of under-represented minority students. Other race-neutral plans such as socio-economic considerations will also fail to create a critical mass of minority students. It is true that there is a strong correlation between poverty and race, but there are certainly more poor white students than poor minority students. ... The consideration of socio-economics will not lead to an ethnically diverse student body." Eckes has studied the case and the issues involved extensively and will soon publish a paper on the subject. She can be reached at 812-856-8376 or seckes@indiana.edu.

The impact of the decisions in the University of Michigan affirmative action cases will tell us a lot about the morals, values and the heart of American society, said Kevin Brown, professor of law at IU Bloomington. The consequences of these decisions for America's minorities, particularly African Americans and Latinos, will be tremendous. "Despite the tremendous successes of some members of the various minority communities, all important social statistics -- including life expectancy, wealth, income, education and political power -- reveal that the African-American and Latino communities do not participate in the bounties of American society in numbers anywhere reflecting their percentage of the population," Brown said. "The cause of this present-day reality is obvious. For the first 335 years of the experience of blacks in America, their desire to participate in the advantages of this society were confronted not by glass ceilings, but by outright concrete social barriers. This was true despite the fact that three amendments, including the 14th Amendment, which will be used to decide these cases, were added to the Constitution after the Civil War; the pervading purpose of which was to protect the freedom and rights of blacks." Brown said it has only been in the last 50 years that race discrimination has been considered problematic, and only in the last 40 years has race been employed to dismantle the "structures of discrimination that were built over three centuries of racial oppression." He said, "the ultimate irony could be that one of the very amendments added to the Constitution to protect the rights of blacks becomes interpreted in such a way that it is used to reduce the opportunities for their descendants." Brown is the author of the forthcoming book, Race, Law and Education in the Post-Desegregation Era. He can be reached at 317-272-0125 (h) or at brownkd@indiana.edu.

These cases will say a lot about whether the pursuit of diversity is legitimate for college admissions or for other important social opportunities, according to Judith Lynn Failer, associate professor of political science and American studies. "Part of what's at stake in these cases is what it means to treat citizens as equals. There are a lot of different ways of understanding equality," said Failer, author of the 2002 book, Who Qualifies for Rights? Homelessness, Mental Illness, and Civil Commitment (Cornell University Press). One reason why the issue is so unclear in the law is that the Constitution did not include the word "equality" until the 14th Amendment's Equal Protection Clause, which granted citizenship and extended rights to former slaves. To some, the constitutional requirement for equality means that every individual should be treated the same, she said. In this view, every applicant should meet the same criteria for admission. "To others, equality means that all groups should receive equal treatment. In this view, it is important to ensure that different ethnic, racial and religious groups are fairly represented, that schools, workplaces and other important institutions reflect the diversity of our society," she said. "In the Michigan cases, the justices will likely address what role the goal of 'diversity' in education plays in understanding the constitutional mandate of 'equal protection of the laws.' This is important for college admissions, but it is also important for understanding larger issues of equality of citizenship for all of us." Failer teaches courses in political, legal and moral theory; constitutional law and theory; and ethics and public policy. Her research interests are in the study of rights and how well their language works to protect marginalized citizens. Failer can be reached at 317-259-7893 (h) or at jfailer@indiana.edu. She will be unavailable June 21-25.

