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Schools to file brief supporting Michigan

| Tuesday, Feb. 18, 2003

Led by Carnegie Mellon University, 38 private institutions around the nation are scheduled to file a legal brief today urging the U.S. Supreme Court to allow schools to keep using race as a factor in admissions.

The list includes nine colleges and universities in Pennsylvania, including Duquesne University. The University of Michigan's affirmative action programs in undergraduate and law school admissions are being challenged by white students and the Bush administration.

'I'm pretty confident to say we've not taken the lead in drafting a brief before the Supreme Court" before, said CMU President Jared L. Cohon.

The coalition also includes such nationally known schools as California Institute of Technology, Johns Hopkins University and Washington University in St. Louis. The University of Pittsburgh and Penn State University have not joined the brief, but support Michigan's position.

The group defended Michigan because it is concerned that the federal government might apply a ruling that would ban the consideration of race in admissions to them.

"Though Michigan is a public university, there is a tradition or custom, maybe a legal requirement, that extends a court decision like this to any organization, public or private, that receives federal dollars," Cohon said.

The brief by the private schools was written by a four-member team at Reed Smith, a Downtown law firm. The leader of the team, attorney Thomas McGough, had served as a clerk for Chief Justice William Rehnquist.

"At the end of the day we have a brief that both the university and the other schools are proud of and one we hope will help influence the court," said attorney Gary Kaplan, a partner in the firm who helped prepare the brief.

Duquesne disagrees with Michigan's undergraduate admissions programs that awarded points to minority applicants.

"However, we do believe that we have to have the ability to consider race as one factor among others in admissions and financial aid," said Duquesne spokesman Dave Mastovich. "Otherwise, we would not be able to create the diverse teaching and learning environment that's part of our mission."

He said Duquesne judges applicants based on their high school curriculum, grade-point average, extracurricular activities, essays, letters of recommendation, test scores, leadership ability and community service.

Athletic talent, musical ability, race, and relationship to alumni are part of that profile, Mastovich said.

CMU attorney Mary Jo Dively said it's legal for colleges to give preference for factors such as athletic talent that are not prohibited in the U.S. Constitution. Discrimination on the basis of race, however, is banned by the constitution -- prompting the lawsuit against the University of Michigan.

In arguing to keep affirmative action, Dively said Carnegie Mellon believes it has a moral, if not legal, right to make up for the adverse effects of the SAT on black students. She said they score about 100 points lower than whites, but have the same success when they enroll at the university.

Dively sees the court being split 4-4 on the Michigan cases with Justice Sandra Day O'Connor being the swing vote. She said the court may split on the two cases, approving the undergraduate admissions system but overturning the law school admissions process.

Overturning Michigan's law school admissions would be a mistake, Dively said, because she does not consider it a quota system, a method previously overturned by the court.

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