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ASA Submits Amicus Brief in U.S. Supreme Court Case on Affirmative Action in College Admissions

by William T. Bielby, ASA President

On April 1, 2003, the United States Supreme Court will hear oral arguments in the lawsuits challenging the use of race in admissions at the University of Michigan. While the specific cases before the Court involve undergraduate (Gratz v. Bollinger, et al.) and law school (Grutter v. Bollinger, et al.) admissions at Michigan, the impact of the court’s decisions are likely to be more far-reaching than the 25-year-old Bakke decision on race-conscious admissions. Should the court’s ruling overturn Bakke and declare the use of race unconstitutional, admissions procedures and financial aid programs would be affected in both public and private institutions throughout the United States.

In early September, in response to a member resolution approved at ASA’s 2002 Business Meeting, Council authorized ASA to develop an amicus brief that would summarize sociological research that addresses the need for considering race as a factor in college admissions. Officially, ASA’s submission is on behalf of the University of Michigan Law School in the Grutter case and the Student Intervenors (minority students who were granted permission by the court to intervene as co-defendants), but the issues raised in the brief also apply to undergraduate admissions to the College of Literature, Science and the Arts (i.e., the Gratz case).

Council authorized a subcommittee led by Past-President Barbara Reskin of the University of Washington to assemble a task force of sociologists with expertise on race and discrimination, who were charged with identifying and synthesizing the scholarship relevant to the Michigan cases. Reskin volunteered to draw upon task force drafts to compile the final document. Participating on the Amicus Task Force with Reskin were Walter Allen (University of California-Los Angeles), William Bielby (University of California-Santa Barbara), Laura Gomez (University of California-Los Angeles), Cedric Herring (University of Illinois-Chicago), Sam Lucas (University of California-Berkeley), Doug Massey (University of Pennsylvania), Ruben Rumbaut (University of California-Irvine), and ASA Executive Officer Sally Hillsman.

Preliminary discussions were conducted via conference call in December, and partial drafts on specific topics were prepared by task force members in advance of a two-day meeting held at the ASA Executive Office in mid-January. The meeting was both an exhilarating and exhausting experience for everyone involved. There was spirited debate and discussion, considerable writing and rewriting, and seemingly endless quests to track down relevant articles, data, and citations. By the meeting’s end, substantial portions of the brief had been drafted in rough form, but at that point two things were clear: on the one hand, we were covering much more scholarship than could be included in the brief, and on the other, significant gaps remained in our coverage of relevant research.

Facing a hard deadline of mid-February, Reskin took the drafts from the task force and worked day and night (literally) to identify and incorporate additional research and to refine the argument to address as effectively as possible the issues before the court. The brief itself had to be submitted not directly by the ASA, but by attorneys with legal standing to practice before the Supreme Court, and Reskin was able to rely upon the guidance of two highly accomplished attorneys—Deborah Merritt and Bill Lann Lee—who provided their services pro bono. Merritt, a distinguished law professor at Ohio State University, who has collaborated with Reskin on research on gender stratification in law, clerked for both Justice Ruth Bader Ginsburg (in the Court of Appeals) and Justice Sandra Day O’Connor (in the Supreme Court). Bill Lann Lee, who served as Assistant Attorney General for Civil Rights in the Clinton administration, is now a Partner with Leiff Cabraser Heimann & Bernstein, specializing in civil and human rights practice. Merritt and Lee crafted the legal argument, which provides the framework for the social science evidence presented in the brief. In addition, Merritt worked closely with Reskin in writing and rewriting final drafts, which needed to conform both in physical form and legal phrasing to a highly formal format prescribed by the court.

The ASA brief (accessible at www.asanet.org/media/AmicusBrief_ASA.pdf) summarizes social science research, arguing that race is a defining life experience of persons of color in the United States. It explains how race influences the neighborhood contexts where African Americans, Latinos, Native Americans, and other persons of color are raised as children and live as adults, and how it profoundly affects their experiences in schools. Effective legal arguments must frame the issue in constitutional terms recognizable to the justices. Thus, the ASA brief states that the centrality of race in people’s lives warrants universities’ compelling interest in considering race among other life experiences. The brief concludes that prohibiting the consideration of race “would deny admissions officers crucial information to contextualize other life experiences and accurately measure academic performance.” Addressing an important legal issue in the Michigan cases, the brief explains why individualized consideration of race in the context of an entire applicant file is appropriately narrowly tailored, in contrast to plans such as those that guarantee admission to the top 10 percent of high school graduates, which treat all applicants above the threshold identically and have proven ineffective in recent research by Marta Tienda and her colleagues in promoting genuine racial and ethnic diversity.

Council approved the ASA amicus brief at its February 2003 meeting. Other signatories to the ASA brief are the Law and Society Association, the Society for the Study of Social Problems, the Association of Black Sociologists, and Sociologists for Women in Society (SWS). The American Psychological Association submitted a separate brief, as did the American Educational Research Association. It is anticipated that more amicus briefs will be submitted in the Michigan cases than in any other matter to come before the Supreme Court. Some 200 amicus briefs were filed in support of the university and many of them, as well as other legal documents, can be found at the University of Michigan website (www.umich.edu/~urel/admissions/legal/).

Reskin described her experience in putting together the final draft as similar to “running a marathon.” Assisting her in the effort were graduate students at the University of Washington (Alesha Durfee, Beth Hirsh, Nika Kabiri, Amon Emeka, Nadia Morgan, and Jen Hook), as well as numerous sociologists from across the country who responded to last-minute appeals for suggestions for additional research to incorporate into the brief. Reskin and the Amicus Task Force also received extraordinary support from Executive Officer Sally Hillsman and her staff, especially Torrey Androski. SWS also provided financial resources in support of the brief’s development. All of the sociologists and the attorneys participating in producing the brief volunteered their time. ASA’s Sydney S. Spivack Program in Applied Social Research and Social Policy supported some of the expenses associated with publishing the brief.

Although Reskin said the work on the brief was among the hardest things she has ever done, she said she would do it again in a minute. “We have an enormous amount of first-rate scholarship that is highly relevant to major public policy decisions.” She hopes that the ASA will continue to find ways to bring its scholarship to the fore in the pursuit of social justice.