The overall impact of the University of Michigan cases on the issue of affirmative action may be surprisingly limited, according to Patrick L. Baude, the Ralph F. Fuchs Professor of Law and Public Service in the IU School of Law-Bloomington. "The thing that was missing from a lot of the news coverage at the time of the argument was that this is really not an important case on the entire subject of affirmative action," Baude said. "The Supreme Court has already decided that case -- the Adarand case (Adarand Constructors v. Pena, 1995). That was the Supreme Court's definitive decision on affirmative action in employment and in double government contracting, and it was a fairly straightforward decision. ... The court hasn't changed its composition since Adarand, so you know that's their view on affirmative action in general." Baude teaches courses on constitutional law and federal jurisdiction. Occasionally, he handles test cases in state and federal courts, and he took the Vietnam-era case of Hess v. Indiana to the U.S. Supreme Court in 1973. "The crucial decision for the court is whether affirmative action in higher education is going to be treated like all other affirmative action, which means that it's not unconstitutional, but has to be justified by showing that it's narrowly tailored to pass the test for discrimination," he said. "It's not likely that the court is going to tell us definitively what is and what isn't constitutional, but mainly whether higher education is going to be treated like employment and government contracting. If so, the case likely will be sent back to the lower court, because it had proceeded under the assumption that higher education was different." Baude can be reached at 812-855-5927 or baude@indiana.edu.

In these cases, the Supreme Court is trying to settle unresolved issues left by the Bakke decision, according to Daniel O. Conkle, the Robert H. McKinney Professor of Law in the IU School of Law-Bloomington. The 1978 decision in University of California Regents v. Bakke allowed for the consideration of race in university admissions. "Basically you have continued uncertainty, conflicting rulings by different courts of appeals as to whether Justice Powell's opinion in the Bakke case is controlling or not controlling," Conkle said. "Whether the court will resolve all of the uncertainty remains to be seen. We could have considerable uncertainty still." He expects that the decision will be close, probably 5-4, based on past rulings. "Bakke was decided in a way that left one justice controlling the decision. If we now get a clear opinion of five justices, that will be very significant," he said. Conkle, who teaches constitutional law, can be reached at 812-855-4331 or conkle@indiana.edu.

The Supreme Court's upcoming affirmative action decision will provide guidance on a critical issue, according to Professor David Orentlicher, who teaches constitutional law in the IU School of Law-Indianapolis:How should universities balance the need to provide an optimal educational experience with the need to ensure that individuals are judged by their abilities and character and not their race or ethnicity? Orentlicher is the author of "Affirmative Action and Texas' Ten Percent Solution: Improving Diversity and Quality," published in the Notre Dame Law Review. Many institutions of higher education, with the permission of the U.S. Supreme Court in University of California Regents v. Bakke (1978), have taken an applicant's race into account in the same way they have taken into account an applicant's musical talent, athletic ability, or place of residence -- as a measure of diversity, Orentlicher said. Recognizing that students benefit from exposure to a broad range of perspectives, these schools have tried to ensure that their student bodies include people not only of different religions, economic backgrounds and geographic location, but also of different races and ethnicity, he said. "Laudable as the goal of diversity is, however, taking race into account runs up against the principle that one's race or ethnicity should be irrelevant to one's opportunities in life," Orentlicher said. "Critics of affirmative action observe that our Constitution is 'colorblind' and that universities must not advantage or disadvantage an applicant on the basis of the applicant's race or ethnicity. The Supreme Court will indicate how we should balance these two important and conflicting principles." Orentlicher may be reached at 317-274-4993 or 312-1514 (pager).

Other perspectives on this case are available from:

Sheila Kennedy, assistant professor in the School of Public and Environmental Affairs and the Center for Urban Policy and the Environment at IUPUI. She is an expert in civil liberties, civil rights and rule of law. She can be reached at 317-274-2895.

Irene Queiro-Tajalli, Marion Wagner and Margaret Adamek, who are the directors of the bachelor's, master's, and Ph.D. programs respectively in the School of Social Work at IUPUI. They have expertise in the areas of diversity and affirmative action. Queiro-Tajalli can be reached at 317-274-6725. Wagner can be reached at 317-274-6733. Adamek can be reached at 317-274-6730.

R. George Wright, professor of law at the IU School of Law-Indianapolis. He is an expert in constitutional law. He can be reached at 317-278-4794.

Tameka Clark, community service chair of the Black Law Students Association at the IU School of Law-Indianapolis. She participated in the University of Michigan affirmative action rally in Washington, D.C. She can be reached at 413-6150 or tdclark@iupui.edu.