High Court Will Rule On Merits Of Diversity

Piscataway Schools decided to layoff Sharon Taxman in 1989 instead of her equally-qualified black co-worker. With this single case, the Supreme Court may make a pivotal ruling on affirmative action this year.

The American Council on Education (ACE), along with 24 related organizations, asked the Court in a recent brief to confine the scope 'of its decision to the virtually unknown New Jersey school district-and far away from university admissions committees.

But many fear the Court may not heed these pleas. Recent court cases and new state laws nationwide have challenged affirmative action and with it the ability of colleges and universities to use race as a criteria in admissions.

The Court sanctified race as an admissions factor in 1978 in the landmark University of California v. Bakke decision. Piscataway Board of Education V. Taxman threatens to overturn Bakke.

The case is on appeal from the Third Circuit, which ruled that the board could never use diversity as a reason for making employment decisions based on race. The brief asks the Court to "reject the unnecessarily broad pronouncement" made by the lower court.

The Court could rule at one of three levels of scope, from very narrow to quite broad. It could limit its decision to the Piscataway Board of Education; rule on the employment issues in the case; or speak at the most general level about affirmative action.

Proponents of racial preferences are fearful the Court will choose the second or third option. Last year, the U.S. Third District Court decided in Hopwood v. the University of Texas that the quota system employed by the Texas Law School was illegal, but it didn't stop there. The Third District judge also ruled that all racial preferences in admissions are unconstitutional.

The Supreme Court refused to hear that case, leaving the Hopwood ruling as the law of the land in three states. Because a different standard existed in the rest of the country, many theorized that the Court was waiting for a better case with which to make a definitive ruling on affirmative action.

"If I had to express a hunch, the fact that the Court took it suggests that some of the justices want to resolve these issues," said Daniel Steiner, an adjunct lecturer in public policy at the Kennedy School of Government and a former Harvard general counsel.

Steiner wrote a significant portion of the renowned amicus curiae brief in Bakke, using Harvard's admissions procedure as an example of how diversity can play a role in higher education. The brief so impressed the Court that Harvard was cited in the majority decision as an example of how diversity can be used appropriately as a criteria.

"I am not extremely hopeful that we're going to come out very well on all of this. I hope I'm wrong," Steiner said.

The associations present a forked argument, at once asking the Court not to consider diversity broadly while continuing to argue for diversity's benefits.

This tension reflects an anxiety many feel over this case, several attorneys and Court observers said.

"The Piscataway case is not a great case-it's a lousy case," Steiner said. "You urge the Court to support the state's position but it's essential to say, 'Be careful how you decide against them because there are some important values we want to preserve here.'"

Most of the brief is spent advocating the merits of diversity in higher education.

"For decades, [educators] have been working to achieve diversity in American higher education," the brief reads. "They have done this for two reasons: they know from deep experience that with greater diversity comes better education; they also know that diversity advances knowledge in ways that break down stereotyped preconceptions, thereby preparing young people for our pluralistic society."

Harvard will not file a statement of its own views with the Court as it did in Bakke, but the University's professors, publications and president are cited repeatedly in the ACE brief.

Among the items listed in the brief's bibliography are President Neil L. Rudenstine's Annual Report of 1995; an article authored by Rudenstine that was published in The Chronicle of Higher Education in 1996; and an advertisement by the Association of American Universities, which Rudenstine orchestrated, published in The New York Times in April.

Rudenstine said in a recent interview that it would be inappropriate for the Court to rule broadly in this case.

"The situation is so special-so particular...it would be unfortunate if on this particular case they made a general ruling that affected all of education," he said.

In particular, Rudenstine points out that the case deals with firing in a secondary, public school-not with admissions policies of private colleges.

Since 1995, Rudenstine has called for more research to quantify the advantages of diversity, and at a conference at Harvard last spring a number of nationally-recognized attorneys told participants that the current research on diversity is not substantial enough to withstand a court's scrutiny.

Still the ACE brief-making the best case that it can-cites "concrete findings" that diversity has positive effects.

"There is some evidence, but it's not what we would like to have," said Gary A. Orfield, professor of education and social policy. "The research is very weak in terms of its range and depth compared with the research on school desegregation."

Orfield organized the conference at Harvard last April, the goal of which was to set a research agenda to prove what educators have felt to be true for years: that diversity improves education. He says more studies are on their way.

Whether they will arrive in time remains to be seen.

"I think this could be, if not in the next 12 months, than in the next 18 to 24 months, a genuine watershed moment in terms of the kind of criteria universities and colleges have traditionally been able to apply in admissions and hiring," Rudenstine said