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Legal Analysis of University of Michigan Decisions by Leading Constitutional Scholars Supports Diversity in Higher Education and Beyond

July 8, 2003

Under the auspices of The Civil Rights Project at Harvard University, a group of the nation's leading constitutional law scholars has issued a legal analysis of the University of Michigan affirmative action cases that finds strong support for race-conscious admissions in higher education and for other types of affirmative action policies. Entitled Diversity Reaffirmed: A Legal Analysis of the University of Michigan Affirmative Action Cases, the 30-page joint statement of constitutional law scholars assesses the impact of the recent U.S. Supreme Court decisions upholding the constitutionality of race-conscious admissions policies designed to promote student body diversity.

Among the legal scholars joining the statement are: Erwin Chemerinsky (University of Southern California), Drew Days III (Yale), Richard Fallon (Harvard), Lani Guinier (Harvard), Pamela S. Karlan (Stanford), Kenneth L. Karst (UCLA), Frank Michelman (Harvard), Eric Schnapper (University of Washington), Laurence H. Tribe (Harvard), and Mark Tushnet (Georgetown), as well as Christopher Edley, Jr., Professor of Law at the Harvard Law School and co-director of The Civil Rights Project, and Angelo Ancheta, Director of Legal and Policy Advocacy Programs at The Civil Rights Project.

The joint statement finds solid support in the Supreme Court's Grutter v. Bollinger decision for the use of student body diversity as a justification for policies that employ race as a "plus" factor among many factors considered in selective admissions. The Court's broad language in the Grutter case has important implications for the use of diversity in higher education policy making, as well as in K-12 education and in employment. The joint statement also analyzes the limitations imposed by the Supreme Court's ruling in Gratz v. Bollinger, where the Court struck down the University of Michigan's undergraduate admissions policy for lacking the necessary flexibility and individualized consideration of applicants needed to comply with the constitution.

Diversity Reaffirmed examines many of the new requirements imposed by the Supreme Court on race-conscious admissions, such as incorporating time limits into admissions policies, considering race-neutral alternatives, and weighing the burdens on non-minority students. It also addresses several unanswered questions raised in the wake of the recent decisions, including the legality of admissions policies based on point systems, the use of goals and numerical targets in admissions, the constitutionality of race-exclusive programs, and the legality of diversity policies in K-12 education and in public employment.

CRP's Legal Director Angelo Ancheta notes: "Diversity Reaffirmed reflects a consensus among some of the nation's top legal scholars that the recent University of Michigan decisions are a powerful affirmation of diversity and race-conscious policy making in higher education. The joint statement should be a useful document for colleges and universities, policy makers, attorneys, researchers, and many others engaged in the design of affirmative action programs and other race-conscious policies."

"Diversity Reaffirmed: A Legal Analysis of the University of Michigan Affirmative Action Cases" is available on-line at The Civil Rights Project web site: www.civilrightsproject.harvard.edu

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The Civil Rights Project is an interdisciplinary initiative that was founded in 1996. Its central mission is to mobilize the resources of Harvard and the broader academic community in support of the struggle for racial and ethnic justice. By building strong relationships among researchers, community organizations, and policy makers, we hope to raise the level of discourse on targeted issues that will affect the tone and content of many current legal and political debates. For more information about our organization, please visit The Civil Rights Project website: www.civilrightsproject.harvard.edu

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